(PC) Gradford v. Tiexiera

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA WILLIAM J. GRADFORD, Case No. 1:19-cv-01783-NONE-SKO (PC) 12 Plaintiff, ORDER DENYING MOTION TO VACATE VOLUNTARY DISMISSAL 13 v. AND SETTLEMENT AGREEMENT IN CASE NO. 1:17-CV-00201-DAD-GSA AND TIEXIERA; MCCARTHY, CONSOLIDATE ACTION WITH CASE NO. 1:17-CV-01248-DAD-GSA 15 Defendants. (Doc. 12) 17 Before the Court is a document titled, “Plaintiff’s request [to] reset settlement conference, also all cases moved to related case 1:17-cv-01248-DAD-GSA.” (Doc. 12.) In the document, Plaintiff states, “[t]his is the exact same case that was filed with the courts in … 2017 …. case number … 1:17-cv-00201-DAD-GSA.” (Id.) In the latter case, Plaintiff and Defendants reached a settlement and filed a join stipulation for dismissal on May 7, 2019. See Gradford v. Tiexiera, et al., No. 1:17-cv-00201-DAD-GSA (Doc. 87). Plaintiff seeks to “void” the settlement agreement in that case, “reset” a settlement conference, and join the case and the present action with Case No. 1:17-cv-01248-DAD-GSA. (See Doc. 12.) The Court construes Plaintiff’s filing as a motion to (1) vacate the settlement agreement and voluntary dismissal in Gradford v. Tiexiera, et al., No. 1:17-cv-00201-DAD-GSA, pursuant to Federal Rule of Civil Procedure 60, and (2) consolidate this action with Gradford v. Flores, et al., No. 1:17-cv-01248-DAD-GSA, currently pending before the court, pursuant to Rule 42.

1 The Court DENIES Plaintiff’s motion (Doc. 12). If Plaintiff seeks to vacate the voluntary dismissal in Case No. 1:17-cv-00201-DAD-GSA, he must file a motion seeking relief in that case, not initiate a new, identical case. In addition, the Court has issued findings and recommendations to dismiss this action because it is barred by the statute of limitations. (Doc. 11.) The Court will not consolidate this case with a pending case when it should instead be dismissed as time-barred and duplicative. See Cato v. United States, 70 F.3d 1103, 1105 (9th Cir. 1995) (court may dismiss “under § 1915(d) a complaint ‘that merely repeats pending or previously litigated claims’”) (citations omitted).

IT IS SO ORDERED.

Sheila K. Oberto Dated: March 9, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE