1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SEDRIC EUGENE JOHNSON, No. 1:23-cv-00437-KES-GSA (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 BRIAN CATES, et al., Doc. 11 15 Defendants. 16 17 Plaintiff, a former state prisoner proceeding pro se, filed this civil rights action seeking 18 relief under

. The matter was referred to a United States magistrate judge 19 pursuant to

(b)(1)(B) and Local Rule 302. 20 On November 28, 2023, the magistrate judge issued findings and recommendations 21 recommending that the instant action (Johnson I) be dismissed as duplicative of Johnson v. Cates, 22 No. 1:23-cv-00361 GSA (Johnson II).1 Doc. 11. The F&R recommends dismissing Johnson I, 23 which was filed in the Southern District of California on March 6, 2023, and transferred to this 24 District on March 23, 2023, as duplicative of Johnson II, which was filed on March 9, 2023, in 25 the Eastern District of California, given that Johnson I was “put on the Eastern District’s docket 26 later” than Johnson II. 27 1 On June 4, 2024, Johnson v. Cates, No. 1:23-cv-00361 GSA was reassigned to the undersigned 28 and the case number changed to 1:23-cv-00361-KES-GSA. 1 The findings and recommendations were served on plaintiff and contained notice that 2 objections were to be filed within fourteen days.

. Plaintiff did not file objections and the 3 time to do so has passed. 4 In accordance with

(b)(1), this court has conducted a de novo review of 5 this case. Having carefully reviewed the file, the court concludes that the magistrate judge’s 6 findings and recommendations to dismiss the present case (No. 1:23-cv-0437) are supported by 7 the record, although it is the earlier case by date of original filing. The date of the filing of the 8 complaint in a case, rather than the date of the transfer of a case, typically controls for purposes of 9 deciding which duplicative action should be maintained and which should be dismissed. See 1 10 Moore’s Federal Practice, Civil § 3.02. (“When two or more actions involving identical or 11 closely related claims and parties are filed in separate federal courts, the first-filed action 12 generally takes precedence, and a district court may choose to stay, transfer, or dismiss a 13 duplicative later-filed action.”) (emphasis added) (collecting cases). However, “[t]he most basic 14 aspect of the first-to-file rule is that it is discretionary,” and district courts may “in the exercise of 15 their discretion, dispense with the first-filed principle for reasons of equity.” Alltrade, Inc. v. 16 Uniweld Products, Inc.,

(9th Cir. 1991). Additionally, the “concerns justifying 17 the application of the first-to-file rule, particularly those relating to federal comity, do not apply 18 when both cases are pending before the same judge in the same court.” Rodriguez v. Taco Bell 19 Corp., No. 13-CV-1498-SAB,

, at *3 (E.D. Cal. Oct. 30, 2013). Here, plaintiff 20 filed the identical complaint in two cases within the same week. As the two cases are now before 21 the same judge, it is of no moment which of the two cases is dismissed as duplicative. 22 Accordingly, the court adopts the findings and recommendations to dismiss the present case, 23 No. 1:23-cv-0437, as duplicative. 24 Accordingly, IT IS HEREBY ORDERED: 25 1. The findings and recommendations issued November 28, 2023, Doc. 11, are adopted 26 in full; 27 2. This matter is dismissed as duplicative of Johnson v. Cates, No. 1:23-cv-00361-KES- 28 GSA; and 1 3. The Clerk of the Court is directed to close this case. 2 3 4 | ISSO ORDERED. _ 5 Dated: _ August 12, 2024 4h ‘ UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28