FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AVRIL ADAMS, 

Plaintiff-Appellant,

v.

STATE OF CALIFORNIA

DEPARTMENT OF HEALTH SERVICES,

a public entity; DONNATA No. 04-56880

MORELAND; OAKTREE

D.C. No. INVESTIGATIONS, a business entity  CV-04-07313-GAF and consumer reporting agency;

LAURENCE A. CORBIN, individually OPINION

as an investigator for Oak Tree

Investigations; PATRICA ECHARD;

LETTE BAKER; PATRICK KENNELLY,

individually and as a supervisor;

LAVONNE COEN,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Submitted December 5, 2006*

Pasadena, California

Filed February 13, 2007

Before: Harry Pregerson, David R. Thompson, and

Richard C. Tallman, Circuit Judges.

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

1803
Opinion by Judge Thompson

1804 ADAMS v. STATE OF CALIFORNIA
COUNSEL

B. Kwaku Duren, Los Angeles, California, for the appellant.

Martin H. Milas, Deputy Attorney General, Los Angeles, California, for the appellees.

OPINION

THOMPSON, Senior Circuit Judge: 

Appellant Avril Adams appeals the district court’s dismissal with prejudice of her complaint against Appellees the

California Department of Health Services (“CDHS”); CDHS

employees Donnata Moreland, La Vonne Coen, Patricia

Echard, Paulette Baker, and Patrick Kennelly; and Oaktree

Investigations and its employee, Laurence Corbin. We have

jurisdiction under 28 USCA § 1291, and we affirm the district

court’s dismissal of Adams’s complaint. 

I. BACKGROUND

In January 2001, Adams applied for a food and drug

inspector (“FDI”) position with CDHS. Food and drug inspectors are peace officers and carry firearms, investigate violations, make arrests, and travel to food storage, processing

facilities and farms. Adams was offered the position she

sought, but her actual hiring was conditioned upon her successful completion of a background investigation, including

medical and psychological evaluations. 

ADAMS v. STATE OF CALIFORNIA 1807
Adams passed the psychological evaluation, but Dr. Stephen G. Weyers notified her that he had recommended restrictions on her ability to perform activities that required maximal

exertion and balance. CDHS then advised Adams it was

unable to accommodate her medical restrictions and it withdrew the conditional job offer. Thereafter, Adams took a new

treadmill stress test, and Dr. Weyers medically approved her

without limitation for the food and drug investigator position.

CDHS then withdrew its medical disqualification of Adams

and notified her it would resume her selection process. Adams

objected to further investigation. Thereafter, CDHS notified

her that it rescinded its conditional offer of employment. Four

days later, the State Personnel Board (“SPB”) ruled on

Adams’s appeal of Dr. Weyers’s decision to disqualify her for

medical reasons. Because Dr. Weyers subsequently approved

her, SPB granted Adams’s appeal and advised her she would

be appointed to the FDI position within 120 days unless she

was unsuccessful in the balance of the selection process. 

On April 1, 2003, Adams filed a petition for rehearing with

the SPB. CDHS filed a response to Adams’s petition, stating

that it withdrew Adams’s conditional offer of employment the

second time because, during the completion of the investigation process, questions arose regarding Adams’s suitability as

a peace officer. The response detailed Adams’s behavior during the selection process, which included challenging a CDHS

employee to a race during the SPB hearing, making numerous

phone calls, and sending emails and letters to CDHS employees in which Adams’s tone was “rude,” “discourteous,”

“abrupt,” “angry,” and “challenging in a demeaning way.”

The response concluded that Adams did not possess the interpersonal skills, sound judgment, or the ability to follow directions necessary for being an effective peace officer. The SPB

denied Adams’s petition for rehearing on June 17, 2003. 

Adams filed a complaint in state court on November 10,

2003, naming CDHS, Coen, Moreland, and Dr. Weyers as

1808 ADAMS v. STATE OF CALIFORNIA
defendants. Adams asserted claims for (1) retaliation in violation of 42 USCA § 1983; (2) violations of the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq., and the California

Fair Employment and Housing Act, Cal. Gov’t Code § 12900

et seq.; (3) denial of due process and civil rights in violation

of 42 USCA §§ 1981, 1983, 1985; (4) breach of contract; (5)

breach of the implied covenant of good faith and fair dealing;

(6) negligence; and (7) declaratory relief. Adams sought damages and a declaration from the court that CDHS’s withdrawal

of the conditional offer of employment was unlawful. 

Adams’s complaint also detailed the facts behind the

reopening of the background investigation to support her

claims for negligence, violations of 42 USCA §§ 198142

U.S.C. §§ 1981, 1983, 1985, breach of contract, and declaratory relief. In her complaint, Adams did not allege separate

claims under the Fair Credit Reporting Act (“FCRA”), 15

USCA § 1681 et seq., or state privacy law, although she

alleged that the act of resuming the background investigation

was prejudicial, illegal, unreasonable, discriminatory, retaliatory, and arguably illegal in violation of the FCRA and due

process. 

Adams’s action was removed to federal court on December

8, 2003. Adams v. Cal. Dep’t of Health Servs., No. CV-03-

8920 (C.D. Cal. filed Dec. 8, 2003). The district court issued

a scheduling order setting March 26, 2004, as the deadline for

filing motions to amend the complaint or add additional parties. 

On July 1, 2004, well past the March 26, 2004 deadline set

in the scheduling order, Adams filed a motion for leave to

amend her complaint. Adams wanted to add as defendants

Oaktree Investigations and Oaktree investigator Corbin, as

well as CDHS employees Echard, Baker, and Kennelly. In her

proposed amended complaint she alleged four additional

claims: (1) violation of the FCRA; (2) violation of the California Investigative Consumer Reporting Agencies Act

ADAMS v. STATE OF CALIFORNIA 1809
(“ICRA”), CA CIVIL § 1786 et seq.; (3) infringement of her

civil and constitutional rights in violation of 42 USCA

§§ 198142 U.S.C. §§ 1981, 1983, 1985; and (4) declaratory

relief. 

Finding that Adams failed to demonstrate good cause for

the undue delay in seeking leave to amend, and that granting

her motion to amend would prejudice the defendants already

named in her complaint, the district court denied Adams’s

motion as untimely. The action then proceeded to trial and a

jury found in favor of the defendants. Adams appealed the

denial of her motion for leave to amend, among other issues,

to our court. In a memorandum disposition filed February 7,

2007, we have affirmed the district court’s decisions and the

judgment in that first case. Adams v. State of Cal.Dep’t of

Health Servs., No. 05-56857 (9th Cir. filed February 7, 2007).

On September 2, 2004, after the district court denied her

motion for leave to amend in the first case, Adams filed the

complaint in this present case. In her complaint in this case,

Adams set forth the four additional claims she had sought to

add by her previously denied motion for leave to amend her

complaint in the first case. In the present case, the district

court determined that Adams’s newly filed complaint was

duplicative of the complaint she had previously filed in the

other case, and the court dismissed the new complaint with

prejudice. This appeal followed. 

II. STANDARD OF REVIEW

District courts retain broad discretion to control their dockets and “[i]n the exercise of that power they may impose sanctions including, where appropriate, default or dismissal.”

Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d

829, 831 (9th Cir. 1986); see also Link v. Wabash R.R. Co.,

370 U.S. 626, 629-30 (1962). We review for abuse of discretion the district court’s dismissal of Adams’s complaint. A

district court has discretion to dismiss a later-filed action, to

1810 ADAMS v. STATE OF CALIFORNIA
stay that action pending resolution of the previously filed

action, or to consolidate both actions. See Curtis v. Citibank,

N.A., 226 F.3d 133, 138-39 (2d Cir. 2000); Walton v. Eaton

Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en banc) (cited with

approval in Russ v. Standard Ins. Co., 120 F.3d 988, 990 (9th

Cir. 1997)). 

III. DISCUSSION

[1] The rule against duplicative litigation is distinct from,

but closely related to, the doctrine of claim preclusion, and the

two doctrines serve many of the same policies. Dismissal of

a duplicative lawsuit, like claim preclusion (sometimes

referred to as res judicata) serves judicial economy and the

“comprehensive disposition of litigation.” Kerotest Mfg. Co.

v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183 (1952). Moreover, dismissal of a duplicative suit protects the parties from

vexatious and expensive litigation and serves the societal

interest in bringing an end to disputes. Cf. Allen v. McCurry,

449 U.S. 90, 94 (1980) (res judicata relieves parties of cost

of multiple lawsuits, conserves judicial resources, and encourages reliance on adjudication); Brown v. Felsen, 442 U.S.

127, 131 (1979) (res judicata “encourages reliance on judicial

decisions, bars vexatious litigation, and frees the courts to

resolve other disputes”); 18 Moore’s Federal Practice

¶ 131.12 (3d ed. 1999). 

Dismissal of a duplicative suit is an appropriate remedy

because plaintiffs have “no right to maintain two separate

actions involving the same subject matter at the same time in

the same court and against the same defendant.” Walton, 563

F.2d at 70; see also Curtis, 226 F.3d at 138-39; Oliney v.

Gardner, 771 F.2d 856, 859 (5th Cir. 1985); Zerilli v. Evening

News Ass’n, 628 F.2d 217, 222 (D.C. Cir. 1980); Sutcliffe

Storage & Warehouse Co. v. United States, 162 F.2d 849, 851

(1st Cir. 1947). 

[2] The test for whether a suit is duplicative and subject to

dismissal is substantially equivalent to the test for claim preADAMS v. STATE OF CALIFORNIA 1811
clusion. As the Supreme Court stated in United States v. The

Haytian Republic, “the true test of the sufficiency of a plea of

‘other suit pending’ in another forum [i]s the legal efficacy of

the first suit, when finally disposed of, as ‘the thing

adjudged,’ regarding the matters at issue in the second suit.”

154 U.S. 118, 124 (1894). The doctrine of claim preclusion

bars “ ‘all grounds for recovery which could have been

asserted, whether they were or not, in a prior suit between the

same parties . . . on the same cause of action, if the prior suit

concluded in a final judgment on the merits.’ ” Int’l Union of

Operating Eng’rs-Employers Constr. Indus. Pension, Welfare

& Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th

Cir. 1993) (alteration in original) (quoting Ross v. Int’l Bhd.

of Elec. Workers, 634 F.2d 453, 457 (9th Cir. 1980)); see also

Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th

Cir. 2005). 

[3] Thus, to determine whether the district court abused its

discretion in dismissing Adams’s present complaint with prejudice because it was duplicative of her first complaint, we

assess what claim preclusive effect the judgment on the merits

in her first action would have on the present action. 

A. Same Cause of Action

[4] We examine first whether the claims in Adams’s present action were based on the same claims asserted in her first

action. In determining whether successive claims are the

same, we consider four criteria:

(1) whether rights or interests established in the prior

judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially

the same evidence is presented in the two actions;

(3) whether the two suits involve infringement of the

same rights; and (4) whether the two suits arise out

of the same transactional nucleus of facts. 

1812 ADAMS v. STATE OF CALIFORNIA
Constantini v. Trans World Airlines, 681 F.2d 1199, 1201-02

(9th Cir. 1982). “The last of these criteria is the most important.” Id. at 1202. 

[5] We use a transaction test to determine whether the two

suits share a common nucleus of facts. “Whether two events

are part of the same transaction or series depends on whether

they are related to the same set of facts and whether they

could conveniently be tried together.” Western Sys., Inc. v.

Ulloa, 958 F.2d 864, 871 (9th Cir. 1992) (citing Restatement

(Second) Judgments § 24(1) (1982)). 

[6] Here, it is clear that the two actions share a common

transactional nucleus of facts. The first complaint detailed the

factual allegations surrounding the reopening of Adams’s

background investigation and used those allegations to support claims under the legal theories of negligence, violations

of 42 USCA §§ 198142 U.S.C. §§ 1981, 1983, 1985, breach

of contract, and declaratory relief. Adams’s first complaint

specifically cited as support for her claims against Coen,

Moreland, and Dr. Weyers under 42 USCA §§ 198142 U.S.C.

§§ 1981, 1983, 1985, the same negative comments from

CDHS employees during the selection process that she used

to support her claims in the present action. The present complaint differs only in that it identifies the CDHS employees

who made the negative comments, names those CDHS

employees and Corbin and Oaktree Investigations as defendants, and advances two new legal theories of recovery under

the FCRA and the ICRA. The two other claims — one under

42 U.S.C. §§ 1981, 1983, 1985 and one seeking declaratory

relief — are identical to those asserted in the first complaint.

As Adams herself concedes, the claims in both complaints

relate to the same set of facts and form a convenient trial unit

because they “disclose[ ] a cohesive narrative” of Adams’s

relationship with CDHS and the disputed withdrawal of the

conditional job offer after the continuation of the background

investigation. Mpoyo, 430 F.3d at 987. 

ADAMS v. STATE OF CALIFORNIA 1813
[7] That the additional legal theories of recovery under the

FCRA and ICRA were not raised as separate claims in

Adams’s first complaint does not by itself permit her to present those claims in a subsequent complaint, because a litigant

“is not permitted to fragment a single cause of action and to

litigate piecemeal the issues which could have been resolved

in one action.” Flynn v. State Bd. of Chiropractic Examiners,

418 F.2d 668, 668 (9th Cir. 1969) (per curiam). “Res judicata

[or claim preclusion] prevents litigation of all grounds for, or

defenses to, recovery that were previously available to the

parties, regardless of whether they were asserted or determined in the prior proceeding.” Brown, 442 U.S. at 131.

Adams “cannot avoid the bar of res judicata merely by alleging conduct by the defendant not alleged in [her] prior action

or by pleading a new legal theory.” McClain v. Apodaca, 793

F.2d 1031, 1034 (9th Cir. 1986). 

[8] It is clear that the FCRA and ICRA theories of recovery

were available to Adams in the first action because Adams

obtained the report on the reopened background investigation

from the discovery materials provided by CDHS prior to the

deadline set for filing a motion to amend the complaint.

Adams admits that she obtained this report on January 17,

2004, more than two months prior to the deadline for amending the complaint. Moreover, Adams herself posited in the

first complaint that the reopening of the background investigation was “arguably illegal based upon the Fair Credit

Reporting Act.” Therefore, the principle that “[c]laim preclusion bars the assertion of any theory of recovery that could

have been asserted in the first action,” Fund for Animals, Inc.

v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992), applies with

particular force here. 

[9] In addition, any judgment in the present action necessarily could destroy or impair rights and interests established

by the judgment in the first action. As Adams alleges in her

present complaint, both the FCRA and the ICRA require consent to and disclosure of an investigation. See 15 U.S.C.

1814 ADAMS v. STATE OF CALIFORNIA
§ 1681b(b); Cal. Civil Code §§ 1786.10-.12. However, the

central issues raised in the present complaint surrounding the

legality of the reopening of Adams’s background investigation — whether the selection process was complete after

Adams was medically cleared, whether CDHS lost the right

to resume the background investigation when it rescinded for

the first time Adams’s conditional offer of employment, or

whether the background investigation had never been completed and Adams’s consent to the investigation remained

valid — were squarely raised and argued by Adams in her

claim for declaratory relief in the first complaint. 

Furthermore, although Adams argues that the additional

report she uncovered on January 17, 2004, containing the affidavits from Kennelly, Echard, and Baker, is new evidence,

the additional evidentiary detail surrounding Echard’s and

Baker’s comments “is scarcely enough to establish that the

instant lawsuit arises out of a different ‘transactional nucleus

of facts’ than that which generated the [first] suit.” Constantini, 681 F.2d at 1202. “The fact that some different evidence

may be presented in this action . . . does not defeat the bar of

res judicata.” Karr, 994 F.2d at 1430. 

Significantly, the key evidence presented during trial in the

first action regarding Adams’s claim of retaliation was the

testimony of CDHS employees Moreland and Coen regarding

Adams’s behavior during the selection process. In addition,

Kennelly, Echard, Baker and Corbin all submitted declarations in the first action regarding the information gathered

during the reopened background investigation in support of

CDHS’s motion for summary judgment. As the district court

stated in its order denying Adams’s motion for a new trial in

the first action, “[t]his case largely turned on the jury’s assessment of the credibility of the defendants, who explained why

they determined not to finalize their conditional offer of

employment to [Adams].” 

Finally, although the FCRA and the ICRA establish distinct

rights enforceable by litigants, this factor alone does not

ADAMS v. STATE OF CALIFORNIA 1815
defeat the preclusive effect of the first action. See Derish v.

San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347, 1349

(9th Cir. 1983), overruling on other grounds recognized by

Eichman v. Fotomat Corp., 759 F.2d 1434, 1437 (9th Cir.

1985). Indeed, we have applied the doctrine of claim preclusion on the ground that two claims arose out of the same

transaction, without relying upon other factors. See, e.g.,

Karr, 994 F.2d at 1430-31; Ulloa, 958 F.2d at 871; C.D.

Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.

1987). 

[10] It is clear that the claims in Adams’s present complaint

arise out of the same transactional nucleus of facts asserted in

her first action and that rights established by the judgment in

the first action could be destroyed or impaired by a judgment

in the present action. It is also plain that substantially the

same evidence was and would be presented in both actions.

B. Final Judgment on the Merits

[11] Although the district court’s order denying as untimely

Adams’s motion to amend does not satisfy the claim preclusion requirement of a final judgment, the preclusive bar here

is based not on the decision denying leave to amend, but

rather on the transactional nucleus of the facts underlying the

claims asserted in the two actions, and the requirement that a

plaintiff must bring at one time all claims against a defendant

relating to the same transaction or event. See N. Assur. Co. of

Am. v. Square D Co., 201 F.3d 84, 88 (2d Cir. 2000); Nilsen

v. City of Moss Point, 701 F.2d 556, 564 (5th Cir. 1983) (en

banc); Restatement (Second) of Judgments § 25, cmt. b

(1982) (“It is immaterial that the plaintiff in the first action

sought to prove the acts relied on in the second action and was

not permitted to do so because they were not alleged in the

complaint and an application to amend the complaint came

too late.”). As the Third Circuit stated, “ ‘the fact that the

plaintiff was denied leave to amend does not give h[er] the

right to file a second lawsuit based on the same facts.’ ” Huck

1816 ADAMS v. STATE OF CALIFORNIA
v. Sea Air Shuttle Corp., 106 F.3d 45, 50 (3d Cir. 1997) (quoting Sendi v. NCR Comten, Inc., 624 F. Supp. 1205, 1207

(E.D. Pa. 1986)). 

C. Same Parties or Privies 

[12] While Adams’s present complaint names five additional defendants, the privity requirement of claim preclusion

is satisfied because these defendants were “virtually represented” by the defendants in the first action. Although the

concept of privity traditionally applied to a narrow class of

relationships in which “a person [is] so identified in interest

with a party to former litigation that he represents precisely

the same right in respect to the subject matter involved,” we

have 419 F.3d 989 expanded the concept to include a broader

array of relationships which fit under the title of “virtual representation.” Kourtis v. Cameron, 419 F.3d 989, 996 (9th Cir.

2005) (internal quotation marks omitted). The necessary elements of virtual representation are an identity of interests and

adequate representation. 419 F.3d 989Id. Additional features

of a virtual representation relationship include “ ‘a close relationship, substantial participation, and tactical maneuvering.’ ” Id. (quoting Irwin v. Mascott, 370 F.3d 924, 930 (9th

Cir. 2004)). 

[13] Here, three of the new defendants — Patricia Echard,

Paulette Baker, and Patrick Kennelly — were employees of

CDHS at the time of the events described in both of Adams’s

complaints and had a close relationship with the defendants

named in the first complaint. See Irwin, 370 F.3d at 930-31

(finding senior corporate officer virtually represented by his

corporation). In addition, all three participated in the first

action by submitting in support of CDHS’s motion for summary judgment declarations regarding their participation in

Adams’s background investigation. Moreover, their interests

were identical to those of the defendants in the first action. 

[14] Furthermore, although the last two new defendants,

Laurence Corbin and Oaktree Investigations, were not

ADAMS v. STATE OF CALIFORNIA 1817
employees of CDHS, they maintained a close relationship

with CDHS as agents hired to conduct the background investigation and possessed an identity of interest with CDHS. Corbin and Oaktree Investigations also participated in the first

action by submitting declarations in support of CDHS’s

motion for summary judgment. 

[15] Finally, CDHS and the other defendants named in the

first complaint adequately represented the five new defendants named in the present action by consistently maintaining

that both the reopening of the background investigation and

the withdrawal of Adams’s job offer were legal and proper

under the circumstances. Cf. Kourtis, 419 F.3d at 998 (concluding no virtual representation existed where an agency

relationship existed, but the interests of the parties were

adverse). 

D. Full and Fair Opportunity to Litigate

[16] Adams filed her present complaint in an attempt to

avoid the consequences of her own delay and to circumvent

the district court’s denial of her motion for leave to amend her

first complaint. Application of claim preclusion to dismiss

Adams’s present complaint does not unfairly deprive Adams

of her day in court because Adams had a full and fair opportunity to raise and litigate in her first action the claims she now

asserts in this action. Cf. Parklane Hosiery Co. v. Shore, 439

U.S. 322, 328 (1979) (“[T]he requirement of determining

whether the party against whom an estoppel is asserted had a

full and fair opportunity to litigate is a most significant safeguard.” (internal quotation marks omitted)); Ross, 634 F.2d at

458 (“The question [before applying res judicata to bar the

second suit] is . . . whether [plaintiff] had a fair opportunity

to litigate that claim before a competent court prior to bringing it to the court below.”). 

1818 ADAMS v. STATE OF CALIFORNIA
CONCLUSION

[17] The district court did not abuse its discretion by dismissing with prejudice the duplicative complaint Adams filed

in this case. 

AFFIRMED. 

ADAMS v. STATE OF CALIFORNIA 1819