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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARRY SEABROOKS,

Plaintiff,

v.

BFI BROWNING FERRIS INDUSTRIES,

et al.,

Defendants.

_____________________________/

CIV. S-04-1538-FCD-PAN-PS

ORDER

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This matter was referred to the Honorable Peter A. Nowinski,

United States Magistrate Judge, pursuant to 28 U.S.C. §§ 636, et

seq., and E.D. Local Rule 72-302. On May 17, 2005, Judge

Nowinski recommended that plaintiff’s action be dismissed and

ordered he pay sanctions in the amount of $3,612.00. On May 25,

2005, plaintiff filed objections to the findings and

recommendations. 

The court has reviewed the file, including parties’ papers 

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1 The court takes judicial notice of the magistrate judge’s

findings and recommendations and this court’s orders in Seabrooks

I. Fed. R. Evid. 201. 

2

in support of, and opposition to, the motion to dismiss, the

magistrate judge’s findings and recommendations, and plaintiff’s

objections thereto. For the reasons stated herein, adopts in

part and rejects in part the findings and recommendations of the

magistrate judge.

BACKGROUND

On January 12, 2001, plaintiff, Garry Seabrooks

(“plaintiff”), filed a complaint (“Seabrooks I”) against his

former employer, Browning Ferris Industries (“BFI”), a co-worker,

and the BFI’s law firm for wrongful termination in violation of

Title VII, 42 U.S.C. § 2000e-5, and for violation of the Employee

Retirement Income Security At of 1974 (“ERISA”).1 Defendant law

firm filed a motion to dismiss, which the court granted on

September 4, 2001. On November 5, 2001, the remaining defendants

moved for summary judgment. The magistrate judge issued findings

and recommendations on August 7, 2002 recommending that the

motion be granted. By order dated September 5, 2002, the

district court adopted the magistrate judge’s findings and

recommendations. Plaintiff subsequently filed multiple motions

for reconsideration, which were denied. Plaintiff’s appeal to

the Ninth Circuit was rejected. 

Plaintiff filed the instant complaint on August 5, 2004

naming as defendants BFI and BFI’s legal counsel in Seabrooks I,

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2 Although it is an affirmative defense, Res Judicata may

be raised by motion to dismiss when, as here, resolution of the

3

the Law Offices of Paul Plevin Sullivan & Connaughton (“PPS&C”). 

The complaint alleges the same claims, for wrongful termination

in violation of Title VII, and violation of ERISA, that were

subject to final adjudication in Seabrooks I.

ANALYSIS

Defendants move to dismiss pursuant to Fed. R. Civ. P.

12(b)(6), or in the alternative, for summary adjudication

pursuant to Fed. R. Civ. P. 56(c). In ruling upon a motion to

dismiss, the court may consider only the complaint, any exhibits

thereto, and matters which may be judicially noticed pursuant to

Federal Rule of Evidence 201. See Mir v. Little Co. Of Mary

Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v.

Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042

(C.D. Cal. 1998). Because the court can resolve the motion by

reference only to the complaint, and this court’s orders in the

prior litigation, of which the court takes judicial notice, the

court treats the motion as one to dismiss, pursuant to Rule

12(b)(6). See Egan v. Teets, 251 F.2d 571, 578 (9th Cir. 1957)

(finding that district court in habeas corpus proceeding properly

took judicial notice of prior habeas corpus proceedings in same

court involving same state prisoner).

I. Motion to Dismiss

As to defendant BFI, the final adjudication in Seabrooks I

is res judicata barring plaintiff’s claims in this proceeding.2 

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issue involves no dispute of fact. Scott v. Kuhlman, 746 F.2d

1377, 1378 (9th Cir. 1984.)

4

The doctrine of res judicata bars a party from bringing a claim

if a court of competent jurisdiction has rendered final judgment

on the merits of the claim in a previous action involving the

same parties or their privies. In re International Nutronics,

Inc., 28 F.3d 965, 969 (9th Cir. 1994) cert. denied sub nom

Robertson v. Isomedix, Inc., 513 U.S. 1016 (1994)(citing In re

Jenson, 980 F.2d 1254, 1256 (9th Cir.1992)). “Res judicata bars

all grounds for recovery that could have been asserted, whether

they were or not, in a prior suit between the same parties on the

same cause of action.” Id. Seabrooks I involved the same

parties, plaintiff and BFI, and the same claims. The court

rendered a final judgment in Seabrooks I, when it granted summary

judgment of plaintiff’s claims. Thus, Res Judicata bars

plaintiff’s claims in this action. 

Defendant PPS&C was not a party to Seabrooks I; therefore

Res Judicata does not apply to plaintiff’s claims against it. 

However, plaintiff’s complaint, which alleges solely claims

relating to plaintiff’s termination of employment, fails to state

a claim against PPS&C. Plaintiff does not in fact make any

allegations in the complaint or attachment thereto, as to

actionable conduct by PPS&C. 

Accordingly, for the reasons stated above, the court adopts

the findings and recommendations of the magistrate judge that

plaintiff’s complaint should be dismissed in its entirety.

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II. Sanctions

Defendants seek sanctions for violation of Fed. R. Civ. P.

11(b) in the amount of $3,612.00. The court adopts the

magistrate judge’s findings and recommendations that sanctions

are warranted in this case, but concludes that the appropriate 

sanction is $1,000.00. 

CONCLUSION

For the foregoing reasons, the court makes the following

orders: 

(1) The Findings and Recommendations filed May 17, 2005,

are adopted as modified herein; 

(2) This action is dismissed; and

(3) Plaintiff shall pay sanctions in the amount of

$1,000.00 for violation of Fed. R. Civ. P. 11(b).

IT IS SO ORDERED.

DATED: June 28, 2005.

/s/ Frank C. Damrell Jr. 

 UNITED STATES DISTRICT JUDGE

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