FILED
MAR 21 2013
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM L. SCOTT, No. 11-55353
Plaintiff - Appellant, D.C. No. 2:09-cv-06496-RGK-
FMO
v.
JOHN E. POTTER, Postmaster General, MEMORANDUM *
United States Postal Service,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted February 4, 2013 **
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
William L. Scott appeals the district court’s dismissal of his action against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
John E. Potter, Postmaster General of the United States Postal Service, alleging
discrimination and retaliation in violation of the Rehabilitation Act of 1973 and
Title VII of the Civil Rights Act of 1965. Scott also appeals the district court’s
denial of his Request for Continuance of the Motion for Summary Judgment
Hearing Pursuant to Federal Rule of Civil Procedure 56(f). We have jurisdiction
under 28 U.S.C. § 1291. We review de novo the district court’s grant of summary
judgment based on res judicata, F.T.C. v. Garvey, 383 F.3d 891, 896 (9th Cir.
2004), and for abuse of discretion a denial of a Rule 56(f) application, Visa Int’l
Serv. Ass’n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986). We
affirm.
1. The district court properly dismissed Scott’s claims of discrimination and
retaliation on res judicata grounds. The doctrine of res judicata “bars any lawsuits
on any claims that were raised or could have been raised in a prior action.”
Garvey, 383 F.3d at 897 (quotation marks omitted). Res judicata applies when
there is “(1) an identity of claims; (2) a final judgment on the merits; and (3)
identity or privity between parties.” Id. (quotation marks omitted). The only
dispute here is whether there is an identity of claims between the instant action and
the prior action.
There is an identity of claims between the prior action and the instant action
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because the wrongful acts alleged in the complaints were based on the same
transactional nucleus of facts. See Owens v. Kaiser Found. Health Plan, Inc., 244
F.3d 708, 714 (9th Cir. 2001) (“The central criterion in determining whether there
is an identity of claims between the first and second adjudication is whether the
two suits arise out of the same transactional nucleus of facts.” (quotation marks
omitted)). In all three complaints, Scott alleged that, after he was rendered
disabled from a shoulder injury at work, Appellee discriminated against him due to
his disability and retaliated against him for filing Equal Employment Opportunity
claims.
The only difference among the three complaints is that the acts alleged in the
prior action occurred at a different time than the acts alleged in the instant action.
Nevertheless, Scott neither sought a stay in the prior action to pursue
administrative remedies for the wrongful acts alleged in the instant action, nor
attempted to amend his complaint to include the wrongful acts alleged in the
instant action even though all the wrongful acts occurred before the prior action
was filed in the district court. See Owens, 244 F.3d at 714-15 (“Title VII claims
are not exempt from the doctrine of res judicata where plaintiffs have neither
sought a stay from the district court for the purpose of pursuing Title VII
administrative remedies nor attempted to amend their complaint to include their
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Title VII claims.”). Thus, the instant action is barred because there is an identity
of claims and the claims could have been raised in the prior action. Garvey, 383
F.3d at 897.
2. The district court did not abuse its discretion by denying Scott’s Request for
Continuance of the Motion for Summary Judgment Hearing Pursuant to Federal
Rule of Civil Procedure 56(f). The district court properly denied Scott’s Rule 56(f)
application because Scott failed to identify specific facts that further discovery
would reveal nor did he explain why those facts would preclude summary
judgment. See Tatum v. City of San Francisco, 441 F.3d 1090, 1100 (9th Cir.
2006) (“Failure to comply with the requirements of Rule 56(f) is a proper ground
for denying relief.”) (alteration omitted). Moreover, Scott failed to identify any
effort to conduct discovery during the weeks his new counsel represented him in
the district court. See Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir.
2002) (“A district court abuses its discretion only if the movant diligently pursued
its previous discovery opportunities, and if the movant can show how allowing
additional discovery would have precluded summary judgment.” (internal
quotation marks omitted)).
AFFIRMED.
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