Appeal from the United States District Court for the Central District of California. D.C. No. CV-90-0738-CBM. Consuelo B. Marshall, District Judge, Presiding.
Before: Canby, Kozinski, and Fernandez, Circuit Judges
Kimuel Lee appeals the district court's dismissal of his civil rights action. We affirm in part and reverse in part.
On February 14, 1990, Lee filed a civil rights action against the Sheriff's Department and John Benedict, a sheriff's deputy. He alleged that the Sheriff's Department and Benedict deprived him of his constitutional rights by authorizing and assisting the towing of his mobile home on February 15, 1989. Lee amended the complaint on June 4, 1990 to add Sheriff's Department employees Susan Cross and Linda Spradlin and to add a towing company, Coast Club Service, Inc., and its employee, Steve Morrison.*fn1 The Sheriff's Department and its employees are hereafter referred to as the County defendants.
On June 26, 1990, Coast Club and Morrison (hereafter collectively referred to as Coast Club) filed a motion to dismiss for failure to state a claim. The gravamen of Coast Club's motion was that the statute of limitations had run by the time Lee amended his complaint to add it as a party. On August 15, 1990, the County defendants filed a motion to dismiss for failure to state a claim. Thereafter, the magistrate Judge recommended that Lee's original action be dismissed with prejudice against Coast Club towing because the statute of limitations had run and dismissed without prejudice against the County defendants. As to the County defendants, the magistrate Judge recommended denying the motion to dismiss for failure to state a claim. However, she recommended dismissal solely because Lee had filed a second identical action. The district court adopted the report and recommendation and dismissed the case.
A. DISMISSAL OF COUNTY DEFENDANTS
We review de novo the district court's dismissal of a complaint. Whittington v. Whittington, 733 F.2d 620, 621 (9th Cir. 1984) (dismissal for lack of subject matter jurisdiction).
The magistrate Judge recommended dismissing the action without prejudice because Lee had filed an identical second action. Lee had "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 v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977). However, despite the fact that Lee's actions were identical, dismissal of Lee's first action was not the proper course. Rather, "when the district court became aware that the two actions begun [by Lee] were virtually identical, it could have dismissed [his] second complaint without prejudice or it could have stayed proceedings in the second action until judgment was entered in the first." Id.
Another course of action available to the district court would have been to consolidate the two actions, see Home Ins. Co. v. Coastal Lumber Co., 575 F. Supp. 1081, 1083 (N.D. Ga. 1983), but the court denied Lee's motion to consolidate. If the court declines to consolidate the actions, it should adjudicate the claims in the order in which jurisdiction was obtained, i.e. the action first filed should proceed on the merits while the later filed action is stayed or dismissed. See, e.g., General Reinsurance Corp. v. Ciba-Geigy Corp., 853 F.2d 78, 81 (2d Cir. 1988) (appropriateness of district court's decision to stay proceedings determined, inter alia, by the order in which jurisdiction was obtained by the forums). Of course, a litigant's rights may be severely prejudiced if a different order of dismissal is followed. Here, for example, by the time Lee filed his second complaint the one year statute of limitations for civil rights claims had run as to all parties. The district court erred in dismissing Lee's first action against the County defendants.
B. DISMISSAL OF COAST CLUB AND MORRISON
Civil rights claims advanced under section 1983 are governed by a one-year statute of limitations. Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987). Coast Club was not added as a party until June 4, 1990, nearly a year and a half after Lee's cause of action accrued.
The magistrate Judge properly found that Lee failed to meet Rule 15(c)'s relation-back requirements, and thus his claims against Coast Club were time-barred. See Norton v. International Harvester Co., 627 F.2d 18, 22 (7th Cir. 1980). On the record, no set of facts can cure the defect. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Lee was given an opportunity to file an amended complaint to state other claims, if he could. ...