UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-20350
Summary Calendar
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ASHOK K. CHAUHAN; AMITA CHAUHAN;
ATUL CHAUHAN; ARUN CHAUHAN,
Plaintiffs-Appellants,
versus
FORMOSA PLASTICS CORPORATION, USA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-3988)
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April 4, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
At issue in this pro se appeal by the four Chauhans is the
dismissal of their complaint on the basis of res judicata. An
action is barred by that doctrine if (1) the parties are identical
in both actions; (2) the prior judgment was rendered by a court of
competent jurisdiction; (3) that judgment was final on the merits;
and (4) the cases involve the same cause of action. E.g.,
Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., 37 F.3d
193, 195 (5th Cir. 1994). “Cause of action” is defined to include
all claims that were, or could have been, brought in a prior action
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
based on the same transaction. See Nilsen v. City of Moss Point,
Miss., 701 F.2d 556, 559-60 (5th Cir. 1983)(en banc).
This is the third action arising out of a debt owed by
Appellant Ashok Chauhan’s company, Kunstoplast of America, Inc.
(KOA), to Formosa Plastics Corporation, USA. Formosa sued in Texas
state court in 1995, resulting in a default judgment against KOA
for breach of contract (failure to pay for delivered goods). Ashok
Chauhan is a resident of India. He and KOA moved for a new trial;
one was granted Chauhan. His counterclaims against Formosa
included claims arising out of its collection efforts. The state
court held that Ashok Chauhan personally guaranteed KOA’s debt and
was, therefore, liable to Formosa for approximately $20 million.
The judgment was upheld on appeal.
The four Chauhans (Ashok Chauhan and his son, wife, and
brother) filed suit in federal court in 1996 against Formosa,
asserting that its attempts to collect the state-court judgment in
India resulted in defamation, abuse of process, and intentional
infliction of emotional distress. Ashok Chauhan’s claims were
dismissed based on res judicata; the claims of the other three
Chauhans were dismissed for failure to state a claim and by summary
judgment.
The current action arises from Ashok Chauhan’s assertions that
Formosa made fraudulent misrepresentations in the state-court
proceedings and the Chauhans’ claim of tortious conduct arising
from Formosa’s attempts to collect the state-court judgment in the
United Kingdom.
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The Chauhans maintain that the factual bases for the three
lawsuits differ. See Barr v. RTC, 837 S.W.2d 627, 630-31 (Tex.
1992)(Texas analysis of res judicata); Hogue v. Royse City, Tex.,
939 F.2d 1249, 1252-53 (5th Cir. 1991)(Texas standard to be used to
analyze res judicata). They contend also that factual
misstatements by the magistrate judge, adopted by the district
court, must negate the res judicata decision.
These claims are frivolous. The three actions arise from the
same cause of action – the failure of KOA and Ashok Chauhan to pay
a debt owed Formosa, its attempts to collect that debt, and the
Chauhans’ complaints arising from those attempts.
The Chauhans claim that, because the magistrate judge denied
Formosa’s request to take judicial notice of documents related to
the state-court proceeding and the first federal action, he could
not later take judicial notice of those proceedings and the
district court could not adopt his recommendation. This contention
is also frivolous. A court may take judicial notice at any time,
including sua sponte. FED. R. EVID. 201(c), (e). Both proceedings
were matters of public record, which may be considered in resolving
a motion to dismiss. Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th
Cir. 1995).
The Chauhans assert that the magistrate judge improperly made
recommendations without conducting an oral hearing as required by
28 U.S.C. § 636(b)(1). This assertion is also frivolous; § 636(b)
does not mandate a hearing.
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Because the Chauhans have raised no arguably meritorious
issues on appeal, this appeal is frivolous and is DISMISSED. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R.
42.2.
Formosa has moved for sanctions under FED. R. APP. P. 38. That
Rule permits our awarding double costs and other just damages to
an appellee if an appeal is frivolous. Sanctions are not lightly
imposed, and this court is particularly cautious when, as here, the
non-movant is pro se. Clark v. Green, 814 F.2d 221, 223 (5th Cir.
1987). On the other hand, pro se litigants are not granted
“unrestrained license to pursue totally frivolous appeals”. Id.
Sanctions are in order. But, given the extremely large debt
owed Formosa, monetary sanctions will not be imposed. Instead, the
Chauhans are barred from filing any pro se pleading or appeal here
or in any court subject to our jurisdiction arising from the
efforts of Formosa to satisfy the judgment in Formosa Plastics
Corp., USA v. Kunstoplast of America, Inc., No. 95-08981 (Tex.,
127th Jud. Dist. Ct., 30 Nov. 1995), without advance written
permission of a judge of the forum court.
APPEAL DISMISSED; SANCTIONS IMPOSED
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