IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 02-40877
Summary Calendar
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PHILIP H. BISHOP; REBECCA DAVIS; TERRY EDWARDS;
CAROL HERZIG; GUY PATRICK; KIRDES SCHUBERT, JR.;
BETTY SHARPLIN; DERREL A. BAKER; JOHN PERRIN;
Plaintiffs-Appellants,
v.
KERR-MCGEE CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
(4:01-CV-330)
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January 3, 2003
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
All parties to this appeal were before us recently when the
same Plaintiffs-Appellants appealed from the same district court’s
grant of summary judgment in favor of the same Defendant-Appellee.
In that prior suit, the court dismissed these Plaintiffs-
Appellants’ ERISA claims grounded in alleged misdeeds of Kerr-McGee
in connection with its acquisition, via merger, of Oryx Energy
*
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this opinion should not be published and is not precedent except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.
Company. We affirmed the district court in that appeal, No. 01-
40904, and denied rehearing en banc.
In that case, the Plaintiffs-Appellants had attempted to add
to their ERISA claims additional claims under the Workers
Adjustment and Restraining Notification (WARN) Act.1 They did so
in June, 2001, more than seven months after the Docket Control
Order’s deadline for amending pleadings and more than two months
after Kerr-McGee filed its motion for summary judgment. The
district court rejected that attempt as untimely and, on July 18,
2001, granted Kerr-McGee’s motion for summary judgment.
On the very same day, Plaintiffs-Appellants filed this new
suit in the Northern District of Texas, asserting the same WARN Act
claims that they had been tardy in attempting to assert in their
initial ERISA case in the Eastern District. When this became
apparent to the district court for the Northern District, it
transferred the case sua sponte to the Eastern District, which had
heard and disposed of the earlier case. After Kerr-McGee filed a
motion for summary judgment grounded in res judicata and collateral
estoppel, the Plaintiffs-Appellants filed their first motion for
leave to amend their complaint by adding a new plaintiff, which
motion was denied after the Plaintiffs-Appellants voluntarily
dismissed the claims of the additional plaintiff whom they had
sought to add. The Plaintiffs-Appellants then sought leave to
1
29 U.S.C. § 2101, et seq.
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amend their complaint a second time, again seeking to add yet
another individual as a plaintiff, which motion was likewise
denied. Thereafter, the court granted Kerr-McGee’s motion for
summary judgment, dismissing the Plaintiffs-Appellants’ WARN Act
claims as precluded by res judicata and rejecting as improper their
efforts to amend their complaint to add parties. The Plaintiffs-
Appellants timely filed their notice of appeal.
We have carefully reviewed the record in the instant WARN Act
case and the pertinent portions of the record and judgment in the
earlier ERISA case in light of the arguments and citations in the
appellate briefs of counsel. From our review, we are satisfied
that the district court correctly dismissed the WARN Act claims of
Plaintiffs-Appellants as precluded by res judicata: The parties
are identical in both suits; the judgment on the merits in the
first suit is final; the court is competent to adjudicate both
cases; and under our precedent in Agrilectric Power Partners, Ltd.
v. General Electric Co.,20 F.3d 663 (5th Cir. 1994), the same cause
of action is involved in both suits, because the claims in each
arise from precisely the same nucleus of operative facts. But for
their own dilatoriness, the Plaintiffs-Appellants could have —— and
therefore should have —— timely asserted their WARN Act claims in
their initial lawsuit. We are also satisfied that the court did
not abuse its discretion in denying the Plaintiffs-Appellants’
efforts to amend their complaint; neither do we perceive any
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reversible error in the district court’s disposition of class
certification that the Plaintiffs-Appellants had sought.
For essentially the same reasons set forth in the report and
recommendation of the United States Magistrate Judge and in the
district court’s opinion that adopted it, all rulings of the
district court, including its final judgment dismissing the instant
case with prejudice, are, in all respects,
AFFIRMED.
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