United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 18, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
_____________________
No. 05-51113
____________________
KENNETH LEE,
Plaintiff-Appellant,
v.
CITY OF SAN ANTONIO, et al.,
Defendants-Appellees.
__________________
On Appeal from the United States District Court for the Western
District of Texas, San Antonio
5:04-CV-1184
__________________
Before DAVIS, BARKSDALE, and DEMOSS, Circuit Judges.
PER CURIAM:1
Appellant Kenneth Lee (“Lee”) appeals the dismissal of his
discrimination claims against the City of San Antonio (the
“City”) on res judicata grounds. Because we find no error in the
district court’s judgment, and for the reasons stated below, we
affirm.
1
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this opinion should not be published and is not precedent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.
1
Lee filed his initial complaint (“Lee I”) against the City
in federal district court, asserting violations of Title VII as
well as sections 1981, 1983, and 1985 under an equal protection
theory. Lee asserted that the City and certain individuals
discriminated against him on the basis of race by failing to
properly classify and pay him as a superintendent and later as an
on-site manager of the Environmental Service Department’s Waste
Transfer Station.
In the course of discovery, the City disclosed a site
operating plan for the Waste Transfer Station indicating that the
City was required to have a waste disposal superintendent manage
the facility. After discovering the site plan, and while his
initial suit remained pending in federal court, Lee initiated a
second suit (“Lee II”) in Texas state court against an identical
set of defendants and based on identical facts. In this second
suit, Lee asserted, inter alia, equal protection claims brought
under section 1983, state constitutional claims based on equal
protection and due process, and quantum meruit claims. Lee did
not seek to amend his complaint in Lee I to include any of the
claims asserted in Lee II. The City removed the second suit to
federal court, answered Lee’s allegations, and asserted several
defenses, including res judicata.
2
The district court eventually granted summary judgment to
both the individual defendants and the City in Lee I. Lee
appealed the summary judgment as to his claims against the City,
and a panel of this court affirmed that judgment. See Dotson v.
City of San Antonio, No. 05-50652, 2006 WL 1097845 (5th Cir.
April 25, 2006)(unpublished). Based on the summary judgment in
Lee I, the City and other defendants filed a motion for summary
judgment in Lee II based on res judicata. The district court
granted that motion, and this appeal followed.
We review the grant of summary judgment de novo, applying
the same standard of a district court. Pratt v. City of Houston,
247 F.3d 601, 605-06 (5th Cir. 2001). “Summary judgment is proper
when the evidence, viewed in the light most favorable to the non-
movant, reflects no genuine issues of material fact.” Id. at 606
(internal quotation omitted). Consistent with Federal Rule of
Civil Procedure 56(c), to prevail on a motion for summary
judgment the movant must be entitled to judgment as a matter of
law. In particular, the res judicata effect of a prior judgment
is a question of law that we review de novo. Davis v. Dallas Area
Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004).
Res judicata “insures the finality of judgments” and
precludes parties from relitigating issues that either were or
3
could have been raised in that action. Proctor & Gamble Co. v.
Amway Corp., 376 F.3d 496, 499 (5th Cir. 2004). Res judicata
applies where (1) the parties to the respective actions are
identical; (2) the prior judgment was rendered by a court of
competent jurisdiction; (3) the prior action resulted in a final
judgment on the merits; and (4) the same cause of action is
involved in both cases. See Russell v. SunAmerica Securities,
Inc., 962 F.2d 1169, 1172 (5th Cir. 1992).
Lee argues first that the district court erred in granting
summary judgment based on res judicata because there was no final
judgment on the merits as to the equal protection claims asserted
in Lee I. Lee argues that the district court’s dismissal of his
equal protection claim against the City, based on his failure to
plead an official policy, practice, or custom, was not an
adjudication on the merits. Lee is incorrect. “[A] judgment of
dismissal for failure to state a claim is a judgment on the
merits, with preclusive effect.” May v. Transworld Drilling Co.,
786 F.2d 1261, 1263 (5th Cir. 1986).2
2
Lee also argues that the underlying dismissal for failure to
allege a policy, practice, or custom was itself erroneous,
essentially rearguing the appellate issue urged in Lee I.
However, we affirmed the dismissal on this point in Lee I,
Dotson, 2006 WL 1097845, *2, and Lee’s argument therefore is
itself barred by res judicata.
4
Lee argues second that the district court erred in granting
summary judgment based on res judicata because he could not have
asserted the claims in Lee II as part of his suit in Lee I. In
Lee I, Lee asserted claims of Title VII employment discrimination
and equal protection violations. In Lee II, he asserted claims of
equal protection, access to courts, and due process violations
pursuant to section 1983, along with similar state law claims.
Lee concedes that the claims asserted in Lee I and Lee II
arise out of the same transaction and nucleus of operative facts,
but argues that he was not fully aware of the factual predicate
for the claims asserted in Lee II until the discovery of the site
operating plan, apparently after the deadline to request leave to
amend his complaint in Lee I. Lee argues that as a result of the
belated discovery of documents after the deadline for amendments,
the adjudication of the Lee I claims should not preclude the
assertion of the claims in Lee II.
“[I]t is black-letter law that res judicata ... bars all
claims that were or could have been advanced in support of the
cause of action on the occasion of its former adjudication.”
Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 560 (5th Cir.
1983)(en banc)(emphasis in original). This general principle
applies specifically to claims first asserted under Title VII and
5
in a subsequent suit under section 1983. See id. at 559 n.3
(“[W]hen § 1983 is used as a parallel remedy with Title VII in a
discrimination suit, the elements of the substantive cause of
action are the same under both statutes.”); see also Harrington
v. Vandalia-Butler Bd. of Educ., 649 F.2d 434, 437 (6th Cir.
1981)(“It is undisputed that appellant’s earlier Title VII action
and the present § 1983 suit are based on the same discriminatory
acts. When two successive suits seek recovery for the same
injury, ‘a judgment on the merits operates as a bar to the later
suit, even though a different legal theory of recovery is
advanced in the second suit.’”).
Lee’s belated discovery of documents that support and
strengthen his claims does not provide a basis for avoiding the
res judicata effect of the judgment in Lee I. Lee discovered
these documents before the entry of judgment in Lee I, and
despite the fact that the district court had extended several
other scheduling order deadlines at Lee’s request, Lee failed to
make any request to amend his complaint to include his new legal
theories based on the same set of operative facts. In light of
such failure, we will not grant Lee an exception from res
judicata. Cf. Nilsen, 701 F.2d at 563 (affirming application of
6
res judicata to later section 1983 suit where plaintiff filed
untimely motion to amend in prior Title VII suit).3
Because we agree that the claims asserted in Lee II are
barred by the res judicata effect of the judgment in Lee I, we
AFFIRM the judgment of the district court.
AFFIRM.
3
Indeed, had Lee requested, the district court may well have
been obligated to allow such an amendment. We have previously
recognized that under certain circumstances it may be an abuse
of discretion for a trial court to deny a plaintiff's motion
to amend when the denial of that motion could unduly prejudice
the plaintiff's action as a result of res judicata
implications. See Underwriters at Interest on Cover Note
JHB92M10582079 v. Nautronix, Ltd., 79 F.3d 480, 485 (5th Cir.
1996); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 600 n.
3 (5th Cir.1981) (noting that where res judicata might bar a
subsequent action by the plaintiff, the denial of a motion to
amend in order to add that cause results in undue prejudice).
Because Lee never requested such an amendment, we need not
address the issue.
7