Judy Chou Chiung-Yu Wang v. Prudential Insurance Co. of America

Case: 10-10731 Document: 00511586473 Page: 1 Date Filed: 08/29/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 29, 2011

No. 10-10731 Lyle W. Cayce
Clerk

JUDY CHOU CHIUNG-YU WANG,

Plaintiff - Appellant
v.

PRUDENTIAL INSURANCE COMPANY OF AMERICA, also known as
Prudential Financial, Inc.; PRUCO LIFE INSURANCE COMPANY; PRUCO
SECURITIES L.L.C.; JULIE MAHANCO; MICHELE TALAFHA; MARY JO
REICH; BONNIE GOSHIN; KATHRYN MARIE EVANS; RICHARD
MICHAEL TRETA; RICHARD HSING SHENG WANG; LINDA WU
JORDAN; MILKIE FERGUSON INVESTMENTS, INC., Compulsory Joinder
of Parties; BROKER DEALER CONCEPTS, INC., Compulsory Joinder of
Parties,

Defendants - Appellees

Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-1309

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Judy Chou Chiung-Yu Wang (“Wang”) appeals the district court’s
dismissal of her claims against her former employer, Prudential Life Insurance

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-10731

Company and affiliated entities (collectively, “Prudential”), and several
Prudential employees. On appeal, Wang argues that the district court erred by:
(1) failing to convert the defendants’ motion to dismiss into a motion for
summary judgment; (2) concluding that her claims are barred by the doctrine of
res judicata; (3) dismissing several Prudential employees for lack of personal
jurisdiction; (4) dismissing all of Wang’s state law claims; and (5) dismissing
Milkie Ferguson Investments, Inc. (“Milkie Ferguson”) and Broker Dealer
Concepts, Inc. (“Broker Dealer Concepts”) from the suit. We AFFIRM.
I. FACTS AND PROCEDURAL HISTORY
Wang, an Asian-American woman over the age of 60, worked for
Prudential as an insurance agent from 1999 until 2004. She was terminated on
October 8, 2004 after a dispute arose over a life insurance policy. In 2005, Wang
filed her first action (“Wang I”) against Prudential and her manager, Richard
Treta (“Treta”), alleging violations of the Age Discrimination in Employment Act
of 1967 (“ADEA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 1981, and the Texas Labor Code. She also alleged state law claims of negligent
supervision, training, and retention and defamation. The district court
dismissed these claims with prejudice in April 2007. See Wang v. Prudential
Fin. Corp., No. 3:05-CV-2091-B, 2007 U.S. Dist. LEXIS 29256 (N.D. Tex. Apr. 20,
2007) (“Wang I”). Wang appealed, and we affirmed. See Wang v. Prudential Fin.
Corp., 267 F. App’x 362 (5th Cir. 2008).
While her appeal was pending before this court, Wang filed a second
lawsuit (“Wang II”) on August 7, 2007 against Prudential. In this lawsuit, Wang
again alleged that Prudential and Treta violated Title VII, the Texas Labor
Code, the ADEA, and 42 U.S.C. § 1981. She also re-raised her negligent hiring,
supervision, and retention claim. She added claims for violations of the Equal
Pay Act and for non-payment of compensation and benefits. The district court
dismissed Wang’s second lawsuit, finding that all claims were barred by res

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judicata, as they were based on the same set of facts that the court considered
in Wang I. See Wang v. Prudential Fin. Corp., No. 3:07-CV-1574-P (N.D. Tex.
Jan. 9, 2008).
On January 13, 2009, Wang filed the instant lawsuit (“Wang III”), this
time against Prudential and various affiliates, Milkie Ferguson, Broker Dealer
Concepts, Treta, and various other Prudential employees.1 Wang alleged claims
against Prudential and its employees for: (1) retaliation under Title VII; (2)
violations of 42 U.S.C. § 1981; (3) disparate impact, disparate treatment, and
retaliation under the ADEA, the Fair Labor Standards Act (“FLSA”), and the
Texas Payday Law; (4) violations of the Lilly Ledbetter Fair Pay Act of 2009; and
(5) state law claims for slander, defamation, negligent hiring, supervision, and
retention, intentional infliction of emotional distress (“IIED”), and tortious
interference with contract.
In Wang III, Wang’s Title VII, retaliation, and state-law tort claims were
based on Prudential’s November 15, 2007 amendment of Wang’s Uniform
Termination Notice for Securities Industry Registration (“Form U-5”) with the
Financial Industry Regulatory Authority, a federal agency. Wang claimed that
the amended Form U-5 indicated that she had been terminated for fraud and
theft. She alleges that Prudential amended the Form U-5 to retaliate against
her for filing Wang I. This alleged retaliation occurred after Wang filed her
complaint in Wang II. Wang also alleged that Prudential then amended the
Form U-5 again in August 2008 to show that she was not terminated for fraud
or theft.

1
Specifically, Wang named Kathryn Evans, Richard Wang, and Linda Wu Jordan as
defendants. She also named Julie Mohanco, Michele Talafha, Mary Jo Reich, and Bonnie
Goshin (collectively, the “Non-Resident Defendants”). Wang raises no points of error related
to Jordan in her appellate brief, so we find that she has abandoned any issues as to her.

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Also as a result of Prudential’s November 15, 2007 amendment, Wang
alleged that Milkie Ferguson, her employer at the time of the amendment, had
to amend its own Uniform Application for Securities Registration or Transfer
Form (“Form U-4”) to reflect Prudential’s changes and deducted from her pay to
reflect the cost of filing an amended Form U-4. She also claimed that Prudential
tortiously interfered with her employment relationship with Milkie Ferguson.
The district court dismissed claims against the Non-Resident Defendants for
lack of personal jurisdiction, and dismissed claims against Prudential and its
employees as barred by res judicata. The district court granted Milkie
Ferguson’s motion to dismiss because Wang failed to state a claim against Milkie
Ferguson and named the company only out of a mistaken belief that Milkie
Ferguson was a party whose joinder was required. The district court granted
Broker Dealer Concepts’ motion to dismiss for the same reason. Wang timely
appealed.
II. JURISDICTION
The district court had subject matter jurisdiction over Wang’s federal
claims pursuant to 28 U.S.C. § 1331, and it had jurisdiction over Wang’s pendent
state law claims pursuant to 28 U.S.C. § 1367. We have jurisdiction over this
appeal under 28 U.S.C. § 1291.
III. DISCUSSION
Before addressing Wang’s substantive issues, we must address
Prudential’s contention that Wang’s briefing was so inadequate as to waive her
appeal in its entirety. We disagree with Prudential’s position. Wang appears
pro se, and we therefore interpret her “brief liberally to afford all reasonable
inferences which can be drawn from them.” In re Tex. Pig Stands, Inc., 610 F.3d
937, 941 (5th Cir. 2010). We do require, under Federal Rule of Appellate
Procedure 28, “that the appellant’s argument contain the reasons [s]he deserves
the requested relief ‘with citation to the authorities, statutes and parts of the

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record relied on.’” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (citing
Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1990)). With the benefit of liberal
construction, Wang’s brief generally meets the requirements set forth in Federal
Rule of Appellate Procedure 28; therefore, we conclude that Wang did not waive
her appeal in its entirety. However, we do conclude that she failed to adequately
brief the personal jurisdiction issues. Thus, we find that she has waived her
issues regarding the dismissal of the Non-Resident Defendants. Douglas W. ex
rel. Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210–11 n.4 (5th Cir.
1998) (per curiam) (“[F]ailure to provide any legal or factual analysis of an issue
on appeal waives that issue.”). We now turn to the other issues raised in Wang’s
brief.
A. Whether the district court erred in not converting the motion to dismiss
into a motion for summary judgment.
On appeal, Wang argues that the district court erred by considering
Prudential’s affirmative defense on a motion to dismiss, and by considering
matters outside of the pleadings without converting Prudential’s motion to
dismiss into a motion for summary judgment. Wang is correct that “generally
a res judicata contention cannot be brought in a motion to dismiss; it must be
pleaded as an affirmative defense.” Test Masters Educ. Servs. v. Singh, 428 F.3d
559, 570 n.2 (5th Cir. 2005). However, since Wang failed to challenge the
defendants’ “ability to argue res judicata in a motion to dismiss rather than in
their response or a motion for summary judgment[,] . . .we review the district
court’s dismissal of [plaintiff’s] claims under the 12(b)(6) standard.” Id.
Additionally, “[i]n deciding a 12(b)(6) motion to dismiss, a court may
permissibly refer to matters of public record.” Cinel v. Connick, 15 F.3d 1338,
1343 n.6 (5th Cir. 1994). Thus, the district court did not impermissibly consider

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documents outside of the record in deciding the motion to dismiss, as the
documents referred to were public court filings.2
B. Whether Wang’s claims are barred by res judicata.
The doctrine of res judicata prevents a plaintiff from relitigating claims
that were or could have been litigated in a prior lawsuit. Oreck Direct LLC v.
Dyson Inc., 560 F.3d 398, 401 (5th Cir. 2009). To establish that a claim is barred
by res judicata: “(1) the parties must be identical in the two actions; (2) the prior
judgment must have been rendered by a court of competent jurisdiction; (3) there
must be a final judgment on the merits; and (4) the same claim or cause of action
must be involved in both cases.” In re Ark-La-Tex Timber Co., 482 F.3d 319, 330
(5th Cir. 2007). As Wang does not dispute that the second and third elements
are met, we address only the first and fourth elements.
1. Whether the parties are identical in the two actions.
Res judicata does not require strict identity of the parties. A non-party
defendant to a prior suit may qualify as an “identical party” for res judicata
purposes if it is in privity with a named defendant. Gulf Island-IV, Inc. v. Blue
Streak-Gulf Is Ops, 24 F.3d 743, 746 (5th Cir. 1994). We have recognized that
privity exists in three circumstances: “(1) where the non-party is the successor
in interest to a party’s interest in property; (2) where the non-party controlled
the prior litigation; and (3) where the non-party’s interests were adequately
represented by a party to the original suit.” Meza v. Gen. Battery Corp., 908 F.2d
1262, 1266 (5th Cir. 1990).
Here, there is no question that Richard Treta, Prudential Financial
Corporation, and Prudential Insurance Company of America d/b/a Prudential

2
In addition, Wang attached affidavits to her response to Prudential’s motion to
dismiss. Thus, even if the district court did err in failing to convert Prudential’s motion to
dismiss into a motion for summary judgment, the record indicates that Wang was “given a
reasonable opportunity to present all material that is pertinent to the motion,” as required by
Federal Rule of Civil Procedure 12(d). See FED. R. CIV. P. 12(d); see also FED. R. CIV. P. 56(f).

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Insurance Company are “identical parties,” as Wang specifically named them in
prior suits. Therefore, Prudential has established the first element as to these
parties. See In re Ark-La-Tex Timber Co., 482 F.3d at 330.
The related Prudential entities also qualify as “identical parties” for
purposes of res judicata. In her complaint, Wang named the defendants as
“Prudential Insurance Co. of America n/k/a Prudential Financial Inc., and its
subsidiaries, Pruco Life Insurance Company [and] Pruco Securities L.L.C. . . . .”
There can be no doubt that Prudential Insurance Company of America, which
was named in the prior suits, adequately represented the interests of its
subsidiaries – who are alleged to have committed the same wrongdoing – in the
prior suits. See Eubanks v. Fed. Deposit Ins. Corp., 977 F.2d 166, 170 (5th Cir.
1992) (“[W]here the non-party’s interests were adequately represented by a party
to the prior action, we have concluded that there is sufficient identity between
the parties to apply the principles of res judicata and give preclusive effect to the
prior judgment. . . . A non-party. . . is adequately represented where a party in
the prior suit is so closely aligned to her interests as to be her virtual
representative.”). Therefore, we conclude that the first element was also met as
to Prudential’s subsidiaries.
Prudential also claims that its employees are “identical parties” for res
judicata purposes. As discussed above, Richard Trata was a named defendant
in the prior cases so he is obviously “identical,” and we have affirmed the
dismissal of the Non-Resident Defendants on other grounds. We need not
address this question as to the remaining individual defendants – Richard Wang
and Kathryn Evans – as we affirm the dismissal of claims against them on
other grounds discussed below.

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2. Whether the same claim or cause of action was involved in the two
cases.
To determine whether the same claim or cause of action was involved in
the prior lawsuits, we apply the transactional test, under which “the preclusive
effect of a prior judgment extends to all rights the original plaintiff had with
respect to all or any part of the transaction, or series of connected transactions,
out of which the [original] action arose.” In re Paige, 610 F.3d 865, 872 (5th Cir.
2010) (internal quotation marks and citation omitted). “The critical issue is
whether the two actions under consideration are based on the same nucleus of
operative facts.” Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 396 (5th Cir.
2004).
Wang raised her claim that Prudential discriminated against her by
lowering her compensation because of her age, race, and sex in bothWang I and
Wang II. Additionally, Wang raised Equal Pay Act, FLSA, and Texas Pay Act
claims in Wang II. Her compensation claims are clearly based on the same facts
that gave rise to both Wang I and Wang II—specifically, Prudential’s failure to
compensate her according to the law during her employment; therefore, we hold
that the fourth element of the test has been met as to Wang’s compensation
claims. Because all elements of res judicata have been established as to these
claims, we hold that the district court did not err in dismissing them.3

3
Even if Wang’s claims under the Equal Pay Act, FLSA, and the Texas Pay Act were
not barred by res judicata, they are barred by the applicable statutes of limitations. There is
a two-year statute of limitations for FLSA and Equal Pay Act claims generally, but the
limitations period is extended to three years for willful violations. 29 U.S.C. § 255(a); see also
Hill v. J. C. Penney Co., 688 F.2d 370, 374 (5th Cir. 1982). “A cause of action accrues at each
regular payday immediately following the work period during which the services were
rendered for which the wage or overtime compensation is claimed.” Halferty v. Pulse Drug Co.,
821 F.2d 261, 271 (5th Cir. 1987). Here, even assuming the alleged violation was willful,
Wang’s employment—and, as a result, her last pay period—ended on October 8, 2004;
therefore, Wang’s FLSA claim was untimely because it was not filed within three years after
her cause of action accrued. See 29 U.S.C. § 255(a). The Texas Labor Code establishes a 180-
day deadline to file suit after wages become due. TEX. LAB. CODE ANN. § 61.051 (West 2006).
Therefore, Wang’s Texas Pay Act claim is also barred.

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Additionally, to the extent that Wang raises any defamation, retaliation,
negligent hiring, supervision, and retention, IIED, and tortious interference
claims that are based on the facts raised in Wang I or Wang II, we hold that
those claims are barred. Because Wang has already raised these claims in a
prior lawsuit and received a judgment on the merits, the prior judgment’s
preclusive effect “extends to all rights the original plaintiff had with respect to
all or any part of the transaction, or series of connected transactions, out of
which the [original] action arose.” In re Paige, 610 F.3d at 872.
The question of whether Wang’s defamation, retaliation, IIED, and
tortious interference claims based on the amendment of the Form U-5 on
November 17, 2007 are the “same claims” as those raised in Wang I and Wang
II is less clear.4 We may affirm the district court on any basis supported by the
record. United States v. Pack, 612 F.3d 341, 347 (5th Cir.), cert. denied, 131 S.
Ct. 620 (2010). Because we conclude that the district court’s judgment can be
affirmed on other grounds with respect to these issues, we pretermit the res
judicata question as it applies to the causes of action centering on the Form U-5.
Thus, we turn to consideration of these other bases.
C. Whether Wang’s claims regarding the U5 filing were properly dismissed.5
1. Wang’s Retaliation Claims
We affirm the district court’s decision to dismiss Wang’s retaliation claims
because they are time-barred. Pursuant to 42 U.S.C. § 2000e-5(e), a plaintiff

4
Wang also argues in her reply brief that Prudential’s 2008 amendment was somehow
actionable. Wang’s complaint reveals that the 2008 amendment’s effect was ameliorative
rather than harmful; therefore, her complaint does not support her current assertion.
5
On appeal, Wang argues that her breach of contract and breach of fiduciary duty
claims should not have been dismissed; however, Wang did not raise a breach of contract or
a breach of fiduciary duty claim before the district court, so we do not address these
arguments. Additionally, although Wang raised a negligent hiring, supervision, and retention
claim in her complaint, she did not appeal the district court’s dismissal of that claim;
therefore, we do not address it.

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who initially instituted proceedings with a state or local agency must file a
retaliation claim brought under Title VII within 300 days after the alleged
unlawful employment practice occurred. Similarly, claims of retaliation brought
under the ADEA must be filed within 300 days of the alleged unlawful conduct.
29 U.S.C. § 626(d)(1).
The amended Form U-5, which Wang alleges is the retaliatory conduct,
was filed on November 15, 2007. Wang filed her charge of discrimination on
February 25, 2009, which was over 300 days after the alleged unlawful conduct
occurred; therefore, Wang’s retaliation claims under Title VII and the ADEA are
time-barred.6
2. Wang’s Defamation Claim
Similarly, Wang’s defamation claim is barred by Texas’s one-year statute
of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.002 (West 2002). A
defamation cause of action accrues on the date the alleged defamatory matter is
published. Newsom v. Brod, 89 S.W.3d 732, 736 (Tex. App.—Houston [1st Dist.]
2002, no pet.). Here, the amended Form U-5 which contained the allegedly
defamatory material was published on November 15, 2007, and Wang did not file
her lawsuit until July 13, 2009; therefore, her defamation claim is barred.
3. Wang’s Tortious Interference with Contract Claim
We conclude that the district court also did not err in dismissing Wang’s
tortious interference with contract claim. Wang vaguely alleges that by filing
the amended Form U-5, Prudential tortiously interfered with her employment
at Milkie Ferguson. She fails, however, to state any facts supporting the theory
that Prudential willfully and intentionally interfered with her employment at
Milkie Ferguson. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002)

6
Wang’s “continuing violation” theory has no application to this discrete act of alleged
retaliation.

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(listing elements of a tortious interference claim). Therefore, we affirm the
district court’s decision to dismiss Wang’s tortious interference claim.
4. Wang’s IIED Claim
Finally, we conclude that the district court did not err in dismissing
Wang’s IIED claim. The Texas Supreme Court has held that “[w]here the
gravamen of a plaintiff’s complaint is really another tort, intentional infliction
of emotional distress should not be available.” Hoffmann-La Roche, Inc. v.
Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). IIED was intended to be a “‘gap-
filler’ tort, judicially created for the limited purpose of allowing recovery in those
rare instances in which a defendant intentionally inflicts severe emotional
distress in a manner so unusual that the victim has no other recognized theory
of redress.” Id. Here, Wang could and did bring other tort and employment
claims; therefore, there was “no gap to fill” and Wang may not bring an IIED
claim. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) (“Even if
other remedies do not explicitly preempt the tort [of IIED], their availability
leaves no gap to fill.”).
D. Whether Wang’s claims against Richard Wang and Kathryn Evans should
be dismissed.
It is necessary to address Wang’s claims against the remaining individual
defendants: Richard Wang and Kathryn Evans. Wang’s claims against Richard
Wang relate to her compensation claims, as she seeks the return of
compensation she claimed was owed to her that was wrongfully paid to Richard
Wang. As discussed above, Wang’s compensation claims are time-barred;
therefore, we affirm the dismissal of Wang’s claims against Richard Wang.
Construing her complaint liberally, Wang also seems to state a claim for
unlawful discrimination against Richard Wang because she claims that Richard
Wang was treated more favorably than Wang because he was younger. This is
insufficient to state a claim for unlawful discrimination against Richard Wang

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individually, as Wang at no point alleges that Richard Wang discriminated
against her because of her age.
Wang’s claims against Kathryn Evans relate to compensation,
discrimination, and retaliation. Her compensation and retaliation claims are
time-barred. Additionally, Wang’s discrimination claims against Evans under
Title VII, the ADEA, and 42 U.S.C. § 1981, which are all based on incidents that
occurred prior to Wang’s termination in 2004, are also time-barred. 42 U.S.C.
§ 2000e-5(e) (charge related to claim under Title VII must be filed within 300
days of alleged unlawful conduct); 29 U.S.C. § 626(d)(1) (charge related to claim
under the ADEA must be filed within 300 days of alleged unlawful conduct);
Jones v. ALCOA, Inc., 339 F.3d 359, 364 (5th Cir. 2003) (“[W]here a section 1981
claim is brought in Texas, the two-year statute of limitations for personal injury
actions in Texas controls.”). To the extent Wang sought to state a claim against
Evans for defamation, that claim is also time-barred. Finally, Wang failed to
state a claim for tortious interference against any of the defendants; therefore,
to the extent that she alleges that Evans tortiously interfered with her contract,
that claim was also properly dismissed.
E. Whether the district court erred in granting Milkie Ferguson’s and Broker
Dealer Concepts’ motions to dismiss.
Wang argued that the district court improperly dismissed Milkie Ferguson
and Broker Dealer Concepts and improperly severed their claims. Because the
district court never severed claims respecting either of these defendants, we do
not address Wang’s severance argument. We also affirm the district court’s
decision dismissing Milkie Ferguson and Broker Dealer Concepts from the suit.
At no point in her complaint did Wang even attempt to state a claim against
either defendant. She asserted to the district court that “Broker Dealer
Concepts joined as a compulsary [sic] joinder of party of involuntary plaintiff, not
defendant, and is a required party in this suit.” She joined Milkie Ferguson for

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the same reason. However, despite Wang’s contentions that Broker Dealer
Concepts and Milkie Ferguson are involuntary plaintiffs, her complaint appears
to name them as defendants.7
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed
for “failure to state a claim upon which relief can be granted . . . .” FED. R. CIV.
P. 12(b)(6). Here, Wang fails to state a claim against either defendant that
would entitle her to relief and seeks no damages from either defendant;
therefore, dismissal of any alleged “claims” against Milkie Ferguson and Broker
Dealer Concepts was proper.
Wang also contends that Milkie Ferguson and Broker Dealer Concepts
have evidence that she needs to present her claims and that joinder is therefore
required under Federal Rule of Civil Procedure 19. Joinder is required under
Federal Rule of Civil Procedure 19(a) if “in that person’s absence, the court
cannot accord complete relief among existing parties,” or if disposing of the suit
in the person’s absence would “as a practical matter impair or impede the
person’s ability to protect the interest” or “leave an existing party subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent
obligations because of the interest.” FED. R. CIV. P. 19(a). These circumstances
are not present in this case. Moreover, Wang could have obtained the evidence
she needed from either Milkie Ferguson or Broker Dealer Concepts by seeking
non-party discovery from either entity. See, e.g., FED. R. CIV. P. 45. For these
reasons, we conclude that the district court properly dismissed Milkie Ferguson
and Broker Dealer Concepts from this suit.
AFFIRMED.

7
Even if Wang sought to join these parties as involuntary plaintiffs, compulsory joinder
would still not be proper because none of the circumstances set out in Federal Rule of Civil
Procedure 19(a) are present.

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