1 District Judge of the Western District of Louisiana,

sitting by designation. United States Court of Appeals

Fifth Circuit



## FILED

June 25, 2003

Charles R. Fulbruge III

Clerk REVISED JUNE 27, 2003

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-40564

FRANK BROOKS,

Plaintiff - Appellant,

VERSUS

RAYMOND DUGAT COMPANY L C

Defendant - Appellee.

Appeal from the United States District Court

For the Southern District of Texas, Corpus Christi

Before DeMOSS and STEWART, Circuit Judges, and LITTLE, 1 District

Judge.

DeMOSS, Circuit Judge.

On May 1, 2001, Appellant Frank Brooks (“Brooks”) brought suit

against Appellee Raymond Dugat Company L C, (“Dugat”), claiming a

cause of action for maintenance and cure under the General Maritime

Law for a slip and fall he suffered on the M/V Amanda on Ju ne 2,2

1998. Brooks had filed a similar suit, including a claim for

maintenance and cure, against Dugat in May of 2000 but voluntarily

moved to dismiss all of his claims with prejudice. The operative

facts and ma intenance and cure causes of action are the same in

both suits.

On January 15, 2002, Dugat filed a Motion for Summary Judgment

in the instant suit. Dugat claimed that Brooks’s instant suit was

barred by claim and issue preclusion or alternatively that Dugat

was not the employer of Brooks when he was injured. Brooks opposed

the motion contending that claim and issue preclusion were

inapplicable and that Dugat was his employer when he was injured.

On March 4, 2002, the United States District Court for the

Southern District of Texas granted Dugat’s Motion for Summary

Judgment and found that Brooks’s claim was ba rred by claim

preclusion. The court did not address issue preclusion or whether

Dugat was Brooks’s employer at the time of the injury. Brooks now

appeals the granting of summary judgment.

We review a district court’s grant of summary judgment de

novo

. Y oung v. Equifax Credit Info. Servs. Inc.

, 294 F.3d 631, 635

(5th Cir. 2002). Summary judgment is appropriate only “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.3

56(c).

For claim preclusion to apply, the following four requirements

must be met: (1) the parties must be identical in both suits; (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 cause of action must be involved in both suits. U .S.

v. Shanbaum , 10 F.3d 305, 310 (5th Cir. 1994) (citation omitted).

If these four requirements are met, a party cannot raise a claim in

a later pro ceeding that was, or could have been, raised in the

prior proceeding. Id

.

All the requirements are met in the instant suit. The first

and second requirements a re not disputed – the parties are

identical and the court that rendered t he prior judgment, which

coincidentally was the same district court that decided the instant

summary judgment motion, was a court of competent jurisdiction.

The third requirement, that there be a final judgment on the

merits in the prior proceeding, is also met. A dismissal with

prejudice is a final judgment on the merits. S chwarz v. Folloder

,

767 F.2d 125, 129-130 (5th Cir. 1985).

The fourth requirement, that the same cause o f action is

involved in both suits, is also met. To determine whether the two

suits involve the same cause of action, this Court applies the

transactional test and asks whether the two suits involve the same

nucleus of operative facts. Agrilectric Power Partners, Ltd., v.4

General Elec. Co.

, 20 F.3d 663, 665 (5th Cir. 1994). Both the

instant suit and prior suit involve the exact same facts.

Even though these four requirements are met, the present

appeal focuses on the application o f claim preclusion to a

maintenance and cure claim. The fact that a maintenance and cure

claim is involved, however, does not affect the instant suit.

The right to maintenance and cure is ongoing and serial suits

may be brought to collect maintenance and cure payments as they

come due. P elotto v. L & N Towing Co.

, 604 F.2d 396, 398 (5th Cir.

1979). A seaman cannot be denied the right to sue for maintenance

and cure before such a claim has accrued. C ooper v. Diamond M Co.

,

799 F.2d 176, 179 (5th Cir. 1986). Nonetheless, claim preclusion

still app lies to admiralty proceedings, including claims for

maintenance and cure. Pelotto , 604 F.2d at 401.

In Pelotto v. L & N To wing Co. , the plaintiff brought an

a dmiralty action but did not initially include a claim for

maintenance and cure. I d

. at 398. The plaintiff later asserted a

claim for maintenance and cure, but that issue was never addressed

because the defendants agreed to pay maintenance and cure claims

incurred by the plaintiff for a certain period of time. I d

. at

399. The plaintiff did pursue his other claims against the

defendants and ultimately prevailed. I d

. When the defendants

stopped mak ing maintenance and cure payments, the plaintiff then

brought a maintenance and cu re claim. I d

. The district court5

granted summary judgment against the plaintiff on the grounds of

res judicata or claim preclusion. I d

. at 400. This Court reversed

the district court and held that the plaintiff’s failure to claim

maintenance and cure in his initial suit did not bar the

plaintiff’s later action for maintenance and cure. I d

. at 402.

This Court explained that even if the plaintiff brought his

maintenance and cure claim in the initial suit, there would still

be no bar to bringing the maintenance and cure claim in the later

suit because, and contrary to the instant suit, no determination

had ever been entered that the defendants were not required to pay

maintenance and cure in the first instance. Id . at 401-02. This

Court, however, also stated that if the plaintiff had claimed

maintenance and cure in his initial su it and an “identifiable

finding” had been made fixing the maximum cure, res judicata or

claim preclusion would bar th e plaintiff’s subsequent claim that

was outside of the fixed maximum cure. Id . at 402 n.12.

We agree with the district court’s determination in this suit

that the logical conclusion drawn from Fifth Circuit precedent is

that, if a finding has been m ade that the plaintiff is not due

maintenance and cure, then claim preclusion would bar all

subsequent claims for maintenance and cure. Brooks’s dismissal

with prejudice was tantamont to a judicial determinati on of his

non-entitlement to maintenance and cure arising out of his slip and

fall on June 2, 1998. S ee Schwarz

, 767 F.2d at 129-30. Thus,6 G:\opin\02-40564.opn.wpd because a plaintiff must be entitled to maintenance and cure before

any recovery can be obtained, the district court correctly

d ismissed Brooks’s second maintenance and cure suit. To hold

otherwise, would result in claim preclusion never applying to

maintenance and cure claims. Therefore, before any recovery for

maintenance and cure can be had, a plaintiff must be entitled to it

and in order to be entitled to maintenance and cure a plaintiff

cannot have previously asserted a maintenance and cure claim that

was dismissed with prejudice. Accordingly, we affirm the district

court’s granting of summary judgment for the reasons articulated by

the district court.

AFFIRM