IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11413

Summary Calendar

JAY SANDON COOPER,

Plaintiff-Appellant

v.

BANK OF NEW YORK MELLON, Trustee; OCWEN LOAN SERVICING, 

L.L.C.; JOHN M. LYNCH; J. GARTH FENNEGAN; KRISTINA A. KIIK; 

MICHAEL R. STEINMARK; SETTLE & POU PROFESSIONAL 

CORPORATION; DAVID GARVIN; JACK BECKMAN; KELLY GODDARD; 

GENE ALYEA; DON GWIN; DAVID O’DENS; ROBERT POU; CLIFF A. 

WADE; MICHAEL P. MENTON; JARED T. S. PACE, Substitute Trustees,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:14-CV-2795

Before DAVIS, JONES, and OWEN, Circuit Judges.

PER CURIAM:*

Jay Sandon Cooper moves to proceed in forma pauperis (IFP) on appeal. 

He seeks to challenge the district court’s dismissal of his civil action as barred 

by res judicata. The district court denied his motion for leave to proceed IFP 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 28, 2018

Lyle W. Cayce

Clerk

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on appeal and certified that the appeal was not taken in good faith. By moving 

for IFP status, Cooper is challenging the district court’s certification. See 

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

This court reviews de novo a dismissal for failure to state a claim under 

Rule 12(b)(6). See Legate v. Livingston, 822 F.3d 207, 209-10 (5th Cir.), cert. 

denied sub nom. Legate v. Collier, 137 S. Ct. 489 (2016). A complaint fails to 

state a claim upon which relief may be granted when it does not contain 

“sufficient factual matter, accepted as true, to state a claim to relief that is 

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 

quotation marks and citation omitted).

On appeal, Cooper contends that the defendants waived the affirmative 

defense of res judicata by not raising it in their first motion to dismiss. 

Although a defendant should generally raise res judicata in an answer, the 

defense will not be deemed to have been waived as long as it was asserted “at 

a pragmatically sufficient time,” and the opposing party was not prejudiced in 

its ability to respond. United States v. Shanbaum, 10 F.3d 305, 312 (5th 

Cir.1994). Because the defendants raised the defense in their motion to 

dismiss after being directed to argue the issue by the magistrate judge, and 

Cooper was not prejudiced in his ability to respond, they did not waive the res 

judicata defense. See id.; see also Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 

572, 578 (5th Cir. 2009); Lafreniere Park Foundation v. Broussard, 221 F.3d 

804, 808 (5th Cir. 2000).

Cooper next contends that the district court did not consider the claims 

he raised in his amended complaint that were not barred by res judicata. 

Contrary to Cooper’s argument, the record reflects that the district court 

considered Cooper’s amended complaint and compared it to the claims raised 

in his 2009 and 2013 lawsuits.

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Next, Cooper argues that the district court improperly shifted the burden 

to him by ordering him to produce the records in the prior cases. The district 

court did not shift the burden of proof to Cooper by directing both parties to 

present the records of the prior lawsuits. Because both parties referred to the 

related cases, the district court had the authority to raise the issue sua sponte 

in the interest of judicial economy where the previous action was brought 

before a court in the same district. See Mowbray v. Cameron County, Tex., 274 

F.3d 269, 281 (5th Cir. 2001) (citing Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.

1980)); Nagle v. Lee, 807 F.2d 435, 438 (5th Cir. 1987). The defendants 

established that in his 2009 and 2013 lawsuits, Cooper raised numerous 

claims, challenging the pending foreclosure of his property by the same Lender 

defendants. Courts of competent jurisdiction dismissed both of these lawsuits 

with prejudice. Further, all of the defendants in the instant cases were in 

privity with the defendants in the prior lawsuits. All of Cooper’s claims in the 

prior lawsuits and in the instant lawsuit arose out of his failure to meet his 

loan obligations and his desire to prevent the Lender defendants from 

foreclosing on the same property. Therefore, the defendants established that 

Cooper’s current claims were barred by res judicata. See Amstadt v. U.S. Brass 

Corp., 919 S.W.2d 644, 652 (Tex. 1996); Samuel v. Fed. Home Loan Mortg. 

Corp., 434 S.W.3d 230, 234 (5th Cir. 2014).

According to Cooper, the district court improperly dismissed his 

complaint with prejudice without a trial on the merits. Contrary to Cooper’s 

argument, the district court’s dismissal of his complaint for failure to state a 

claim under Rule 12(b)(6) constitutes a judgment on the merits. See Federated 

Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981); see also Plaut v. 

Spendthrift Farm, 514 U.S. 211, 228 (1995). The district court did not err in 

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dismissing Cooper’s complaint with prejudice for failure to state a claim under 

Rule 12(b)(6). See Iqbal, 556 U.S. at 678; Legate, 822 F.3d at 209-10.

Next, Cooper argues that the district court violated Cooper’s due process 

rights by dismissing the case based on res judicata. Cooper’s statute of 

limitations claim could have been raised in his 2009 lawsuit, which was still 

pending in June 2010, when the limitations period allegedly expired, as well 

as in his 2013 lawsuit. Because Cooper could have raised the limitations claim 

in his prior lawsuits, he has not shown that his due process rights were violated 

because the district court dismissed this claim as barred by res judicata. See 

Amstadt, 919 S.W.2d at 652; see also Samuel, 434 S.W.3d at 234.

Finally, Cooper contends that the district court erred in not applying 

state law concerning the doctrine of res judicata. Because he did not raise this 

argument in his objections to the magistrate judge’s report in the district court, 

review is limited to plain error. See Puckett v. United States, 556 U.S. 129, 135

(2009). Although Cooper is correct that the district court erred in not applying

state law on res judicata, he has not shown that this error affected his 

substantial rights because federal and Texas law on res judicata are the same. 

See Amstadt, 919 S.W.2d at 652; Test Masters Educ. Servs., Inc. v. Singh, 428 

F.3d 559, 571 (5th Cir. 2005); Flippin v. Wilson State Bank, 780 S.W.2d 457, 

459 (Tex. App. 1989). Because Cooper has not argued or shown that under 

Texas law, the doctrine of res judicata would have been inapplicable to the 

instant case, he has not shown that the district court’s failure to apply Texas 

law affected his substantial rights. See Puckett, 556 U.S. at 135.

Cooper’s appeal is not taken in good faith because it lacks arguable merit 

and is frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). 

Accordingly, Cooper’s IFP motion is DENIED and his appeal is DISMISSED 

as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

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Cooper has had several prior actions or appeals dismissed as frivolous or 

for failure to state a claim. See Cooper v. Dallas Police Ass’n, No. 13-11281 (5th 

Cir. Nov. 14, 2014) (appeal dismissed as frivolous); Cooper v. Bank of New York, 

No. 3:13-CV-1985 (N.D. Tex. Jan. 31, 2014) (dismissal for failure to state a 

claim); Cooper v. City of Plano, No. 4:10-CV-00689 (E.D. Tex. Sept. 13, 2011) 

(dismissal for failure to state a claim); Cooper v. Household Financial Services, 

No. 4:01-CV-00260 (E.D. Tex. April 1, 2002) (dismissal for failure to state a 

claim). Cooper is ADVISED that future frivolous actions or appeals could 

result in the imposition of sanctions.

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