IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20449

MBOHO MKPARAWA IBIBIO USA, INCORPORATED, Individually; 

MAURICE E. EKWO, Individually; MAURICE E. EKWO, as High 

Commissioner and Agent of Mboho Mkparawa Ibibio/Mboho Mkparawa Ibibio 

USA, Incorporated; GODWIN EKPENE, (Deceased), Individually; GODWIN 

EKPENE, as Director, Co-Incorporator and Deputy High Commissioner of 

Mboho Mkparawa Ibibio/Mboho Mkparawa Ibibio USA, Incorporated; MBOHO 

MKPARAWA IBIBIO; ESSIEN ISONG, Individually; ESSIEN ISONG, as 

Director of MBOHO Mkparawa Ibibio USA, Incorporated, 

 Plaintiffs - Appellants

v.

SYLVANUS OKON; JOSEPH D. IBOKETTE; DR. MACARTIN MAC 

UKPONG; EFFIONG EYO MBABA; EMMANUEL ISONG; IBOK ESEMA, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CV-2363

Before JOLLY and JONES, Circuit Judges, and GODBEY, District Judge.∗

PER CURIAM: **

∗ District Judge of the Northern District of Texas, sitting by designation.

**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

October 10, 2014

Lyle W. Cayce

Clerk

 

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No. 13-20449

The Court has considered this appeal from the district court’s sua sponte

dismissal of this case, and related rulings, in light of the briefs and pertinent 

portions of the record. The parties are familiar with the claims in dispute, 

which arise from changes in the control of Mboho, USA, an entity related to 

Mboho Nigeria. The district court dismissed Appellants’ case on the basis of 

res judicata and Appellants’ lack of standing to sue. We reverse and remand.

The court’s res judicata rationale is incorrect because the Texas state 

court suit was dismissed for lack of jurisdiction. In Texas, however, a 

“dismissal for lack of subject matter jurisdiction does not preclude a party from 

litigating the merits of the same cause of action in a court of competent 

jurisdiction[.]” Butler v. Cont’l Airlines, Inc., 116 S.W.3d 286, 287 

(Tex. App. 2003). Federal courts “must give to a state-court judgment the same 

preclusive effect as would be given that judgment under the law of the state in 

which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of 

Educ., 465 U.S. 75, 81, 104 S. Ct. 892, 896 (1984). Consequently, the later 

federal suit was not barred by the state court’s jurisdictional dismissal order.

The court’s lack of standing and lack of authority rulings do not account 

for the evidence in the record. Mboho Nigeria, a foreign entity, is not foreclosed 

from suing defendants in the United States in federal court simply because it 

is not registered to do business here. Further, Appellant Ekwo is listed in 

Mboho Nigeria’s corporate profile as Secretary of Mboho, USA, ROA.3006, was 

appointed as Mboho, Nigeria’s High Commissioner to USA/Canada, ROA.3440, 

and received a letter authorizing him to institute legal action on behalf of 

Mboho, Nigeria, ROA.3619. Appellees have not challenged any of these facts, 

nor have they challenged that Appellants Ekwo and Isong (Appellant Ekpene 

is apparently deceased) have authority to represent Mboho USA. The district 

court thus erred in rejecting Appellants’ standing and authority to sue.

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The district court did not abuse its discretion, however, in denying 

Appellants’ abusively excessive, repetitious, and burdensome discovery 

requests.

It is not clear whether the district court also found dismissal appropriate 

based on its statement that Appellants’ marks and logos were not registered 

with the U.S. Patent and Trademark Office. Lack of registration does not, 

however, necessarily bar such claims, where a work was first published in a 

country, like Nigeria, that adheres to the Berne Convention. See

15 U.S.C. § 1126 (2012); Pepe (U.K.) Ltd. v. Ocean View Factory Outlet Corp., 

770 F. Supp. 754, 761 (D.P.R. 1991). Moreover, the district court failed to 

provide Appellants with any opportunity to respond before voicing this 

concern. Carroll v. Fort James Corp., 470 F.3d 1171, 1177 

(5th Cir. 2006)(“district courts should not dismiss claims sua sponte without 

prior notice and opportunity to respond”). 

Finally, because we must reverse and remand, there is no ground for 

issuing sanctions against Appellants for a frivolous appeal, and Appellees’ 

motion is DENIED.

The judgment of the district court is REVERSED and REMANDED for 

further proceedings consistent herewith.

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