1 United States Court of Appeals,

Fifth Circuit.

No. 93-5455

Summary Calendar.

AGRILECTRIC POWER PARTNERS, LTD. and Agrilectric Power, Inc.,

Plaintiffs-Appellants,

v.

GENERAL ELECTRIC CO., Defendant-Appellee.

May 17, 1994.

Appeal from the United States District Cour t For the Western

District of Louisiana.

Before POLITZ, Chief Judge, JONES and EMILIO M. GARZA, Circuit

Judges.

POLITZ, Chief Judge:

Agrilectric Power Partners, Ltd. and Agrilectric Power, Inc.

(Agrilectric) appeal an adverse summary judgment dismissing their

action against General Electric Com pany (G.E.) for r es judicata.

We affirm.

Background

In 1984 Agrilectric pur chased a steam turbine from G.E. for

use in its Lake Charles, Louisiana facility. G.E. installed the

turbine pursuant to a sales contract and maintained it pursuant to

several service contracts. In 1990 the turbine failed, causing

serious damage to Agrilectric's equipment. Agrilectric filed its

first suit against G.E. shortly thereafter alleging design and

installation defects as well as failure to warn. The district

court granted G.E.'s motion for summary judgment urging liberative

prescription and dismissed Agrilectric's compla int. In a motion1 Agrilectric Power v. General Electric, 986 F.2d 1419 (5th

Cir.1993).

2 Wilkerson v. Columbus Separate School Dist., 985 F.2d 815

(5th Cir.1993).

2 for reconsideration Agrilectric advanced the service contracts as

an alternate source of liability. The district court rejected the

contention as untimely and we affirmed. 1

Agrilectric filed the instant complaint two weeks later, this

time alleging breach of the service contracts. Agrilectric alleges

that G.E.'s failure to perform the contracts in a workmanlike

manner caused the turbine to crash. G.E. moved for summary

judgment on this complaint, citing res judicata. Determining that

Agrilectric's second action arose from the same transaction as the

first, the district court granted G.E.'s motion and dismissed the

complaint. A motion for reconsideration was denied; Agrilectric

timely appealed.

Analysis

We review the district court's grant of summary judgment de

novo. 2 Agrilectric maintains that separate contracts formed the

basis for its separate actions and thus res judicata does not

apply. It alternatively contends that its service contract theory

of liability, barred from the first suit on its motion for

reconsideration, may not now be rejected from the present action on

g rounds of res judicata. Neither contention is persuasive.

Federal law determines the preclusive effect of a prior federal3 Meza v. General Battery Corp., 908 F.2d 1262 (5th

Cir.1990).

4 Nilsen v. City of Moss Point, 701 F.2d 556 (5th Cir.1983)

( en banc ); Matter of Baudoin, 981 F.2d 736 (5th Cir.1993).

5 Baudoin; Eubanks v. F.D.I.C., 977 F.2d 166 (5th Cir.1992);

Matter of Howe, 913 F.2d 1138 (5th Cir.1990).

6 Matter of Howe, 913 F.2d at 1144; see also Baudoin;

Eubanks.

7 Nilsen; see also Foret v. Southern Farm Bureau Life Ins.

Co., 918 F.2d 534 (5th Cir.1991); Matter of Howe; Slaughter v.

AT & T Information Systems, Inc., 905 F.2d 92 (5th Cir.1990);

Langston v. Insurance Company of North America, 827 F.2d 1044

(5th Cir.1987).

3 judgment; 3 that law provides that r es judi cata shall bar a

subsequent action when a prio r action involving the same parties

and the same cause of action reached final judgment on the merits

in a court of competent jurisdiction. 4 Agrilectric concedes that

elements one, three, and four are met; it contests only the

requirement that both suits involve the same cause of action.

We have adopted a transactional test for determining whether

two complaints involve the same cause of action. 5 "Under this

approach, the critical issue is not the relief requested or the

theory asserted but whether the plaintiff bases the two actions on

the same nucleus of operative facts." 6 If the factual scenario of

the two actions parallel, the same cause of action involved in

both. The substantive theories advanced, forms of relief

requested, types of rights asserted, and va riations in evidence

needed do not inform this inquiry. 7

Agrilectric based each of its actions on the failure of the

steam turbine. That the theories underlying these actions were8 Nilsen, 701 F.2d at 559; Langston, 827 F.2d at 1048.

9 Nilsen.

4 based on different contracts does not transform the theories into

separate causes of action. In each suit, Agrilectric (1)

complained of the same accident, (2) all eged the same product

deficiency, and (3) claimed the same damages. Each suit involved

the same nucleus of operative facts and t hus the same cause of

action.

Agrilectric's argument that it was precluded from raising the

service contract theory in its first motion for reconsideration in

the first action likewise affords no relief. This is not a

situation in which le gal or procedural hurdles prevented

Agrilectric from timely asserting its theory; rather, Agrilectric

could have introduced the theory earlier but, for whatever reason,

opt ed not to do so. "[O]ne who has a choice of more than one

remedy for a given wrong

... may not asser t them serially, in

successive actions, but must advance all at once on pain of bar." 8

This rule applies equally to situations in which a claimant fails

to raise an alternate theory in a timely fashion. 9 The district

court properly granted G.E.'s motion for summary judgment and its

judgment is AFFIRMED.