## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 8 1997 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BEN NWOSUN, Plaintiff-Appellant,

v. GENERAL MILLS RESTAURANTS, INC., Defendant-Appellee, No. 96-6309

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-96-2026-M)

Ben Nwosun, Pro Se. Thomas L. Henderson and Thomas H. Lawrence, of McKn ight Hudson Lewis Ford & Harrison LLP, Memphis, Tennessee, for Defend ant/Appellee.

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

SEYMOUR , Chief Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Ben Nwosun appeals from the summary judgment grante d in favor of General Mills Restaurants, Inc., holding Mr. Nwosun ’s claim barred by res judicata. We affirm. 1 On June 16, 1995, Mr. Nwosun filed a retaliatory di scharge claim in Oklahoma state court (Nwosun I ) against General Mills. Four days later he filed a race discrimination claim under Title VII in federa l district court (Nwosun II ) based on his discharge. General Mills applied for a stay in Nwosun I until Nwosun II was resolved. Summary judgment was entered for Ge neral Mills in Nwosun II due to Mr. Nwosun’s failure to file a charge of di scrimination with the EEOC within the statutorily required time limit, 42 U.S.C. § 2000-5(e)(1). He appealed that decision and this Court affirmed on that basis. Nwosun v. General Mills Restaurants, Inc. , No. 95-6375, 1996 WL 195298 (10th Cir. Apr. 19, 1 996). On December 14, 1995, Mr. Nwosun amended his state court complaint in Nwosun I to include the Title VII allegation. General Mill s then removed the suit to federal district court, which held the Title VII suit barred by res judicata on the basis of Nwosun II . The court also held the state law claim barred s ince it could have been raised as supplemental along with the Tit le VII claim in Nwosun II . It is from this holding that Mr. Nwosun appeals.-3-

Res judicata is an affirmative defense on which the defendant has the burden to set forth facts sufficient to satisfy the elements. See Fed. R. Civ. P. 8(c); United States v. Athlone Indus., Inc. , 746 F.2d 977, 983 (3rd Cir. 1984); Owens v. Sun Oil Co. , 482 F.2d 564, 567 (10th Cir. 1973). Where the fa cts are not in dispute, we determine de novo whether the district court correctly applied the substantive law of res judicata. See May v. Parker-Abbott Transfer & Storage, Inc. , 899 F.2d 1007, 1009 (10th Cir. 1990). Res judicata requires the satisfaction of four elem ents: (1) the prior suit must have ended with a judgment on the merits; (2) the parties must be identical or in privity; (3) the suit must be based on the same cause of action; and (4) the plaintiff must have had a full and fair opportunityto litigate the claim in the prior suit. See Murdock v. Ute Indian Tribe of Uintah & Ouray Rese rvation , 975 F.2d 683, 686 (10th Cir. 1992). The basis of the summary judgment in Nwosun II was Nwosun’s failure to timely file a charge of discrimination with the EEO C. This filing requirement constitutes a statute of limitation for all Title V II claims. See Zipes v. Transworld Airlines , 455 U.S. 385, 393 (1982). A judgment for failure to comply with the statute of limitations is a judgment on th e merits, thereby satisfying element one. See Murphy v. Klein Tools, Inc. , 935 F.2d 1127, 1128-29 (10th Cir.2 Oklahoma, from which this case was removed, also adheres to the

transactional approach in a res judicata analysis. See Retherford v. Halliburton Co. , 572 P.2d 966, 968-69 (Okla. 1978). AccordChandler v. Denton , 741 P.2d 855, 862 (Okla. 1987). -4- 1991). Since this suit involves the same parties a s Nwosun II , the second element requiring an identity of parties is satisfied as we ll. The third element requires that the suits be based on the same cause of action. This circuit embraces the transactional ap proach to the definition of “cause of action.” See Petromanagement Corp. v. Acme-Thomas Joint Venture , 835 F.2d 1329, 1335 (10th Cir. 1988) (citing Restatement of Judgments § 24 (1980)). 2Under this approach, a cause of action includes a ll claims or legal theories of recovery that arise from the same trans action, event, or occurrence. All claims arising out of the transaction must ther efore be presented in one suit or be barred from subsequent litigation. See, e.g. , Clark v. Haas Group, Inc. , 953 F.2d 1235, 1238-39 (10th Cir. 1992); May , 899 F.2d at 1009; Jarrett v. Gramling , 841 F.2d 354, 357-58 (10th Cir. 1988). Mr. Nwosun’ s discharge from employment is the transaction giving rise to the tw o complaints involved here. It is immaterial that the legal basis for the relief s ought in the two complaints is different; it is the occurrence from which the clai ms arose that is central to the “cause of action” analysis. Since Nwosun I and Nwosun II both arise from plaintiff’s discharge, they are based on the same c ause of action.-5-

Res judicata further requires that the party had a full and fairopportunity to litigate the claim in the prior suit. See Sil-Flo, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1520 (10th Cir. 1990) (citing Kremer v. Chemical Co nstr. Corp. , 456 U.S. 461, 481, n. 22 (1982)). A failure of this type is evid enced by “a deficiency that would undermine the fundamental fairness of the original proceedings.” Petromanagement , 835 F.2d at 1334. The fairness of the process is determined by examining any procedural limitations, the party’s i ncentive to fully litigate the claim, and whether effective litigation was limitedby the nature or relationship of the parties. See Sil-Flo , 917 F.2d at 1521. When a federal claim is disposed of pretrial, any s upplemental state claims are generally dismissed without prejudice. See Ball v. Renner , 54 F.3d 664, 669 (10th Cir. 1995). If Mr. Nwosun had alleged both theories of recovery in Nwosun II , his suit would have been in precisely this postur e since the federal claim was disposed of by summary judgment. His state retaliatory discharge claim would therefore have been ripe for dismissal without prej udice. See Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343, 351 (1988). This is a procedural l imitation that arguably could have affected Nwosun’s ability to li tigate his state claim in Nwosun II

. However, the district court retains the discretion to exercise jurisdiction over the supplemental claim after pretrial adjudication of the federal claim. See-6-

Thatcher Enter. v. Cache County Corp. , 902 F.2d 1472, 1478 (10th Cir. 1990). See also United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 726 (1966); Carnegie-Mellon , 484 U.S. at 350 n.7 (1988). It would be pure spe culation to conclude that the district court would not have exe rcised its jurisdiction over the state claim had it been brought in the federal acti on. One of the main policy considerations underlying re s judicata is the interest in bringing litigation to an end. “By preventing r epetitious litigation, application of res judicata avoids unnecessary expense and vexation for parties, conserves judicial resources, and encourages reliance on judi cial action.” May , 899 F.2d at 1009. If we were to participate in the speculative gymnastics required to determine whether a federal court would or would no t have exercised its supplemental jurisdiction over a state claim never brought, we would be doing disservice to the policy considerations res judicat a protects. See RESTATEMENT S ECOND OF J UDGMENTS , 1981, § 25 comment § e and Reporter’s Note; 18 C. Wright, A. Miller & E. Cooper, F EDERAL P RACTICE & P ROCEDURE § 4412 at 95- 96 (1981). We are persuaded that uncertainty over whether a federal court would have exercised pendant jurisdiction does not justif y a conclusion that a plaintiff was denied a full and fair opportunity to litigate a claim. See, e.g. , Brown v. Federated Dep’t Stores, Inc. , 653 F.2d 1266, 1267 (9th Cir. 1981) (where it is not clear the district court would have declined jurisd iction over the supplemental-7-

state claims, they are barred by res judicata); Lee v. Village of River Forest , 936 F.2d 976, 980 (7th Cir. 1991) (plaintiff must bringall federal and state claims in original federal suit or be barred from subsequent litigation in state court). Cf. Jones v. Holvey , 29 F.3d 828, 832 (3rd Cir. 1994) (res judicata do es not apply where a court having jurisdiction would clearly hav e declined to exercise it) (applying New Jersey law). We have found nothing under the Oklahoma law of res judicata to convince us that Oklahoma would have permitted Mr. Nwosun to proceed with Nwosun I after the same cause of action was dismissed in Nwo sun II had these state law claims remained in state court. Since Mr. Nwosun f ailed to assert his state retaliatory discharge claim under the federal court ’s supplemental jurisdiction in Nwosun II , we conclude the district court correctly held himbarred by the doctrine of res judicata from litigation of that cl aim in Nwosun I

. The judgment of the district court is AFFIRMED

.