IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30037

Summary Calendar

NARISSA DAWN BRADFORD,

Plaintiff - Appellant

v.

LAW FIRM OF GAUTHIER, HOUGHTALING & WILLIAMS, L.L.P.;

JAMES M. WILLIAMS, Esquire,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CV-3692

Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Narissa Dawn Bradford (“Bradford”), proceeding 

pro se, appeals the district court’s dismissal of her complaint for failure to state 

a claim upon which relief can be granted under Federal Rule of Civil Procedure 

12(b)(6). The district court held that the claims in the instant lawsuit were 

barred by the doctrine of res judicata because these claims arose “out of all or 

 

* 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

June 22, 2017

Lyle W. Cayce

Clerk

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part of the transaction at issue” in a previous lawsuit between the instant 

parties. Finding no reversible error, we AFFIRM.

I. BACKGROUND AND PROCEDURAL HISTORY

In 2012, Bradford retained Defendants-Appellees Gauthier, Houghtaling 

& Williams, L.L.P., Earl Perry, and James Williams (collectively “GHW”) to 

represent her with respect to a lawsuit in Italy against her former companion. 

Bradford was ultimately unsuccessful in that lawsuit. 

Subsequent to the Italian lawsuit but prior to the underlying lawsuit, 

Bradford filed pro se a malpractice lawsuit against GHW in federal district 

court. In the complaint, Bradford alleged that GHW had violated Louisiana’s 

Rules of Professional Conduct and breached the contract with her. The 

complaint sought $30,000,000 in damages. After GHW filed an answer to the 

complaint, Bradford filed a motion for leave to file an amended complaint. 

Bradford’s motion provided that the proposed amended “complaint maintains 

the counts and allegations against the same defendants from the original 

complaint, but accounts for the significant factual and procedural 

developments that have occurred since the original complaint was filed.” The 

district court granted Bradford’s motion for leave to file the amended 

complaint.

GHW answered the amended complaint, and Bradford moved for leave 

to file a second amended complaint. In the second amended complaint, 

Bradford alleged that the documents that GHW produced during discovery 

demonstrated “(1) fraudulent acts (2) perjury (3) concealing of documents 

(4) scrambling of documents and (5) non-fulfillment on behalf of the GHW 

Defendants.” Accordingly, Bradford sought leave to amend her complaint to 

include these five claims. The district court opined that “[t]hese allegations 

center around the documents that the GHW Defendants produced in response 

to Bradford’s discovery requests, and do not fundamentally alter the nature of 

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the action already filed against Defendants.” The court found that these 

additional claims were not separate from the claims set forth in her original 

and amended complaints. Instead, the court ruled that these “claims” simply 

clarified factual allegations with respect to her malpractice claim that GHW

failed to produce all relevant documents. Viewed in that light, the court found 

the proposed second amended complaint “to be more akin to a more definite 

statement of how [GHW] may have breached their fiduciary duties or acted 

grossly negligent, versus entirely new claims of relief.” The court granted the 

motion to amend in part and denied it in part. 

More specifically, the court denied the motion for leave to file the second 

amended complaint with respect to fraud, finding that Bradford had failed to 

plead with specificity or particularity which of the allegations properly 

constituted fraud. The court also denied leave to amend the complaint with 

respect to perjury because Bradford had not set forth factual allegations 

specifying how GHW committed perjury. The court granted the motion to 

amend with respect to “concealing of documents, non-fulfillment on behalf of 

GHW Defendants, refusal to file an important opposition document [and] 

scrambling documents.”

GHW filed a motion for summary judgment, and the district court 

granted summary judgment. Subsequently, Bradford filed a Rule 60(b) 

motion, alleging newly discovered evidence and fraud. The district court 

denied the motion.

Bradford appealed only the denial of her Rule 60(b) motion. On appeal, 

we held that the district court had not abused its discretion in denying the 

motion. Bradford v. The Law Firm of Gauthier, Houghtaling & Williams, 

L.L.P. et al, 633 F. App’x 276 (5th Cir. 2016). We stated that Bradford failed 

to show that she had exercised due diligence in light of the fact that the “‘newly 

discovered evidence’ consists of documents and emails that were in the 

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possession of Marco Chiari, Bradford’s Italian counsel (and GHW’s former cocounsel) in the Italian civil suit.” Id. at 277. Moreover, we pointed out that 

“the majority of the ‘newly discovered evidence’ involved emails sent and 

received by Chiari that were not in GHW’s possession, custody, or control.” Id.

at n.4. 

Two months later on April 22, 2016, Bradford, proceeding pro se, once 

again filed suit in district court against GHW.1 Her complaint alleged fraud, 

perjury, concealing evidence and violation of the pretrial notice with respect to 

the prior lawsuit between the instant parties. Bradford sought $30,035,000 in 

damages. 

Bradford filed a motion to recuse the district judge. Bradford asserted 

that Judge Milazzo “has personal knowledge of the facts pertaining to 

Bradford’s [prior] Civil Action No. 13-2407.” The district court denied the 

recusal motion, stating that Bradford’s assertion was not a basis for recusal 

pursuant to 28 U.S.C. § 455. 

Subsequently, on August 16, GHW filed a motion to dismiss for failure 

to state a claim, arguing that Bradford’s claims were barred by the doctrine of 

res judicata. Bradford filed a motion in opposition, arguing that the cause of 

action in the prior litigation was legal malpractice, which differs from the fraud 

and perjury claims alleged in the instant lawsuit. On January 10, 2017, the 

district court granted the motion to dismiss, ruling that res judicata barred the 

claims because the claims brought in the second suit were or could have been 

advanced in support of the first suit. Bradford thereafter filed a notice of 

appeal.

 

1 Unlike the first suit, this complaint did not name Earl Perry as a defendant. 

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II. STANDARD OF REVIEW FOR RULE 12(b)(6)

We review de novo a district court’s grant or denial of a Rule 12(b)(6) 

motion, “accepting all well-pleaded facts as true and viewing those facts in the 

light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th 

Cir. 2007). However, we do not hold pro se complaints to the same standards 

as formal pleadings filed by attorneys. Calhoun v. Hargrove, 312 F.3d 730, 734 

(5th Cir. 2002). 

III. ANALYSIS

A. Raising Res Judicata in a Rule 12(b) motion

Bradford contends that GHW should not have argued res judicata as a 

basis for dismissal in a Rule 12(b) motion to dismiss. Instead, Bradford 

contends that GHW should have pleaded it as an affirmative defense.

Bradford is correct that the affirmative defense of res judicata is not 

expressly listed as a defense that may be asserted in a motion pursuant to Rule 

12(b). See Rule 12(b). Instead, res judicata is listed as an affirmative defense

in Federal Rule of Civil Procedure Rule 8(c). This Court has opined that 

according to Rule 8(c), a defendant should plead res judicata in the answer to 

the complaint. Lafreniere Park Found. v. Broussard, 221 F.3d 804, 808 (5th 

Cir. 2000).2 Nonetheless, we explained that a technical failure to strictly 

comply with Rule 8(c) does not forfeit the affirmative defense of res judicata 

when it is raised before the district court “in a manner that does not result in 

unfair surprise.” Id. (internal quotation marks and citation omitted). Here,

instead of filing an answer to the complaint, GHW filed the instant Rule 

12(b)(6) motion to dismiss on August 16, 2016. Bradford filed a memorandum 

 

2 But see Larter & Sons v. Dinkler Hotels Co., 199 F.2d 854, 855 (5th Cir. 1952) (“With respect 

to a specific affirmative defense such as res judicata, the rule seems to be that if the facts are 

admitted or are not controverted or are conclusively established so that nothing further can 

be developed by a trial of the issue, the matter may be disposed of upon a motion to 

dismiss[.]”).

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in opposition to the motion to dismiss on August 29. Her memorandum

contained much of the same arguments opposing the application of the doctrine 

of res judicata that are contained in her appellate brief. GHW filed a reply to 

Bradford’s opposition on September 6. On September 29, Bradford filed a 

motion for leave to file the declarations of her attorneys in Italy, and the 

district court granted the motion. On January 10, 2017, the district court 

granted GHW’s motion to dismiss. Under these circumstances, because the 

affirmative defense was raised “at a pragmatically sufficient time, and 

[Bradford] was not prejudiced in [her] ability to respond,” the defense of res 

judicata was not forfeited for any failure to strictly comply with Rule 8(c). Id.

(internal quotation marks and citation omitted). 

B. Elements of Res Judicata

Bradford contends that the district court erred in ruling that the instant 

lawsuit was barred by the doctrine of res judicata. “The res judicata effect of 

a prior judgment is a question of law that this court reviews de novo.” Test 

Masters Educ. Servs. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). 

“When a federal court sitting in diversity is considering the collateral 

estoppel effect of a prior federal judgment, this Circuit applies federal common 

law.” Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 583 F.3d 348, 353 (5th Cir.

2009) (internal quotation marks and citation omitted). The four elements of 

res judicata are: (1) identical parties; (2) the judgment in the prior suit was 

rendered by a court of competent jurisdiction; (3) there was a final judgment 

on the merits in the prior suit; and (4) the same claim or cause of action was 

involved in both suits. Test Masters, 428 F.3d at 571. 

Here, Bradford’s brief only challenges the fourth element. This Court 

uses a “transactional test to determine whether two claims involve the same 

cause of action, under which the critical question is not the relief requested or 

the theory asserted but whether the plaintiff bases the two actions on the same 

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nucleus of operative facts.” N.Y. Life Ins. Co. v. Gillispie, 203 F.3d 384, 387 

(5th Cir. 2000) (internal quotation marks and citation omitted). Bradford has 

argued that res judicata is not applicable because the cause of action in the 

prior litigation was legal malpractice, which differs from the fraud and perjury 

claims alleged in the instant lawsuit. However, as set forth above, the question 

is not whether the same theory is asserted in the two actions. Instead, we must 

determine whether Bradford bases the two actions on the same nucleus of 

operative facts. 

In the prior federal lawsuit, Bradford filed a motion for leave to file a 

second amended complaint, raising allegations of, among other things, fraud, 

perjury, and concealing documents. The district court found that these 

allegations were not separate from the claims in her original and amended 

complaints. The court ruled that these allegations simply clarified the factual 

allegations with respect to her malpractice claim. Thus, the court viewed the 

proposed second amended complaint to be a more definite statement of how 

GHW committed malpractice as opposed to new claims for relief. We agree

with the district court’s conclusion that those “allegations center around the 

documents that the GHW Defendants produced in response to Bradford’s 

discovery requests, and do not fundamentally alter the nature of the action 

already filed against [GHW].” 

The allegations contained in the proposed second amended complaint in 

the prior suit are essentially the same as the allegations raised in the 

complaint in the underlying lawsuit. Thus, we are convinced that Bradford 

based the two lawsuits on the same nucleus of operative facts. Bradford has 

not shown that the district court erred in holding that the four elements of the 

res judicata test were satisfied.

Nonetheless, throughout her brief, Bradford complains that the evidence 

attached to her Rule 60(b) motion was never adjudicated on the merits. E.g.,

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Blue brief at p.7. It appears that Bradford is arguing that her claims of fraud 

and perjury were not fully litigated because the district court denied her leave 

to amend the complaint by adding those claims. However, this Court has 

previously affirmed the district court’s denial of her Rule 60(b) motion, and 

Bradford did not appeal the underlying judgment. Moreover, “it is black-letter 

law that res judicata . . . bars all claims that were or could have been advanced 

in support of the cause of action on the occasion of its former adjudication.”

Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 560 (5th Cir. 1983) (emphasis 

in original). Because the claims all rise out of the same nucleus of operative 

facts, any claims that Bradford alleges were not “fully litigated” could have 

been properly raised in the first cause of action. Accordingly, the district court 

did not err in ruling that the instant claims were barred by res judicata.

IV. CONCLUSION

For the above reasons, the district court’s judgment is AFFIRMED.

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