IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20833

Summary Calendar

THOMAS CHAVERS; SANDRA PORTZER; BRAZOS VALLEY CARRIAGE

COMPANY, L.P.; BRAZOS VALLEY ROADRUNNERS, L.P.; ALL

AMERICAN ROADRUNNERS, L.P., 

Plaintiffs-Appellants

v.

RANDALL HALL; KALINEC TOWING COMPANY; KALINEC LEASING

COMPANY; MYRNA SUE KALINEC; JEFF TAYLOR; ERIC BUSKE;

JEFFREY CAPPS; PAUL JACOB KENDZIOR,

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:10-CV-3922 

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

A group of tow-truck companies and their owners have twice filed suit

against several public officials and the owners and operators of competing

companies. Over the course of both suits, the identities of the individual

United States Court of Appeals

Fifth Circuit

F I L E D

September 17, 2012

Lyle W. Cayce

Clerk

 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.

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defendants have changed, but the plaintiffs’ claims have remained substantially

the same. In the current case, the district court dismissed each of the plaintiffs’

federal claims with prejudice due to res judicata. It then declined to exercise

jurisdiction over the remaining state-law claim. The plaintiffs allege each

decision was erroneous. We AFFIRM. 

FACTS

When the Texas cities of Bryan and College Station need to have motor

vehicles moved without the owners’ consent,they rely on local towing companies. 

The cities maintain a list of these companies and rotate selections off the list. 

Individual plaintiffs Thomas Chavers and Sandra Portzer own the plaintiff

businesses. They allege that some defendants routinely disregarded the rotation

list and deprived the plaintiffs of business and violated their civil rights. The

other defendants are towing companies allegedly benefitting from these actions.

The complaint alleges that Bryan’s chief of police sent a letter to Chavers

in October 2008, notifying him of the suspension about his towing company

because of complaints that Chavers’ employees committed crimes when towing

vehicles. Chavers met with the police chief and complained that employees of

other companies had similar complaints made against them. Not receiving any

relief, Chavers filed suit in the United States District Court for the Southern

District of Texas. The thrust of the complaint was that other companies

provided gratuities to city officials and law enforcement officers and that a

conspiracy among these other companies and officials led to Chavers’ company

no longer receiving any business.

After some preliminary rulings adverse to their position, the plaintiffs filed

this substantially duplicative action against the same defendants in the same

district court. The original case also proceeded. The defendants moved to

dismiss the new suit, arguing that all the claims were the subject of the original

proceeding and therefore were barred from relitigation by res judicata. In

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response, the plaintiffs amended their complaint to substitute some new

defendants. The amended complaint also contained an additional allegation of

harassment that occurred after the time for filing amended pleadings in the

original proceeding had expired. The plaintiffs claimed that Paul Jacob

Kendzior, a private citizen who had an encounter with Chavers over towing his

vehicle, falsely alleged that Chavers had assaulted him. Other than this one

allegation, the second complaint is indistinguishable from the operative

complaint in the original proceeding. 

While this second case proceeded, the district court entered judgment in

the defendants’ favor in the first suit. On appeal, among plaintiffs’ arguments

was that leave should have been granted to file a fourth amended complaint. We

affirmed. Chavers v. Morrow, 449 F. App’x 411 (5th Cir. 2011). 

The defendants in the second case filed a motion to dismiss for failure to

state a claim, arguing that the plaintiffs’ claims could not overcome the

preclusive effect of the decisions in the first case. The plaintiffs countered that

res judicata was inapplicable because there were some new defendants and an

additional claim had been made. The district court held that most of the claims

were barred by res judicata. The only claim that was not dismissed with

prejudice was a state-law claim of malicious prosecution. The district court

declined to exercise supplemental jurisdiction over it. The plaintiffs appeal. 

DISCUSSION

We review de novo a district court’s decision to dismiss a claim due to the

bar imposed by res judicata. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir.

2011). The district court’s decision “not to retain supplemental jurisdiction but

instead to remand, is reviewable on appeal for an abuse of discretion.” Regan v.

Starcraft Marine, LLC, 524 F.3d 627, 631 (5th Cir. 2008). “We may affirm the

district court’s judgment on any basis supported by the record.” United States

v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005).

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The plaintiffs begin their current arguments by disputing the district

court’s analysis in the first suit. Another panel of this court affirmed that

decision. Chavers, 449 F. App’x at 411. We do not re-examine those issues.

The plaintiffs also contend that res judicata does not prevent them from

bringing their current claims. “Res judicata generally bars re-litigation of claims

that actually were or should have been made earlier.” Turner, 663 F.3d at 775. 

The doctrine generally applies if “(1) the parties are identical or in privity; (2)

the judgment in the prior action was rendered by a court of competent

jurisdiction; (3) the prior action was concluded by a final judgment on the merits;

and (4) the same claim or cause of action was involved in both actions.” Test

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

The plaintiffs contend that res judicata does not apply because their

current claims are different from those brought in their first suit. To evaluate

whether the two suits are sufficiently similar, we apply what is called the

“transactional test,” which provides that “a prior judgment’s preclusive effect

extends to all rights of the plaintiff with respect to all or any part of the

transaction, or series of connected transactions, out of which the original action

arose.” Id. A “cause of action” is a group of operative facts out of which different

theories of liability could be asserted; “it is black-letter law that res judicata, by

contrast to narrower doctrines of issue preclusion, 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, 701 F.2d 556, 560 (5th Cir.

1983) (citation omitted).

We agree with the district court that all of the claims in this complaint

flow from acts that were mentioned in the previous complaint and are claims

that at least could have been raised before. There is a claim that was not made

in the first suit, and we will discuss whether it should have been. The new claim

is one for malicious prosecution. Plaintiffs allege that College Station police, at

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Kendzior’s request, filed assault charges against Chavers based on a supposed

confrontation between the two in early September 2009. The plaintiffs’ amended

complaint claimed “the charge was filed as part of the City of College Station’s

ongoing policy of retaliating against the Plaintiffs for filing” the first suit.

Chavers made two claims based on this alleged event. One was a statelaw malicious-prosecution claim against Kendzior, which the district court

dismissed after determining it was the only remaining claim. Chavers also

alleged that the malicious prosecution for assault was part of the continuing

retaliation for his exercise of his First Amendment right. This new event

occurred after most of the different amended complaints had been filed in the

first lawsuit, but it occurred before dismissal of the first suit. The motion for

leave to file a final amended complaint (the fourth) in the first suit was filed on

March 31, 2010. That amendment did not include a claim based on the

September 2009 Kendzior event but instead claimed tortious interference with

business relations. The district court refused to allow its filing on April 21, 2010. 

Final judgment was entered on November 24, 2010.

When a district court denies leave to amend due to the lateness of the

request, “[a]ny error should be corrected by appeal in the first proceeding.” 18

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 4412

(2d ed.). On appeal, this court found no error. Chavers, 449 F. App’x at 411. The

plaintiffs did not try to amend their complaint to add the Kendzior allegations

in the first lawsuit, even though they sought to add the other new claim. An

amendment that included a plausibly alleged claim of a conspiracy based on the

Kendzior event might have been accepted, or this court on appeal might have

reversed. Neither the district judge nor this court was ever presented this claim

in the first lawsuit.

We conclude the new Section 1983 claim against other defendants, that

they were engaging in a conspiracy to retaliate against plaintiffs for the exercise

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of their First Amendment rights, are among the claims that either were or could

have been made in the initial litigation. This claim also is barred by res

judicata.

Next, the plaintiffs challenge the district court’s decisions regarding the

malicious-prosecution claim against Kendzior. We start with their assertion

that the district court abused its discretion by declining to exercise supplemental

jurisdiction over that claim. State-law claims generally are for state courts. If

a plaintiff asserts federal claims as well as state claims, the federal court may

exercise jurisdiction over the entire case. 28 U.S.C. § 1367. If a district court

subsequently dismisses the federal claims, its decision whether to exercise

jurisdiction over the remaining state claims “is purely discretionary.” Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). We have already

determined that each of the federal claims was properly dismissed. “[W]hen all

federal claims are dismissed or otherwise eliminated from a case prior to trial,

we have stated that our ‘general rule’ is to decline to exercise jurisdiction over

the pendent state law claims.” McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th

Cir.1998) (citation omitted), overruled in part on other grounds by Arana v.

Ochsner Health Plan, 338 F.3d 433, 440 (5th Cir. 2003) (en banc). Here, the

plaintiffs have not put forth sufficient reasons to show that the district court

abused its discretion by following our general rule. 

The defendants also disagree with the district court’s refusal to enter a

default judgment against Kendzior. “We review the denial of a default judgment

for abuse of discretion.” Settlement Funding, LLC v. TransAmerica Occidental

Life Ins. Co., 555 F.3d 422, 424 (5th Cir. 2009) (quotation marks and citation

omitted). 

“Default judgments are a drastic remedy, not favored by the Federal Rules

and resorted to by courts only in extreme situations.” Sun Bank v. Pelican

Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir.1989). For this reason, “any

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doubts usually will be resolved in favor of the defaulting party.” 10A Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2681 (3d ed.). 

Moreover, even if the plaintiffs had shown that Kendzior had defaulted, that

showing would not necessarily be sufficient: “A party is not entitled to a default

judgment as a matter of right, even where the defendant is technically in

default.” Settlement Funding, 555 F.3d at 424 (quotation marks and citation

omitted).

The plaintiffs primarily complain that the district court should have

applied the plausibility standard applicable to pleadings when considering their

claim that Kendzior defaulted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

They contend they alleged sufficient facts to establish a default. Plaintiffs are

applying the wrong standard. When courts are presented with a motion for

entry of default judgment, benefit of the doubt is given to the non-moving party. 

See 10A Wright & Miller § 2681. A party is not entitled to a default judgment

simply because it has stated facts which make it plausible that a defendant may

have defaulted. The district court may have resolved doubts about the default

in Kendzior’s favor, but that is not error.

The plaintiffs also challenge the procedures followed by the district court

clerk regarding an entry of default. It is acknowledged that the clerk is not

required to enter a default when presented with insufficient factual support. 

The plaintiffs contend nevertheless that if the clerk was not satisfied with the

information presented, he should have requested more. It is the plaintiffs’

responsibility to ensure they meet their evidentiary burden, not the clerk’s.

AFFIRMED.

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