### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 the i r o w n ers have twice filed suit ag a inst several public officials and the owners and operators of competing companies. Over the course of both suits, t h e identities of the individual U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 7, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20833 Document: 00511989735 Page: 1 Date Filed: 09/17/2012No. 11-20833

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 jurisd i c t i o n over the remaining state-law claim. The plaintiffs allege each decision was erroneous. We AFFIRM. FACTS Whe n t h e T e x as cities of Bryan and College Station need to have motor vehicles moved without the owners’ conse nt , th ey r ely o n local towing companies. The cities maintain a list of these com p a n i e s and rotate selections off the list. I n divi du al plaintiffs Thomas Chavers and Sandra Portzer own the plaintiff businesses. They allege that some defendants routinely disre gar d e d th e rot ation list and d e p r iv e d 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, not i f yi ng him of the suspension about his towing company because of complaints that Chavers’ employees committed crimes when towing vehicles. Chavers met with the p o l i c e c hief 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 th e S o u thern District of Texas. The thrust of t h e c o m p l aint was that other companies provided gratuities to city officials a n d law enforcement officers and that a conspiracy among these other companies and officials led to Chavers’ company no longer receiving any business. Afte r s o m e p reli min ary rulin g s a dver s e to their position, the plaintiffs filed this substantially duplicative action aga i n s t th e same defendants in the same district court

. T he 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 w e r e b a rred from relitigation by res judicata. In

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response, the plaintiffs amended their complaint t o substitute some new defendants. The amended complaint also contained an additional allegation of harassment that occurred after the time for filing amended plea di n g s in the original proceeding had expired. Th e 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. Ot h e r t h a n this one allegation, the second complaint is indi s t i n guishable 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’ cla i m s 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 barr ed by res judicata. The only claim that was not dismissed with prejudice was a state-law claim of m a l i c i ous 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. Ple as a n t , 6 6 3 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. 200 8). “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. 2 005).

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T h e plaintiffs begin their current arguments by disputing the dist r i c t court’s analysis in the first suit. An o t h er 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 b rin gin g th eir 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. T h e d o c t r ine generally applies if “(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of c o m p e t e n t jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cau s e of action was involved in both actions.” Test Masters Educ. Servs., Inc. v. Singh , 428 F.3d 559, 571 (5th Cir. 200 5). The plaint i ffs 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 a r e sufficiently similar, we apply what is called the “transaction a l t e st,” which provides that “a prior judgment’s preclusive effect

e xt e n d s t o a ll rights of the plaintiff with respect to all or any part of th e 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 dis t r i c t court that all of the claims in this complaint flow from acts that were mentioned in the previous compla i n t 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 betw e e n th e 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. C h av e r s made two claims based on this alleged event. One was a statel a w malicious-prosecution claim against Kendzior, which the district cour t dismissed after determining it was the only r e m a i n i ng claim. Chavers also alleged that the malicious prosecution for assault was part of t h e c o ntinuing retaliation for his exercise of his First Amendment right. Th i s n e w event occurred after most of the different amended complaints had been f i l e d in the first lawsuit, but it occurred before dismissal of the first su i t

. 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 incl u d e a c laim 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 distr i c t c o urt 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

. Wr i ght & 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 i n t h e 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 Ken d z i o r e v e nt 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 conclud e t h e n ew 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 t h e i n i t i a l litigation. This claim also is barred by res judicata. Next, the plaintiffs challenge t h e district court’s decisions regarding the malicious-prosecution claim against Kendzior. W e start with their assertion that the district court abused its discretion by declinin g to exercise supplemental jurisdiction over that claim. State-law claims generally are for state courts. If

a plain tiff asserts federal claims as well as state claims, the federal court may exercise jurisdiction over the entire case. 28 U.S. C

. § 1 3 67. If a district court subsequently dismisses the federal claims, its decision whether to exercise jurisdiction over the remaining state claims “is purely discretionary.” Carlsbad T e c h

. , I nc. 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 o m i t t e d), overruled in part on other grounds by Arana v. Ochsner Health Plan , 338 F.3d 433, 440 (5th Cir. 2003) (en ban c)

. H e r e , the plaintiffs have n o t p u t f orth sufficient reasons to show that the district court abused its discretion by following our general rule. The defendants also di s a gr ee 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. , 5 5 5 F

. 3 d 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. P e l i c a n 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 part y . ” 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2681 (3d ed.). Moreover, even if the plaintiffs had show n 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 i s technically in default.” Set t le ment Funding , 555 F.3d at 424 (quotation marks and citation omitted). The plaintiffs primarily complain that the district court sh o u l d h ave 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 standar d

. Wh e n 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

re q u i r e d to enter a default when presented with insufficient factual support. T h e plaintiffs contend nevertheless that if the clerk was not satisfied with the information presented, he should have requested more. It is the plaintiff s’ responsibility to ensure they meet their evidentiary burden, not the clerk’s. AFFIRMED.

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