* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20169

Summary Calendar

LARRY CARTER

Plaintiff - Appellant

v.

R JAMES NICHOLSON, Secretary of Veterans Affairs; 

DEPARTMENT OF VETERANS AFFAIRS

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas, Houston

USDC No. 4:03-CV-5225

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Larry Carter appeals the district court’s judgment

dismissing his employment discrimination case. For the reasons that follow, we

AFFIRM the judgment of the district court.

United States Court of Appeals

Fifth Circuit

F I L E D

November 8, 2007

Charles R. Fulbruge III

Clerk
No. 07-20169

2

I. FACTUAL AND PROCEDURAL BACKGROUND

Carter was employed by the Department of Veterans Affairs (the

“Department”) at Houston National Cemetery (“HNC”). Carter has twice sued

his employer in federal district court. This appeal concerns Carter’s first lawsuit

(“Carter I”), which was based on two different administrative cases alleging

discrimination that he brought before the Department’s Office of Resolution

Management: case numbers 2003-246 (“246”), and 2003-247 (“247”). Carter’s

second lawsuit (“Carter II”) arose out of three additional discrimination cases

that he brought before the Department: case numbers 2003-0851-200118028

(“8028”), 2001-0851-2002100608 (“608”), and 2003-0851-2003103509 (“3509”).

The two cases underlying Carter I, case numbers 246 and 247, were

consolidated by the Department and eventually resolved adversely to Carter by

the Equal Employment Opportunity Commission, which issued a right-to-sue

letter on August 4, 2003. Carter timely initiated Carter I by filing a pro se

complaint against the Department in the Southern District of Texas on

November 6, 2003. However, Carter failed to effectuate service of process within

120 days, and on June 25, 2004, the district court dismissed Carter I for want of

prosecution.

Although Carter was proceeding pro se in Carter I, he had obtained

counsel in connection with Carter II, which was filed in the Southern District of

Texas on April 2, 2004, based upon a right-to-sue letter received December 29,

2003. Carter apparently did not tell his attorney about Carter I until after it had

been dismissed for want of prosecution, because only then did the attorney make

an appearance in Carter I, by filing a requestfor reconsideration on July 9, 2004.

The district court interpreted this filing as a motion to reinstate the case and

granted it on March 22, 2005. Carter, now acting through counsel in both cases,

then filed a first amended complaint in Carter I on April 20, 2005. The
No. 07-20169

3

Department moved for a more definite statement, which the district court

granted, and Carter filed a second amended complaint on October 17, 2005.

Meanwhile, Carter II had been dismissed on May 11, 2005. The Carter II

district court determined that cases 8028 and 608 were barred by the statute of

limitations, and that case 3509 was barred for failure to exhaust administrative

remedies.

On October 27, 2005, the Department filed its answer to the second

amended complaint in Carter I, and pled res judicata as an affirmative defense.

On May 22, 2006, the Department filed a motion for partial summary judgment

on the issue of what claims Carter could assert at trial. In this motion, the

Department argued that Carter was precluded from relitigating claims that were

part of Carter II, and urged that Carter I be limited to the claims raised in cases

646 and 647.

The district court noted that the Department’s motion for partial summary

judgment did not argue that the entire Carter I lawsuit was foreclosed by

Carter II. However, the court sua sponte considered the preclusive effect of

Carter II on Carter I under the doctrine of res judicata. After comparing the

pleadings in Carter I and II, the court determined that both actions arose out of

the same operative facts, and that the prior judgment in Carter II completely

foreclosed adjudication of Carter I. The court then granted the Department’s

motion for partial summary judgment and entered a final judgment dismissing

the case. Carter filed a motion for reconsideration under Federal Rule of Civil

Procedure 59, which the court denied. Carter timely filed notice of appeal.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, viewing all evidence in

the light most favorable to the nonmoving party and drawing all reasonable

inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234

F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence
No. 07-20169

4

reflects no genuine issues of material fact and the non-movant is entitled to

judgment as a matter of law.” Id. (citing FED. R. CIV.P. 56(c)). “A genuine issue

of material fact exists ‘if the evidence is such that a reasonable jury could return

a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).

III. DISCUSSION

A. Res Judicata

Carter first argues thatthe district court erred in concluding that Carter I

was foreclosed by the judgment in Carter II under the doctrine of res judicata.

Res judicata, also known as claim preclusion, bars the litigation of claims that

either have been litigated or should have been raised in an earlier suit. In re

Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999). 

For a prior judgment to bar an action on the basis of res judicata,

the parties must be identical in both suits, the prior judgment must

have been rendered by a court of competent jurisdiction, there must

have been a final judgment on the merits and the same cause of

action must be involved in both cases. 

Nilsen v. City of Moss Point, 701 F.2d 556, 559 (5th Cir. 1983) (en banc) (citing

Stevenson v. Int’l Paper Co., 516 F.2d 103, 108 (5th Cir. 1975)). It is undisputed

that Carter II involved the same parties as Carter I and was decided by a court

of competent jurisdiction. There is likewise no doubt that the dismissal of a

claim as time-barred is a final judgment on the merits for res judicata purposes.

See id. at 561. The question is whether the same cause of action is involved in

both Carter I and II.

To determine whether two suits involve the same cause of action, this

court has adopted the transactional test of the Restatement (Second) of

Judgments. Petro–Hunt, L.L.C., v. United States, 365 F.3d 385, 396 (5th Cir.

2004). Under the transactional test, a prior judgment’s preclusive effect extends
No. 07-20169

5

to all rights the original plaintiff had “with respect to all or any part of the

transaction, or series of connected transactions, out of which the action [that led

to the prior judgment] arose.” RESTATEMENT (SECOND) OF JUDGMENTS § 24(1)

(1982). “What factual grouping constitutes a ‘transaction’, and what groupings

constitute a ‘series’, are to be determined pragmatically, giving weight to such

considerations as whether the facts are related in time, space, origin, or

motivation, whether they form a convenient trial unit, and whether their

treatment as a unit conforms to the parties’ expectations or business

understandings or usage.” Id. § 24(2). “[T]he critical issue is whether the two

actions under consideration are based on the same nucleus of operative facts.”

Petro–Hunt, 365 F.3d at 396 (quoting Southmark, 163 F.3d at 934) (emphasis in

original).

Carter contends that Carter I is not based on the same nucleus of operative

facts as Carter II. Specifically, he argues that the incidents underlying Carter I

occurred in 1999 in relation to his work as a tool and parts attendant at HNC.

In contrast, he argues that the incidents underlying Carter II occurred in 2001

in relation to his work as a cemetery caretaker at HNC.

The district court, on the other hand, determined that the conduct

complained of in both Carter I and II spanned the same time period and involved

the same allegations that the Department had engaged in harassment, race

discrimination, and reprisal for Carter’s equal employment opportunity activity.

The court labeled the cases “temporally and factually inseparable,” and found

them to be “predicated on the same core of operative facts.”

Our review of the record indicates that the same transaction or series of

transactions formed the basis for both Carter I and II. In fact, the instances of

allegedly discriminatory conduct contained in the second amended complaint in

Carter I are largely identical to those made in the second amended complaint in

Carter II. Both complaints allege that in May 1999 Carter was told that he
No. 07-20169

6

would have to provide documentation for all annual and sick leave he used,

when other employees were not held to such a strict standard. Both allege that

shortly thereafter, he was ordered to leave his tool and parts attendant position

to perform weed eating and trimming in the cemetery. Both allege that in June

1999 he was given a memo stating that the position of tool and parts attendant

was to be abolished, and that he would be assigned to the position of cemetery

caretaker effective August 2, 1999. Both allege that in September 1999 he was

assigned to weeding duties after an equal employment opportunity counselor

had conducted interviews at the cemetery. Both allege that after returning to

work from medical leave in December 1999 he was assigned to cutting grass and

trimming and told that management considered him a “troublemaker.” Both

allege that in January 2000 he was instructed to ride in a golf cart and “wick

weed,” which resulted in an injury to his leg. Finally, both allege that his

supervisor changed the date of his retirement when processing his retirement

papers. 

Simply put, the record does not support Carter’s assertion that Carter I

and II were based on separate incidents occurring in different years. Rather, as

the district court noted, both cases “originate[d] from the same course of

allegedly discriminatory conduct.” Davis v. Dallas Area Rapid Transit, 383 F.3d

309, 314 (5th Cir. 2004). As such, we have no trouble concluding that the fourth

element of the Restatement’s transactional test is satisfied.

Carter argues in the alternative that the district court overstated the

preclusive effect of Carter II. According to Carter, the judgment in Carter II only

precludes him from relitigating the Carter II court’s decision as to the timeliness

of that lawsuit. But “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, 701 F.2d

at 560 (emphasis in original). As the Nilsen court explained, a timebar
No. 07-20169

7

determination “bars not only the stale claim asserted but any others, though

themselves still timely, that are part of the same cause of action.” Id. at 562.

Since the claims in Carter I and II involved the same cause of action and could

have been advanced in a single suit, the district court did not err in concluding

that the adjudication of Carter II completely precluded the continued litigation

of Carter I. 

B. The District Court’s Sua Sponte Consideration of Res Judicata

Carter next takes issue with the district court’s sua sponte consideration

of the effect of res judicata on Carter I. He also notes in his brief that res

judicata is an affirmative defense that is ordinarily lost if not timely raised. See

FED. R. CIV. P. 8(c); Arizona v. California, 530 U.S. 392, 410 (2000). 

As a preliminary matter, the Department pled res judicata in its answer

to Carter’s second amended complaint, so the issue was not waived. Still, Carter

points out that because the Department did not argue that the entire Carter I

lawsuit was foreclosed by Carter II on res judicata grounds in its motion for

partial summary judgment, he did not address this issue in his response to that

motion. However, after the district court granted summary judgment on the

issue of res judicata, Carter filed a motion for reconsideration, which pointed out

the reasons he believed the district court’s ruling to be legally erroneous. In

response, the Department filed an opposition brief that argued in support of the

court’s initial ruling. 

After considering Carter’s motion for reconsideration and the

Department’s opposition, the court concluded that summary judgment was still

appropriate. Carter admits in his brief on appeal that the reconsideration

motion was warranted to “allow the parties to fully brief and address the

preclusion issue on which the summary judgment dismissal was based.” Since

Carter ultimately had a full opportunity to be heard on the issue of res judicata,

any procedural error in the granting of summary judgment on that issue was
No. 07-20169

8

cured. See Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d 917, 923 (5th Cir.

2000).

C. The First-to-File Rule

Carter argues that the district court erred by not applying the first-to-file

rule in this case. That rule usually applies when opposing parties have filed

separate lawsuits concerning the same core facts. In such instances, the district

court in which the later action was filed may dismiss, stay, or transfer the suit

in order to avoid duplicative litigation. See W. Gulf Mar. Ass’n v. ILA Deep Sea

Local 24, 751 F.2d 721, 728–31 (5th Cir. 1985). As a general rule, “the court in

which an action is first filed is the appropriate court to determine whether

subsequently filed cases involving substantially similar issues should proceed.”

Save Power Ltd. v. Synteck Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997). The

first-to-file rule is grounded in principles of comity and sound judicial

administration. Id. Its concern is to eliminate wasteful duplicative litigation,

to avoid rulings that may trench upon a sister court’s authority, and to avoid

piecemeal resolution of issues calling for a uniform result. Id. This concern

applies where, as was the case here, related cases are pending between two

judges in the same district. See id.

It is unclear precisely how application of the first-to-file rule would have

precluded the operation of res judicata in this case. It is possible that the

Carter II court could have stayed or transferred that case once Carter I was

reinstated, but apparently Carter never informed that court of the existence of

Carter I while Carter II was still pending. And by the time the district court

considered the Department’s motion for summary judgment, Carter II had

already proceeded to a final judgment. Since it is black letter law that a “laterfiled claim can be preclusive of an earlier-filed claim,” Ellis v. Amex Life Ins. Co.,

211 F.3d 935, 937 (5th Cir. 2000) (quoting RESTATEMENT (SECOND) OF
No. 07-20169

9

JUDGMENTS § 14 cmt. a), the district court did not err in determining that Carter

II had preclusive effect on Carter I, notwithstanding the first-to-file rule.

D. Equitable Tolling

Finally, Carter argues thatthe district court should apply equitable tolling

to cases 8028 and 608, which were the subject of Carter II and found to be timebarred by the district courtin that case. Apparently this section of Carter’s brief

was prepared before Carter II was resolved on appeal, because Carter recognizes

that matters involving Carter II must be resolved in conjunction with the

separate appeal of that case. To the extent that Carter argues that our analysis

of the preclusive effect of Carter II on Carter I is somehow dependent on the

resolution of the appeal of Carter II, we note that we have since affirmed the

district court’s judgment in Carter II. See Carter v. Dep’t of Veterans Affairs, No.

06-20494, 2007 WL 1017064 (5th Cir. Mar. 29, 2007).

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.