* 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.

REVISED JANUARY 29, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50555

Summary Calendar

BRYAN S. FOSTER d/b/a Jaguars Gold Club

Plaintiff-Appellant

v.

THE CITY OF EL PASO

Defendant-Appellee

Appeal from the United States District Court for the

Western District of Texas, El Paso

Case No. 3:08-CV-00065-FM

Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

Foster appeals from a district court decision abstaining from exercising

jurisdiction under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971), and

dismissing Foster’s claim with prejudice. Foster does not challenge the district

court’s choice to abstain, but instead, appeals its ruling dismissing his claims

with prejudice. We affirm the district court’s decision. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 28, 2009

Charles R. Fulbruge III

Clerk
No. 08-50555

1 According to the City’s brief, the case is set for trial in April 2009.

2

Foster operates an adult entertainment club in El Paso. The City has an

ordinance prohibiting certain conduct in sexually oriented businesses and

regulating their hours of operation. In June 2007, Foster sued in Texas court

seeking declaratory and injunctive relief and alleging that the ordinance violates

his rights of speech, equal protection, and substantive due process under the

Texas Constitution.1In December 2007, three of Foster’s employees were cited

for violating the ordinance. In February 2008, Foster brought a federal suit

seeking injunctive relief and damages for violations of his federal constitutional

rights to equal protection and substantive due process. 

The district court granted the city’s motion to abstain from exercising

jurisdiction under Younger and dismissed Foster’s claim with prejudice. Foster

now appeals. Apparently resigned to bringing both his federal and state claims

in state court, he only appeals the district court’s decision to dismiss with

prejudice. He fears that a Texas court will consider a federal court’s dismissal

with prejudice, by itself, as a final decision on the merits foreclosing relief at the

state level for his federal, and perhaps state, constitutional claims. This fear is

misplaced.

A Texas court will apply the federal law of claim preclusion to a decision

rendered in federal court. San Antonio Indep. Sch. Dist. v. McKinney,

936 S.W.2d 279, 281 (Tex. 1996). The proceedings below very clearly do not meet

this court’s four-element test for claim preclusion. See, e.g., Test Masters Educ.

Servs., Inv. v. Singh, 428 F.3d 559, 571 (5th Cir. 2004). Specifically, Foster’s

claims were not decided “on the merits.” The district court’s express purpose in

applying Younger abstention was to avoid reaching the merits, which would

likely interfere with pending state judicial proceedings. Accordingly, federal law

does not preclude Foster from litigating his claims in state court.
No. 08-50555

3

Further, the Supreme Court’s opinion in Semtek International, Inc. v.

Lockheed Martin Corp. held that a dismissal with prejudice, without more, is not

claim-preclusive. 531 U.S. 497, 505-06, 121 S. Ct. 1021, 1027 (2001). The

opinion contained an extended discussion of what a dismissal with and without

prejudice means in the context of Fed. R. Civ. Pro. 41(b):

The primary meaning of dismissal without prejudice, we think, is

dismissal without barring plaintiff from returning later,to the same

court, with the same underlying claim. That will also ordinarily

(though not always) have the consequence of not barring the claim

from other courts, butits primary meaning relates to the dismissing

court itself.

. . .

We think, then, that the effect of the “adjudication upon the

merits” default provision in Rule 41(b) . . . is simply that, unlike a

dismissal “without prejudice,” the dismissal in the present case

barred refiling ofthe same claim in the [same federal district court].

Id.

Although Semtek, dealt with diversity jurisdiction, the Supreme Court’s

holding and its related discussion make clear that dismissals “with prejudice”or

“on the merits,” or both, are governed by federal common law, not Fed R. Civ.

Pro. 41(b). Semtek, 531 U.S. at 508, 121 S. Ct. at 1028. The Court went on to

note that other courts may view a dismissal with prejudice in federal court as

having claim preclusive effect, but that such a holding might violate the Rules

Enabling Act and could be better addressed on direct appeal. Id. at 506 n.2, 121

S. Ct. at 1027 n.2; see also Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665,

679 (5th Cir. 2003) (“[P]ermitting a rule of civil procedure to control the effect

given a federal judgment by a state court arguably violates the jurisdictional

limitation of the Rules Enabling Act.”).

A Texas court may erroneously choose to disregard Semtek and this court’s

claim-preclusion law by concluding that all dismissals with prejudice have claim-
No. 08-50555

4

preclusive effect, but this court will not alter the lower court’s judgment on the

premise that a Texas court will commit such an error. As the Supreme Court

noted in Semtek, Foster may address this issue, if it arises, in a Texas court of

appeals.

AFFIRMED.