           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 24, 2009

                                       No. 08-30399                    Charles R. Fulbruge III
                                                                               Clerk

FRANK C MINVIELLE LLC

                                                   Plaintiff-Appellant
v.

ATLANTIC REFINING CO, formerly known as Atlantic Richfield Co; OXY
USA INC, formerly known as Cities Service Oil Co; PACIFIC ENTERPRISES
OIL CO (USA), formerly known as Sabine Production Co Inc; MOSAIC
GLOBAL OPERATIONS INC, formerly known as IMC Global Operations Inc

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:05-cv-1312


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Frank C. Minvielle, LLC (“Minvielle”) appeals the
district court’s order awarding summary judgment to Defendants-Appellees
Atlantic Refining Co. (“Atlantic Refining”), OXY USA, Inc. (“Oxy”), Pacific
Enterprises Oil Co. (“Pacific Oil”), and Mosaic Global Operations, Inc. (“Mosaic”)



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-30399

(collectively “Appellees”) on the ground of res judicata.      For the following
reasons, we AFFIRM.
            I. FACTUAL AND PROCEDURAL BACKGROUND
A.    Factual Background
      This appeal arises from the second of two lawsuits in which Minvielle has
asserted materially identical claims for alleged environmental damage stemming
from a nearly fifty-year-old oil lease.
      In September 1961, Juliet Bourgeois Delcambre (“Delcambre”) entered into
an oil, gas, and mineral lease (the “1961 lease”) with Atlantic Refining to explore
and drill for oil on land that she owned in Iberia Parish, Louisiana (“the
property”). Pursuant to the lease, a well was drilled on the property, and various
companies operated the well according to the terms of an Operating Agreement
between Atlantic Refining and the other companies. Appellees in this case are
former parties to or the assignees and/or successors-in-interest of the parties to
this agreement.
      In 1974, Petro-Lewis Funds, Inc. (“Petro-Lewis”) purchased an interest in
the property and became the operator of the well. In December 1977, it plugged
and abandoned the well and the lease expired. When Delcambre died over a
decade later, her daughter and grandchildren (“the Cowans”) inherited the
property. In 1998, the Cowans sold the property to Minvielle & Segura, LLC by
an Act of Cash Sale, retaining a one-half mineral interest. In November 2001,
Frank C. Minvielle acquired full ownership of Minvielle & Segura, LLC and
changed its name to Frank C. Minvielle, LLC.
B.    Minvielle I
      In August 2003, Minvielle sued, among others, IMC Global Operations,
Inc. (“IMC”)—Petro-Lewis’s successor and Mosaic’s predecessor—in Louisiana
state court, bringing both contract and tort claims for alleged contamination of
the property. The defendants removed to the Western District of Louisiana on

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the basis of diversity, see Frank C. Minvielle, L.L.C. v. IMC Global Operations,
Inc. (Minvielle I), 380 F. Supp. 2d 755 (W.D. La. 2004), after which all remaining
defendants except IMC were dismissed. IMC filed various motions to dismiss,
including one under Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim, which the district court converted to a motion for summary judgment.
The court granted the motion. As to the contract claims, the court explained
that under Louisiana law the right to sue for the property damage is a personal
right, and it found both that Minvielle did not receive an assignment of the right
to sue for prior damages from the Cowans at the time of the sale and that the
1961 lease did not create a stipulation pour autrie in Minvielle’s favor. Id. at
766, 770. It therefore held that Minvielle lacked standing to bring the contract
claims against IMC. Id. at 770. As to the tort claims, the court noted that under
Louisiana law, “the owner of land at the time of the alleged damages is the
person with the real and actual interest to assert the claim for damages to the
land,” id. at 770, and that Minvielle sought damages arising from operations
that occurred prior to its purchase of the property, id. at 772. Accordingly, it
found that Minvielle lacked standing to bring the tort claims against IMC.1 Id.
       Minvielle moved for reconsideration, arguing that at the time of the 1998
Act of Cash Sale, the Cowans intended to convey all rights to Minvielle &
Segura, including the right to sue for past damages to the property. In support,
Minvielle asserted that it had procured an amendment to the Act of Cash Sale
reflecting this purported agreement, and it informed the court that it would file
the document with the court. Minvielle, however, never filed the purported
amendment. On January 12, 2005, the district court denied Minvielle’s motion


       1
         On the same day that the court granted IMC’s motion for summary judgment, IMC
filed a third-party complaint against Atlantic Refining, Oxy, and Pacific Oil, among others,
asserting claims for contribution on the ground that each was a former party to or successor-
in-interest of a party to the Operating Agreement. Because of the court’s decision in its favor,
however, IMC never served this complaint.

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for reconsideration, reiterating its previous ruling and noting that Minvielle had
neither amended the Act of Cash Sale nor demonstrated that a Louisiana court
would allow such an amendment. Minvielle did not appeal the judgment, and
it became final.
C.    Minvielle II
      In June 2005, Minvielle again filed suit in Louisiana state court, alleging
claims identical to those in Minvielle I, against, among others, Atlantic
Refining—an original party to the 1961 lease—and IMC, Oxy, and Pacific Oil,
each of which it concedes is a successor-in-interest by sublease or assignment of
the 1961 lease. Mosaic was substituted for IMC, and it removed the case to the
Western District of Louisiana on the basis of diversity. See Frank C. Minvielle,
LLC v. Atl. Ref. Co. (Minvielle II), Civil Action No. 05-1312, 2007 WL 2668715
(W.D. La. Sept. 6, 2007). Minvielle expressly stated in its complaint that the
claims in this suit were identical to those in Minvielle I and further agreed with
the district court that “there’s nobody who sits at the table in [Minvielle II] that
didn’t sit [at] the table [in Minvielle I].” However, Minvielle argued that it now
had standing to assert its claims because, after the final judgment in Minvielle I,
it executed an amendment to the Act of Cash Sale—the same purported
amendment discussed in Minvielle I—which provided that the parties to that
agreement intended to assign to Minvielle the right to sue for previous damage
to the property. Notably, the alleged amendment, by its very terms, did not
amend the Act of Cash Sale or confer any new rights upon Minvielle; rather, as
Minvielle acknowledged, it purported only to clarify the original intentions of the




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parties to the agreement.2 Minvielle nonetheless argued that the amendment
gave it standing to sue.
       Appellees moved to dismiss on the ground of res judicata, arguing that
Minvielle could not relitigate the question of its standing to assert contract and
tort claims against them, as this was the exact same issue the court decided in
Minvielle I. The district court converted the motion into one for summary
judgment and granted it. In so doing, the district court explained that “[t]he
claims asserted are identical to those asserted in Minvielle I, there is
commonality of parties, and the court’s jurisdictional ruling in Minvielle I is a
final and valid judgment.” Id. at *7.3 It further noted that the amendment to
the Act of Cash Sale—which by its terms did not convey new rights and which
even Minvielle’s counsel acknowledged was merely an “act of correction” and
“clarification”—did not cure the res judicata effect of the Minvielle I judgment.
See id. at *6.
              II. JURISDICTION AND STANDARD OF REVIEW
       At oral argument, Minvielle challenged, for the first time, the subject-
matter jurisdiction of the district court in Minvielle I and II and of this court in


       2
         Under Louisiana law, an actual amendment attempting to change the original
agreement would have been ineffective. See Lejuene Bros. v. Goodrich Petroleum Co., 981 So.
2d 23, 31 (La. Ct. App. 2007) (noting “Louisiana’s longstanding rule that the right to damages
conferred by a lease is a personal right that must be specifically assigned at the time of sale”).
       3
        Although the district court’s opinion in Minvielle II analyzes only the question of
Minvielle I’s res judicata effect on Minvielle II, the court appears to have ruled for Appellees
on two grounds:
       Accordingly, defendants’ motions for summary judgment based on res judicata
       are GRANTED. Because the Minvielle I finding that plaintiff did not have
       standing has res judicata effect, the court in the instant case does not have
       subject matter jurisdiction.
Minvielle II, 2007 WL 2668715, at *7. Given that the district court addressed the entirety of
its opinion to the question of res judicata and expressly granted Appellees’ motion on that
ground, we agree with Appellees that the court’s single mention of jurisdiction in its
concluding statement can be disregarded as erroneous and unnecessary dicta.

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this appeal, and we ordered supplemental briefing.         Having reviewed the
briefing, we find Minvielle’s contentions to lack merit.
      As a preliminary matter, although the district court in Minvielle I
certainly had jurisdiction to determine its own jurisdiction, see United States v.
Ruiz, 536 U.S. 622, 628 (2002); Habetz ex rel. Habetz v. La. High Sch. Athletic
Ass’n, 915 F.2d 164, 167 (5th Cir. 1990), Minvielle challenges the propriety of
removal in Minvielle I, arguing that the case should have been remanded to
state court. The Supreme Court has explained, however, that “[a] party that has
had an opportunity to litigate the question of subject-matter jurisdiction may not
. . . reopen that question in a collateral attack upon an adverse judgment. It has
long been the rule that principles of res judicata apply to jurisdictional
determinations—both subject matter and personal.”           Ins. Corp. of Ir. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982); cf. Royal Ins.
Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir. 1992) (“If the
parties against whom judgment was rendered did not appeal, the judgment
becomes final and the court’s subject matter jurisdiction is insulated from
collateral attack.”) This is true even if the earlier judgment was incorrect. See
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (“Nor are the res
judicata consequences of a final, unappealed judgment on the merits altered by
the fact that the judgment may have been wrong or rested on a legal principle
subsequently overruled in another case.”). If the Minvielle I court should have
remanded rather than granted summary judgment, its judgment could have
been reversed on appeal, but Minvielle chose not to appeal. Accordingly, the
judgment became final and is now insulated from Minvielle’s collateral attack.
See Des Moines Navigation & R.R. Co. v. Iowa Homestead Co., 123 U.S. 552, 559
(1887).
      The district court also had jurisdiction in Minvielle II.      As we have
explained,

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       It is well settled that a federal district court can exercise ancillary
       jurisdiction over a second action in order to secure or preserve the
       fruits and advantages of a judgment or decree rendered by that
       court in a prior action. Such jurisdiction is appropriate where the
       effect of an action filed in state court would effectively nullify the
       judgment of a prior federal action. This is true even where the
       federal district court would not have jurisdiction over the second
       action if it had been brought as an original suit.
Royal Ins. Co. of Am., 960 F.2d at 1292 (citations, alteration, and internal
quotation marks omitted). This is precisely the case here. Notwithstanding
Minvielle’s attempt to frame the issue below as a question of standing, the issue
was simply one of res judicata—whether the court’s Minvielle I decision
precluded Minvielle from arguing that it has standing to sue for the alleged
environmental damages in Minvielle II. The question of standing is precisely the
question that Minvielle I addressed, and there have been no changed
circumstances that would warrant bypassing the bar of res judicata. Minvielle’s
second suit, if successful, would nullify the district court’s judgment in Minvielle
I. Thus, the Minvielle II court properly had ancillary jurisdiction to preserve the
effect of its Minvielle I judgment.
       We have jurisdiction over the district court’s final order granting Appellees
summary judgment under 28 U.S.C. § 1291.4 “We review the district court’s
grant of summary judgment de novo, applying the same legal standards as the
district court.” Aubris Res. LP v. St. Paul Fire & Marine Ins. Co., 566 F.3d 483,
486 (5th Cir. 2009). “The res judicata effect of a prior judgment is a question of
law that we review de novo.” Davis v. Dallas Area Rapid Transit, 383 F.3d 309,
313 (5th Cir. 2004).



       4
        In its supplemental briefing, Minvielle argues for the first time that this court should
abstain from exercising its jurisdiction under Burford v. Sun Oil Co., 319 U.S. 315 (1943). As
the issue on appeal is simply the res judicata effect of a prior judgment, however, Burford
abstention is inapplicable. To the extent that Minvielle seeks to collaterally attack the final,
unappealed judgment in Minvielle I on this ground, we reject its argument as untimely.

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                                  III. DISCUSSION
A.     Choice of Law
       Although each appellee moved to dismiss Minvielle II on the basis of res
judicata, the parties do not appear to agree on whether Louisiana or federal res
judicata law applies.5 Under our pre-2001 precedent, federal res judicata law
would clearly apply. See Mowbray v. Cameron County, 274 F.3d 269, 281 (5th
Cir. 2001) (“We apply federal law to determine the preclusive effect of a federal
judgment, even if that judgment was based on state law.”) However, in Semtek
International Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), the Supreme
Court suggested that state res judicata law, incorporated as federal common law,
should apply. There, the Court held that “federal common law governs the
claim-preclusive effect of a dismissal by a federal court sitting in diversity,” but
it adopted “as the federally prescribed rule of decision, the law that would be
applied by state courts in the State in which the federal diversity court sits.” Id.
at 508. As we have explained, the Semtek Court held “that while federal law
ultimately determines whether a federal judgment precludes a subsequent
action or argument, when the basis of the original court’s jurisdiction is diversity
of citizenship, federal courts should apply the law of the forum state unless the
state law is incompatible with federal interests.” Am. Home Assurance Co. v.
Chevron, USA, Inc., 400 F.3d 265, 271 n.20 (5th Cir. 2005) (citing Semtek, 531
U.S. at 508). But see Harper Macleod Solicitors v. Keaty & Keaty, 260 F.3d 389,
396 n.7 (5th Cir. 2001) (“Semtek did not address the role of state law in
determining the preclusive effect of jurisdictional findings made by a federal
court sitting in diversity.”).


       5
        Atlantic Refining does not differentiate between federal and Louisiana res judicata
law, Mosaic argues that Louisiana law applies, Oxy and Pacific argue that Louisiana law
applies but, alternatively, that federal res judicata law should apply, and Minvielle argues
that the court should look to Louisiana law. The district court, without much discussion,
applied Louisiana res judicata law.

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      In this case, however, we need not weigh the effect of Semtek, as Louisiana
courts “‘have repeatedly confirmed that federal law is applicable to consideration
of whether a federal court judgment has res judicata effect.’” Jones ex rel. Jones
v. GEO Group, Inc., 6 So. 3d 1021, 1025 (La. Ct. App. 2009) (quoting Green v.
Iberia Par. Sch. Bd., 945 So. 2d 940, 943 (La. Ct. App. 2006)). Thus, whether we
look to Louisiana law or federal law to provide the rule of decision, the result is
the same: federal res judicata law applies.
B.    Res Judicata
      Under federal law, the test for res judicata contains four elements:
      (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) (citing
Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir. 2004)). Here,
the second and fourth elements are not in dispute. Both Minvielle I and II arise
out of the same alleged breaches of contract and tortious conduct, Minvielle
expressly admits that its claims in Minvielle I and II are identical, and, as
explained above, Minvielle cannot now challenge the jurisdiction of the district
court in Minvielle I, which certainly had jurisdiction to determine its own
jurisdiction. See Ruiz, 536 U.S. at 628; Habetz, 915 F.2d at 167. The only
elements that Minvielle challenges are the first and third elements: whether the
judgment in Minvielle I, which was final and unappealed, was a judgment on the
merits, and whether the parties to each case are identical or in privity. Both
challenges lack merit.
      1.    Judgment on the Merits
      Minvielle first asserts that the Minvielle I decision was not a judgment on
the merits. Although it is technically correct, this does not preclude application


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of res judicata in this case. In Minvielle I, the district court granted IMC
summary judgment based upon Minvielle’s lack of standing, a jurisdictional
issue. Cobb v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006) (“[T]he issue of
standing is one of subject matter jurisdiction . . . .”). Although a jurisdictional
ruling is technically not an adjudication on the merits, “[i]t has long been the
rule that principles of res judicata apply to jurisdictional determinations—both
subject matter and personal.” Ins. Corp. of Ireland, 456 U.S. at 702 n.9; accord
Beiser v. Weyler, 284 F.3d 665, 673 (5th Cir. 2002). As we have explained,
      Although the dismissal of a complaint for lack of jurisdiction does
      not adjudicate the merit so as to make the case res judicata on the
      substance of the asserted claim, it does adjudicate the court’s
      jurisdiction, and a second complaint cannot command a second
      consideration of the same jurisdictional claims.
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (per curiam). Thus, because
the unappealed Minvielle I judgment—which adjudicated the question of
Minvielle’s standing to bring the claims it now asserts—is unquestionably final,
it satisfies this res judicata requirement.
      2.       Identity of the Parties
      Notwithstanding its previous agreement that “there’s nobody who sits at
the table in [Minvielle II] that didn’t sit [at] the table in [Minvielle I],” Minvielle
argues on appeal that res judicata cannot apply to Atlantic Refining, Oxy, and
Pacific Oil, because they were not parties to Minvielle I.6 Res judicata applies
only when the parties in the second suit are identical to or in privity with the
parties in the first suit.      Test Masters Educ. Servs., Inc., 428 F.3d at 571.
Notably, as the Supreme Court recently reaffirmed in Taylor v. Sturgell, 128 S.
Ct. 2161 (2008), the parties need not actually be identical: “nonparty preclusion
may be justified based on a variety of pre-existing ‘substantive legal



      6
          Minvielle concedes that IMC, now Mosaic, was a party in both Minvielle I and II.

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relationship[s]’ between the person to be bound and a party to the judgment.
Qualifying relationships include, but are not limited to, preceding and
succeeding owners of property . . . and assignee and assignor.” Id. at 2172
(alteration in original, citations omitted).
      Here, Minvielle expressly concedes in its brief that “IMC (Mosaic), Oxy,
and Pacific are successors-in-interest by sub-lease or assignment of the original
1961 mineral lease between Delcambre and [Atlantic Refining].” It thus admits
that Oxy and Pacific Oil are succeeding owners of property and/or assignees, and
that Atlantic Refining is a preceding owner of property and/or assignor.
Therefore, although Oxy, Pacific Oil, and Atlantic Refining were not parties to
Minvielle I, the identity-of-the-parties requirement of res judicata is met.
      Accordingly, all four elements required for res judicata to apply are
satisfied, and the district court properly held the judgment in Minvielle I to be
res judicata on this second suit.
                               IV. CONCLUSION
      For the reasons stated above, we hold that the district court properly
granted Appellees’ motion for summary judgment on the basis of res judicata.
We therefore AFFIRM the judgment of the district court.
      AFFIRMED.




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E. GRADY JOLLY, Circuit Judge, specially concurring:
      I am happy to concur. The standing issue in these cases has always
referred to the lack of statutory standing under Louisiana law because of the
failure of the plaintiff to demonstrate a cognizable interest in the res at issue.
The standing issue never constituted a challenge to the personal or subject-
matter jurisdiction of the federal court. Consequently, it is quite correct to say
that Minvielle I was a decision on the merits of the plaintiff’s claim, that the case
now before us is identical in all relevant respects to Minvielle I, and that res
judicata is a bar to this case.




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