                   REVISED JANUARY 29, 2009
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                             FILED
                                                                          January 28, 2009

                                     No. 08-50555                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk


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.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-50555

      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.1 In 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.


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

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      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, but its 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 of the 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-


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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.




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