     Case: 13-20449       Document: 00512800762         Page: 1    Date Filed: 10/10/2014




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

                                                                                FILED
                                                                            October 10, 2014
                                      No. 13-20449
                                                                             Lyle W. Cayce
                                                                                  Clerk
MBOHO MKPARAWA IBIBIO USA, INCORPORATED, Individually;
MAURICE E. EKWO, Individually; MAURICE E. EKWO, as High
Commissioner and Agent of Mboho Mkparawa Ibibio/Mboho Mkparawa Ibibio
USA, Incorporated; GODWIN EKPENE, (Deceased), Individually; GODWIN
EKPENE, as Director, Co-Incorporator and Deputy High Commissioner of
Mboho Mkparawa Ibibio/Mboho Mkparawa Ibibio USA, Incorporated; MBOHO
MKPARAWA IBIBIO; ESSIEN ISONG, Individually; ESSIEN ISONG, as
Director of MBOHO Mkparawa Ibibio USA, Incorporated,

                                                  Plaintiffs - Appellants

v.

SYLVANUS OKON; JOSEPH D. IBOKETTE; DR. MACARTIN MAC
UKPONG; EFFIONG EYO MBABA; EMMANUEL ISONG; IBOK ESEMA,

                                                  Defendants - Appellees



                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:12-CV-2363


Before JOLLY and JONES, Circuit Judges, and GODBEY, District Judge. ∗
PER CURIAM: **



       ∗
        District Judge of the Northern District of Texas, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-20449
      The Court has considered this appeal from the district court’s sua sponte
dismissal of this case, and related rulings, in light of the briefs and pertinent
portions of the record. The parties are familiar with the claims in dispute,
which arise from changes in the control of Mboho, USA, an entity related to
Mboho Nigeria. The district court dismissed Appellants’ case on the basis of
res judicata and Appellants’ lack of standing to sue. We reverse and remand.
      The court’s res judicata rationale is incorrect because the Texas state
court suit was dismissed for lack of jurisdiction.         In Texas, however, a
“dismissal for lack of subject matter jurisdiction does not preclude a party from
litigating the merits of the same cause of action in a court of competent
jurisdiction[.]”   Butler v. Cont’l Airlines, Inc., 116 S.W.3d 286, 287
(Tex. App. 2003). Federal courts “must give to a state-court judgment the same
preclusive effect as would be given that judgment under the law of the state in
which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 81, 104 S. Ct. 892, 896 (1984). Consequently, the later
federal suit was not barred by the state court’s jurisdictional dismissal order.
      The court’s lack of standing and lack of authority rulings do not account
for the evidence in the record. Mboho Nigeria, a foreign entity, is not foreclosed
from suing defendants in the United States in federal court simply because it
is not registered to do business here. Further, Appellant Ekwo is listed in
Mboho Nigeria’s corporate profile as Secretary of Mboho, USA, ROA.3006, was
appointed as Mboho, Nigeria’s High Commissioner to USA/Canada, ROA.3440,
and received a letter authorizing him to institute legal action on behalf of
Mboho, Nigeria, ROA.3619. Appellees have not challenged any of these facts,
nor have they challenged that Appellants Ekwo and Isong (Appellant Ekpene
is apparently deceased) have authority to represent Mboho USA. The district
court thus erred in rejecting Appellants’ standing and authority to sue.


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                                    No. 13-20449
      The district court did not abuse its discretion, however, in denying
Appellants’ abusively excessive, repetitious, and burdensome discovery
requests.
      It is not clear whether the district court also found dismissal appropriate
based on its statement that Appellants’ marks and logos were not registered
with the U.S. Patent and Trademark Office. Lack of registration does not,
however, necessarily bar such claims, where a work was first published in a
country, like Nigeria, that adheres to the Berne Convention.                    See
15 U.S.C. § 1126 (2012); Pepe (U.K.) Ltd. v. Ocean View Factory Outlet Corp.,
770 F. Supp. 754, 761 (D.P.R. 1991). Moreover, the district court failed to
provide Appellants with any opportunity to respond before voicing this
concern.     Carroll    v.   Fort    James   Corp.,    470    F.3d    1171,   1177
(5th Cir. 2006)(“district courts should not dismiss claims sua sponte without
prior notice and opportunity to respond”).
      Finally, because we must reverse and remand, there is no ground for
issuing sanctions against Appellants for a frivolous appeal, and Appellees’
motion is DENIED.
      The judgment of the district court is REVERSED and REMANDED for
further proceedings consistent herewith.




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