                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                 December 21, 2006
                         FOR THE FIFTH CIRCUIT
                         _____________________                Charles R. Fulbruge III
                                                                      Clerk
                              No. 06-20666
                            Summary Calendar
                         _____________________

ALPHONSO O. MOODY,

                                                 Plaintiff - Appellant,

                                versus

KRAFT FOODS GLOBAL INC.,
formerly known as Kraft Foods North America Inc.,

                                            Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, Houston
                       USDC No. 4:05-CV-1765
_________________________________________________________________

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     The   Appellant,   Alphonso   O.   Moody   (“Moody”)    appeals      the

district court’s grant of summary judgment to Kraft Foods Global

Inc. (“Kraft”).   For the following reasons, we affirm the judgment

of the district court.

     On April 22, 2004, Moody filed suit against Kraft alleging

race and national origin discrimination under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended,

and the Civil Rights Act of 1991, 41 U.S.C. § 1981, et seq., as


     *
      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this opinion should not be published and is not precedent except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.
amended.       Specifically, Moody claimed that Kraft had excluded him

from       advancement   or   promotion       because   of   his   race    and   had

retaliated against him for complaining about the company’s alleged

failure to promote him.        He also alleged intentional infliction of

emotional distress.

       On September 24, 2004, Kraft filed a motion for summary

judgment.      On December 10, 2004, while the summary judgment motion

was pending, Moody filed an opposed motion for leave to amend his

complaint to delete his race discrimination claim and to replace it

with an age discrimination claim.1             Moody never filed a response to

the summary judgment motion.              On July 7, 2005, United States

District Court Judge Lynn Hughes denied Moody’s motion for leave to

amend and granted summary judgment in favor of Kraft.                     Moody did

not appeal.

       While his first case was ongoing, Moody filed the instant

action against Kraft, alleging age discrimination, in the 125th

Judicial District of Harris County. On May 17, 2005, Kraft removed

the case to federal district court based on diversity jurisdiction.

On September 19, 2005, Kraft filed a motion to dismiss, or in the

alternative, a motion for summary judgment, arguing Moody’s claims

are barred by res judicata, collateral estoppel, and waiver.

Finding that res judicata barred Moody’s second suit, the district

       1
       While the summary judgment motion was pending, Moody also
filed a Second Request for Conference Motion, a Motion and a
Renewed Motion for Discovery, and a Motion to Continue the Deadline
for Filing a Response to Kraft’s Motion for Summary Judgment.

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court granted summary judgment in favor of Kraft.       Moody timely

appealed.

     After careful review of the record, we conclude that the

district court correctly determined that Moody’s age discrimination

claim is barred.   The parties are identical in both suits; a final

judgment on the merits was rendered in the first suit; both

judgments were rendered by courts of competent jurisdiction; and

the claims in both lawsuits arise out of the same nucleus of

operative facts relating to Kraft’s treatment of Moody.    Nilsen v.

City of Moss Point, Mississippi, 701 F.2d 556, 559 (5th Cir. 1983).

Moody’s primary argument that District Judge Hughes never decided

or had jurisdiction over his age discrimination claim because Judge

Hughes refused to allow him to amend his complaint is meritless.

But for his “own dilatoriness, [Moody] could have – and therefore

should have – timely asserted [his age discrimination claim] in

[his] initial lawsuit.” Bishop v. Kerr-McGee, 57 Fed. Appx. 211 at

* 1 (5th Cir. 2003) (unpublished) (per curiam).    In any event, his

opportunity to raise any error by District Court Judge Hughes in

refusing to allow him to amend his complaint would have been in a

appeal of that final judgment.       Because Moody “can only win the

suit by convincing the court that the prior judgment was in error,

the second suit is barred.”   Test Masters Educ. Servs. v. Singh,

428 F.3d 559, 571 (5th Cir. 2005) (citing New York Life Insur. Co.

v. Gillispie, 203 F.3d 384, 387 (5th Cir. 2000).



                                 3
     For essentially the reasons set forth in its well-reasoned

opinion, the ruling of the district court is

                                                      AFFIRMED.




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