     Case: 17-40052    Document: 00514142261      Page: 1   Date Filed: 09/05/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                No. 17-40052                              FILED
                              Summary Calendar                    September 5, 2017
                                                                     Lyle W. Cayce
                                                                          Clerk
PHILIP R. KLEIN,

             Plaintiff - Appellant

v.

LAYNE WALKER,

             Defendant - Appellee




                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 1:14-CV-509


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
      Philip Klein appeals the district court’s grant of summary judgment
based on res judicata, its striking of allegations made in Klein’s Second
Amended Complaint, and its decision to deny Klein leave to amend. Finding
no error, we AFFIRM.




      *  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should not be published and is not precedent except under the limited circumstances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. 17-40052
                                       I.
      This saga began when Klein, a blogger and private investigator, filed a
state court action against Walker, a sitting judge, for allegedly retaliating
against him for posting disparaging blog content. Initially, Klein sought only
declaratory and injunctive relief. Id. In response, Walker filed a motion to
dismiss on the basis of judicial and sovereign immunity. He then retired from
the bench and filed a Plea to the Jurisdiction and a Motion for Summary
Judgment Subject to a Plea to the Jurisdiction for Absolute and Qualified
Immunity. This filing restated his previous defenses and argued that Klein’s
claims for declaratory and injunctive relief were moot because Walker was no
longer a sitting judge. Id.
      Shortly after, Klein nonsuited his claims for declaratory and injunctive
relief, pursuing only a free speech retaliation claim pursuant to 42 U.S.C. §
1983. Eleven days later, the state court granted Walker’s motion to dismiss
and his motion for summary judgment. Once the order issued, Klein took no
further action in state court.
      Approximately two weeks later, Klein filed a complaint in federal court,
asserting a carbon copy of his section 1983 free speech retaliation claim. In
response, Walker filed a motion to dismiss based on three defenses:          res
judicata, judicial immunity, and failure to state a claim. The magistrate judge
recommended that Walker’s motion be granted for failure to state a claim, but
with leave to amend.          The district court adopted the part of the
recommendation allowing Klein to amend his complaint. Klein did so, and
Walker responded with an amended motion to dismiss raising the three
grounds he had previously asserted.
      The magistrate judge again recommended that Klein’s claims be
dismissed for failure to state a claim. But he also proposed that Klein be given
one final opportunity to correct the pleading deficiencies.     That amended
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                                No. 17-40052
complaint would be limited to Klein alleging additional details about the
claims that had been previously dismissed; he could not add new claims. The
report further recommended that Walker pursue his res judicata defense
through a motion for summary judgment because of uncertainty about whether
the state court issued a final judgment on the merits.
      After receiving four extensions, Klein filed his Second Amended
Complaint. In response, Walker filed three separate motions: a Motion for
Summary Judgment on the Merits, a Motion to Strike and Dismiss Klein’s
Second Amended Complaint, and a Motion for Summary Judgment Based on
Res Judicata.   In his res judicata motion for summary judgment, Walker
submitted a certified copy of the complete state court record, which indicated
that Klein took no further action following the state court’s grant of summary
judgment.
      The district court held that res judicata barred the claims asserted in
Walker’s earlier pleadings and to the extent Walker was adding new claims,
those should be struck as exceeding the limited authority to amend the
magistrate judge had granted.
                                      II.
      In determining the preclusive effect of a prior state court judgment, we
apply the law of the state in which the judgment was rendered. Weaver v. Texas
Capital Bank N.A., 660 F.3d 900, 906 (5th Cir. 2011). Texas recognizes the
defense of claim preclusion when the following elements are met: (1) a prior
final judgment on the merits by a court of competent jurisdiction; (2) identity
of parties or those in privity with them; and (3) a second action based on the
same claims as were raised or could have been raised in the first action.
Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); see also Norris
v. Hearst Tr., 500 F.3d 454, 462 (5th Cir. 2007) (applying the res judicata
standard stated in Amstadt v. U.S. Brass Corp to determine the preclusive
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                                      No. 17-40052
effect of a prior state judgment in Texas). Because Klein’s state and federal
actions involved the same parties and identical claims, the only question we
must answer is whether the state court rendered a final judgment on the
merits.
       Klein contends the state court order did not constitute a final judgment
on the merits because in granting Walker’s plea to the jurisdiction, the state
court only dismissed the case on jurisdictional grounds, leaving Klein’s claim
unresolved on the merits. But a dismissal on immunity grounds under Texas
law is a dismissal on the merits for purposes of res judicata. Flores v. Edinburg
Consol. Independent School Dist., 741 F.2d 773, 775 n.3 (5th Cir. 1984).
       Klein also makes a number of arguments contesting the finality of the
state court judgment. He contends the state court order did not dispose of his
section 1983 claim because Walker never amended his motion to dismiss to
address it. 1 In addition, Klein argues that the state summary judgment order
was not final because it did not state “with unmistakable clarity that it was a
final judgment.”
       Under Texas law, a judgment is final if it disposes of all remaining
claims and parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). Finality “must be resolved by a determination of the intention of the
court as gathered from the language of the decree and the record as a whole,
aided on occasion by the conduct of the parties.” Id. at 203. Upon examination
of the record, the court may infer finality from the parties’ treatment of the
order, even when the order itself is vague. See id. at 206, see also M.O. Dental
Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004) (inferring finality because the


       1  In his original petition, Klein sought declaratory and injunctive relief. Walker
responded by filing a motion to dismiss on the basis of judicial immunity. Klein then amended
his petition, nonsuiting his claims for declaratory and injunctive relief and pursuing only a
free speech retaliation claim pursuant to 42 U.S.C. § 1983 for monetary damages. Walker did
not amend his motion to dismiss to address Klein’s newly filed section 1983 claim.
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                                  No. 17-40052
parties treated the order as final, even when the order itself did not
unambiguously dispose of all claims).
      The record shows that the state court order disposed of all remaining
claims and parties and thus is a final judgment. See Lehmann, 39 S.W.3d at
206. Although the state court order did not expressly dismiss Klein’s section
1983 claim by name, it was the only live claim pending before the court at the
time it granted both Walker’s Motion for Summary Judgment and his Motion
to Dismiss. In that sense, this case is distinct from the two cases cited by Klein,
both of which involved multiple pending claims before the court, leaving the
trial court’s intention uncertain with respect to unresolved claims. See Coastal
Terminal Operators v. Essex Crane Rental Corp., 133 S.W.3d 335, 338 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (holding that the intent of the
summary judgment order was uncertain because it only granted relief as to the
plaintiff’s claims and never addressed the defendant’s pending counterclaim);
see also Guajardo v. Conwell, 46 S.W.3d 862, 863 (Tex. 2001) (holding the
summary judgment order was not final because it did not dispose of all claims
and parties).   There is no comparable uncertainty here—only one claim
remained before the court when the order issued.
      Moreover, the record indicates that the parties treated the order as a
final judgment. M.O. Dental Lab, 139 S.W.3d at 674-75 (noting “an order…
that all parties appear to have treated as final may be final despite some
vagueness in the order itself”). Klein made no additional filings and the court’s
docket sheet notes September 23, 2014, the date the state court issued its
order, as the “Disposition Date.” If Klein believed the state court order was not
a final judgment, why did he take no further action in state court and instead
file a nearly identical action in federal court a few weeks later?
      The state court dismissal of Klein’s suit thus bars his attempts to bring
claims in federal court grounded in the same allegations of retaliation.
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                                       No. 17-40052
                                             III.
       We next consider whether the district court erred in striking the civil
conspiracy allegation in Klein’s Second Amended Complaint and whether the
district court abused its discretion in denying Klein additional leave to amend.
       It is unclear how Klein construes the addition of the civil conspiracy
claim in his Second Amended Complaint. 2 To the extent the civil conspiracy
allegation is rooted in the same retaliation alleged in his First Amended
Complaint, those claims are barred by res judicata for the reasons we have just
discussed. Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d
627, 631 (Tex. 1992) (“A subsequent suit will be barred if it arises out of the
same subject matter of a previous suit and which through the exercise of
diligence, could have been litigated in a prior suit.”).
       To the extent Klein’s conspiracy allegation against Walker constitutes a
claim arising out of different conduct, Klein failed to adequately brief how the
decision to limit his second amendment to claims previously asserted was an
abuse of discretion. Failure to adequately brief an issue forfeits it. Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
                                       *       *      *
       The judgment of the district court is AFFIRMED.




       2  In his brief, Klein states “Judge Hawthorn only limited Klein’s right to replead to
not including any new claims. Klein in his SAC set forth additional supporting facts of alleged
retaliation by Walker, and his claimed co-conspirators, Dorrell, and Retzlaff, all of which
occurred after the case had been filed in federal court.” Here, it appears Klein construes the
civil conspiracy allegation to be merely an additional fact in support of his preexisting § 1983
claim. But later, he attempts to construe the claim as new so as to contest the district court’s
denial of leave to amend.
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