     Case: 15-10420      Document: 00513850918         Page: 1    Date Filed: 01/26/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-10420                                  FILED
                                  Summary Calendar                         January 26, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
TERESA WARD COOPER,

                                                 Plaintiff-Appellant

v.

CITY OF DALLAS, TEXAS; KIMBERLY OWENS, Individually and in Her
Official Capacity,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-1330


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Teresa Ward Cooper seeks leave to proceed in forma pauperis (IFP) in
appealing the district court’s grant, in part, of summary judgment to the
defendants and dismissing her federal and state tort claims, except for her
claims involving a 2012 decision of a City of Dallas Civil Service Commission
Administrative Law Judge (ALJ). Cooper also challenges the district court’s



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10420

decision to deny her motion to remand filed immediately following the removal
of the case to the federal court.      By moving to proceed IFP, Cooper is
challenging the district court’s certification that her appeal was not taken in
good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997).
      In asserting that the district court erred in failing to grant her motion to
remand her petition to the state court following the removal of the action,
Cooper contends that the petition alleged predominately state claims. The
district court had original jurisdiction over the federal claims at the time that
she sought the remand to state court and, therefore, it could exercise
supplemental jurisdiction over the factually related state law claims. See 28
U.S.C. § 1331; 28 U.S.C. § 1367(a); City of Chicago v. Int’l Coll. of Surgeons,
522 U.S. 156, 167-72 (1997). The district court did not abuse its discretion in
denying the motion to remand because it properly considered the factors in
§ 1367(c) along with the factors of judicial economy, convenience, fairness, and
comity in determining that it would retain jurisdiction over the state claims.
See Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 221 (5th Cir. 2012);
Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 601-02 (5th
Cir. 2009). Thus, the district court’s denial of the motion to remand does not
raise a nonfrivolous issue for appeal. See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983).
      In challenging the district court’s partial grant of the defendants’ motion
for summary judgment and dismissal of her claims based on res judicata,
Cooper argues that the defendants relied on the wrong procedural vehicle and
also were judicially estopped from raising the res judicata defense. The district
court’s grant of the defendants’ motion for summary judgment is reviewed de
novo. See Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999). Cooper’s



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                                 No. 15-10420

argument that the defendants were required to raise the claim of res judicata
in a FED. R. CIV. P. 12(b)(6) motion is frivolous. Cf. Lafreniere Park Foundation
v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000).
      The defendants presented evidence that the doctrine of res judicata was
applicable. There was proof of a final judgment by a state court with competent
jurisdiction and there was an identity of the parties and those in privity with
them because the City was a defendant in both actions and could represent the
interests of its employee defendant Kimberly Owens. See Cooper v. City of
Dallas, 229 S.W.3d 860 (Tex. App. 2007); Amstadt v. United States Brass Corp.,
919 S.W.2d 644, 653 (Tex. 1996). Further, the claims in the instant case and
in the earlier state court action all arose out of Cooper’s termination from the
Dallas Police Department and, therefore, should have been and could have
been litigated in the same lawsuit. See Amstadt, 919 S.W.2d at 652; Jones v.
Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1341-42 (5th Cir. 1996).
      The transcript of the state court trial supports the defendants’ assertion
that their position taken in the instant case was not contrary to their
arguments made in the state court case. In the state proceeding, Cooper’s
counsel agreed that the proceeding was limited to the appeal from the
administrative decision, and counsel did not seek to add additional causes of
action. The transcript does not reflect that the defendants argued that Cooper
was precluded from raising additional causes of action.        Cooper has not
produced any evidence to support her argument that the defendants are
judicially estopped from raising the defense of res judicata. See Hall v. GE
Plastic PTE LTD, 327 F.3d 391, 395 (5th Cir. 2003). Thus, the district court
did not abuse its discretion in granting summary judgment in the defendants’
favor and dismissing Cooper’s claims, except for the claims involving the 2012
administrative decision, based on res judicata. See Anderson v. Liberty Lobby,



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                                  No. 15-10420

Inc., 477 U.S. 242, 256-57 (1986). This claim does not raise a nonfrivolous issue
for appeal. See Howard, 707 F.2d at 220.
      Regarding Cooper’s challenge to the district court’s dismissal of the state
tort claims, generally, the federal court will decline to exercise jurisdiction over
pendent state law claims when the federal claims are dismissed or eliminated
prior to trial; however, this rule is not mandatory and depends on the specific
circumstances of the case. Batiste v. Island Records, Inc., 179 F.3d 217, 227
(5th Cir. 1999). The district court’s decision to dismiss Cooper’s state law
claims of libel and slander served the interests of judicial economy and
convenience of both the federal and state courts and was not unfair to the
interests of either party. See id. Cooper has not come forth with any evidence
showing that the district court abused its discretion in addressing and
dismissing the state law claims. See Anderson, 477 U.S. at 256-57. This claim
does not raise a nonfrivolous issue for appeal. See Howard, 707 F.2d at 220.
      Cooper has failed to show that she will raise a nonfrivolous issue on
appeal. See Howard, 707 F.2d at 220. Accordingly, the motion to proceed IFP
is DENIED, and the appeal is DISMISSED. See Baugh, 117 F.3d at 202 n.24;
5TH CIR. R. 42.2.




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