     Case: 17-30037      Document: 00514044459         Page: 1    Date Filed: 06/22/2017




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

                                    No. 17-30037                                  FILED
                                  Summary Calendar                            June 22, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
NARISSA DAWN BRADFORD,

                                                 Plaintiff - Appellant
v.

LAW FIRM OF GAUTHIER, HOUGHTALING & WILLIAMS, L.L.P.;
JAMES M. WILLIAMS, Esquire,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:16-CV-3692


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Narissa Dawn Bradford (“Bradford”), proceeding
pro se, appeals the district court’s dismissal of her complaint for failure to state
a claim upon which relief can be granted under Federal Rule of Civil Procedure
12(b)(6). The district court held that the claims in the instant lawsuit were
barred by the doctrine of res judicata because these claims arose “out of all or




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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part of the transaction at issue” in a previous lawsuit between the instant
parties. Finding no reversible error, we AFFIRM.
      I.     BACKGROUND AND PROCEDURAL HISTORY
      In 2012, Bradford retained Defendants-Appellees Gauthier, Houghtaling
& Williams, L.L.P., Earl Perry, and James Williams (collectively “GHW”) to
represent her with respect to a lawsuit in Italy against her former companion.
Bradford was ultimately unsuccessful in that lawsuit.
      Subsequent to the Italian lawsuit but prior to the underlying lawsuit,
Bradford filed pro se a malpractice lawsuit against GHW in federal district
court. In the complaint, Bradford alleged that GHW had violated Louisiana’s
Rules of Professional Conduct and breached the contract with her.               The
complaint sought $30,000,000 in damages. After GHW filed an answer to the
complaint, Bradford filed a motion for leave to file an amended complaint.
Bradford’s motion provided that the proposed amended “complaint maintains
the counts and allegations against the same defendants from the original
complaint,   but   accounts   for    the   significant   factual   and   procedural
developments that have occurred since the original complaint was filed.” The
district court granted Bradford’s motion for leave to file the amended
complaint.
      GHW answered the amended complaint, and Bradford moved for leave
to file a second amended complaint.            In the second amended complaint,
Bradford alleged that the documents that GHW produced during discovery
demonstrated “(1) fraudulent acts (2) perjury (3) concealing of documents
(4) scrambling of documents and (5) non-fulfillment on behalf of the GHW
Defendants.” Accordingly, Bradford sought leave to amend her complaint to
include these five claims. The district court opined that “[t]hese allegations
center around the documents that the GHW Defendants produced in response
to Bradford’s discovery requests, and do not fundamentally alter the nature of
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the action already filed against Defendants.”      The court found that these
additional claims were not separate from the claims set forth in her original
and amended complaints. Instead, the court ruled that these “claims” simply
clarified factual allegations with respect to her malpractice claim that GHW
failed to produce all relevant documents. Viewed in that light, the court found
the proposed second amended complaint “to be more akin to a more definite
statement of how [GHW] may have breached their fiduciary duties or acted
grossly negligent, versus entirely new claims of relief.” The court granted the
motion to amend in part and denied it in part.
      More specifically, the court denied the motion for leave to file the second
amended complaint with respect to fraud, finding that Bradford had failed to
plead with specificity or particularity which of the allegations properly
constituted fraud. The court also denied leave to amend the complaint with
respect to perjury because Bradford had not set forth factual allegations
specifying how GHW committed perjury. The court granted the motion to
amend with respect to “concealing of documents, non-fulfillment on behalf of
GHW Defendants, refusal to file an important opposition document [and]
scrambling documents.”
      GHW filed a motion for summary judgment, and the district court
granted summary judgment.         Subsequently, Bradford filed a Rule 60(b)
motion, alleging newly discovered evidence and fraud.         The district court
denied the motion.
      Bradford appealed only the denial of her Rule 60(b) motion. On appeal,
we held that the district court had not abused its discretion in denying the
motion. Bradford v. The Law Firm of Gauthier, Houghtaling & Williams,
L.L.P. et al, 633 F. App’x 276 (5th Cir. 2016). We stated that Bradford failed
to show that she had exercised due diligence in light of the fact that the “‘newly
discovered evidence’ consists of documents and emails that were in the
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possession of Marco Chiari, Bradford’s Italian counsel (and GHW’s former co-
counsel) in the Italian civil suit.” Id. at 277. Moreover, we pointed out that
“the majority of the ‘newly discovered evidence’ involved emails sent and
received by Chiari that were not in GHW’s possession, custody, or control.” Id.
at n.4.
         Two months later on April 22, 2016, Bradford, proceeding pro se, once
again filed suit in district court against GHW. 1 Her complaint alleged fraud,
perjury, concealing evidence and violation of the pretrial notice with respect to
the prior lawsuit between the instant parties. Bradford sought $30,035,000 in
damages.
         Bradford filed a motion to recuse the district judge. Bradford asserted
that Judge Milazzo “has personal knowledge of the facts pertaining to
Bradford’s [prior] Civil Action No. 13-2407.” The district court denied the
recusal motion, stating that Bradford’s assertion was not a basis for recusal
pursuant to 28 U.S.C. § 455.
         Subsequently, on August 16, GHW filed a motion to dismiss for failure
to state a claim, arguing that Bradford’s claims were barred by the doctrine of
res judicata. Bradford filed a motion in opposition, arguing that the cause of
action in the prior litigation was legal malpractice, which differs from the fraud
and perjury claims alleged in the instant lawsuit. On January 10, 2017, the
district court granted the motion to dismiss, ruling that res judicata barred the
claims because the claims brought in the second suit were or could have been
advanced in support of the first suit. Bradford thereafter filed a notice of
appeal.




1   Unlike the first suit, this complaint did not name Earl Perry as a defendant.
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       II.     STANDARD OF REVIEW FOR RULE 12(b)(6)
       We review de novo a district court’s grant or denial of a Rule 12(b)(6)
motion, “accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th
Cir. 2007). However, we do not hold pro se complaints to the same standards
as formal pleadings filed by attorneys. Calhoun v. Hargrove, 312 F.3d 730, 734
(5th Cir. 2002).
       III.    ANALYSIS
               A. Raising Res Judicata in a Rule 12(b) motion
       Bradford contends that GHW should not have argued res judicata as a
basis for dismissal in a Rule 12(b) motion to dismiss.                    Instead, Bradford
contends that GHW should have pleaded it as an affirmative defense.
       Bradford is correct that the affirmative defense of res judicata is not
expressly listed as a defense that may be asserted in a motion pursuant to Rule
12(b). See Rule 12(b). Instead, res judicata is listed as an affirmative defense
in Federal Rule of Civil Procedure Rule 8(c). This Court has opined that
according to Rule 8(c), a defendant should plead res judicata in the answer to
the complaint. Lafreniere Park Found. v. Broussard, 221 F.3d 804, 808 (5th
Cir. 2000). 2 Nonetheless, we explained that a technical failure to strictly
comply with Rule 8(c) does not forfeit the affirmative defense of res judicata
when it is raised before the district court “in a manner that does not result in
unfair surprise.” Id. (internal quotation marks and citation omitted). Here,
instead of filing an answer to the complaint, GHW filed the instant Rule
12(b)(6) motion to dismiss on August 16, 2016. Bradford filed a memorandum


2But see Larter & Sons v. Dinkler Hotels Co., 199 F.2d 854, 855 (5th Cir. 1952) (“With respect
to a specific affirmative defense such as res judicata, the rule seems to be that if the facts are
admitted or are not controverted or are conclusively established so that nothing further can
be developed by a trial of the issue, the matter may be disposed of upon a motion to
dismiss[.]”).
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in opposition to the motion to dismiss on August 29.          Her memorandum
contained much of the same arguments opposing the application of the doctrine
of res judicata that are contained in her appellate brief. GHW filed a reply to
Bradford’s opposition on September 6. On September 29, Bradford filed a
motion for leave to file the declarations of her attorneys in Italy, and the
district court granted the motion. On January 10, 2017, the district court
granted GHW’s motion to dismiss. Under these circumstances, because the
affirmative defense was raised “at a pragmatically sufficient time, and
[Bradford] was not prejudiced in [her] ability to respond,” the defense of res
judicata was not forfeited for any failure to strictly comply with Rule 8(c).   Id.
(internal quotation marks and citation omitted).
            B. Elements of Res Judicata
      Bradford contends that the district court erred in ruling that the instant
lawsuit was barred by the doctrine of res judicata. “The res judicata effect of
a prior judgment is a question of law that this court reviews de novo.” Test
Masters Educ. Servs. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005).
      “When a federal court sitting in diversity is considering the collateral
estoppel effect of a prior federal judgment, this Circuit applies federal common
law.” Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 583 F.3d 348, 353 (5th Cir.
2009) (internal quotation marks and citation omitted). The four elements of
res judicata are: (1) identical parties; (2) the judgment in the prior suit was
rendered by a court of competent jurisdiction; (3) there was a final judgment
on the merits in the prior suit; and (4) the same claim or cause of action was
involved in both suits. Test Masters, 428 F.3d at 571.
      Here, Bradford’s brief only challenges the fourth element. This Court
uses a “transactional test to determine whether two claims involve the same
cause of action, under which the critical question is not the relief requested or
the theory asserted but whether the plaintiff bases the two actions on the same
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nucleus of operative facts.” N.Y. Life Ins. Co. v. Gillispie, 203 F.3d 384, 387
(5th Cir. 2000) (internal quotation marks and citation omitted). Bradford has
argued that res judicata is not applicable because the cause of action in the
prior litigation was legal malpractice, which differs from the fraud and perjury
claims alleged in the instant lawsuit. However, as set forth above, the question
is not whether the same theory is asserted in the two actions. Instead, we must
determine whether Bradford bases the two actions on the same nucleus of
operative facts.
      In the prior federal lawsuit, Bradford filed a motion for leave to file a
second amended complaint, raising allegations of, among other things, fraud,
perjury, and concealing documents.           The district court found that these
allegations were not separate from the claims in her original and amended
complaints. The court ruled that these allegations simply clarified the factual
allegations with respect to her malpractice claim. Thus, the court viewed the
proposed second amended complaint to be a more definite statement of how
GHW committed malpractice as opposed to new claims for relief. We agree
with the district court’s conclusion that those “allegations center around the
documents that the GHW Defendants produced in response to Bradford’s
discovery requests, and do not fundamentally alter the nature of the action
already filed against [GHW].”
      The allegations contained in the proposed second amended complaint in
the prior suit are essentially the same as the allegations raised in the
complaint in the underlying lawsuit. Thus, we are convinced that Bradford
based the two lawsuits on the same nucleus of operative facts. Bradford has
not shown that the district court erred in holding that the four elements of the
res judicata test were satisfied.
      Nonetheless, throughout her brief, Bradford complains that the evidence
attached to her Rule 60(b) motion was never adjudicated on the merits. E.g.,
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Blue brief at p.7. It appears that Bradford is arguing that her claims of fraud
and perjury were not fully litigated because the district court denied her leave
to amend the complaint by adding those claims. However, this Court has
previously affirmed the district court’s denial of her Rule 60(b) motion, and
Bradford did not appeal the underlying judgment. Moreover, “it is black-letter
law that res judicata . . . bars all claims that were or could have been advanced
in support of the cause of action on the occasion of its former adjudication.”
Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 560 (5th Cir. 1983) (emphasis
in original). Because the claims all rise out of the same nucleus of operative
facts, any claims that Bradford alleges were not “fully litigated” could have
been properly raised in the first cause of action. Accordingly, the district court
did not err in ruling that the instant claims were barred by res judicata.
      IV.   CONCLUSION
      For the above reasons, the district court’s judgment is AFFIRMED.




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