                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                         REVISED JUNE 27, 2003                   June 25, 2003

                   UNITED STATES COURT OF APPEALS           Charles R. Fulbruge III
                                                                    Clerk
                         For the Fifth Circuit



                             No. 02-40564



                             FRANK BROOKS,

                                                 Plaintiff - Appellant,


                                VERSUS


                     RAYMOND DUGAT COMPANY L C

                                                 Defendant - Appellee.




            Appeal from the United States District Court
         For the Southern District of Texas, Corpus Christi


Before DeMOSS and STEWART, Circuit Judges, and LITTLE,1 District
Judge.

DeMOSS, Circuit Judge.

     On May 1, 2001, Appellant Frank Brooks (“Brooks”) brought suit

against Appellee Raymond Dugat Company L C, (“Dugat”), claiming a

cause of action for maintenance and cure under the General Maritime

Law for a slip and fall he suffered on the M/V Amanda on June 2,



     1
       District Judge of the Western District of Louisiana,
sitting by designation.
1998.    Brooks had filed a similar suit, including a claim for

maintenance and cure, against Dugat in May of 2000 but voluntarily

moved to dismiss all of his claims with prejudice.             The operative

facts and maintenance and cure causes of action are the same in

both suits.

      On January 15, 2002, Dugat filed a Motion for Summary Judgment

in the instant suit.      Dugat claimed that Brooks’s instant suit was

barred by claim and issue preclusion or alternatively that Dugat

was not the employer of Brooks when he was injured.           Brooks opposed

the   motion   contending    that   claim   and     issue   preclusion     were

inapplicable and that Dugat was his employer when he was injured.

      On March 4, 2002, the United States District Court for the

Southern District of Texas granted Dugat’s Motion for Summary

Judgment   and    found   that   Brooks’s   claim    was    barred   by   claim

preclusion.      The court did not address issue preclusion or whether

Dugat was Brooks’s employer at the time of the injury. Brooks now

appeals the granting of summary judgment.

      We review a district court’s grant of summary judgment de

novo.   Young v. Equifax Credit Info. Servs. Inc., 294 F.3d 631, 635

(5th Cir. 2002).       Summary judgment is appropriate only “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”               Fed. R. Civ. P.


                                     2
56(c).

      For claim preclusion to apply, the following four requirements

must be met: (1) the parties must be identical in both suits; (2)

the prior judgment must have been rendered by a court of competent

jurisdiction; (3) there must be a final judgment on the merits; and

(4) the same cause of action must be involved in both suits.             U.S.

v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994) (citation omitted).

If these four requirements are met, a party cannot raise a claim in

a later proceeding that was, or could have been, raised in the

prior proceeding.    Id.

      All the requirements are met in the instant suit.          The first

and   second   requirements   are   not   disputed   –   the   parties   are

identical and the court that rendered the prior judgment, which

coincidentally was the same district court that decided the instant

summary judgment motion, was a court of competent jurisdiction.

      The third requirement, that there be a final judgment on the

merits in the prior proceeding, is also met.             A dismissal with

prejudice is a final judgment on the merits.         Schwarz v. Folloder,

767 F.2d 125, 129-130 (5th Cir. 1985).

      The fourth requirement, that the same cause of action is

involved in both suits, is also met.       To determine whether the two

suits involve the same cause of action, this Court applies the

transactional test and asks whether the two suits involve the same

nucleus of operative facts.     Agrilectric Power Partners, Ltd., v.


                                    3
General Elec. Co., 20 F.3d 663, 665 (5th Cir. 1994).                       Both the

instant suit and prior suit involve the exact same facts.

       Even though these four requirements are met, the present

appeal    focuses    on    the    application      of   claim   preclusion       to   a

maintenance and cure claim.            The fact that a maintenance and cure

claim is involved, however, does not affect the instant suit.

    The right to maintenance and cure is ongoing and serial suits

may be brought to collect maintenance and cure payments as they

come due.   Pelotto v. L & N Towing Co., 604 F.2d 396, 398 (5th Cir.

1979).    A seaman cannot be denied the right to sue for maintenance

and cure before such a claim has accrued.               Cooper v. Diamond M Co.,

799 F.2d 176, 179 (5th Cir. 1986).               Nonetheless, claim preclusion

still    applies    to    admiralty     proceedings,       including     claims   for

maintenance and cure.           Pelotto, 604 F.2d at 401.

       In Pelotto v. L & N Towing Co., the plaintiff brought an

admiralty    action       but    did   not   initially     include   a   claim    for

maintenance and cure.           Id. at 398.      The plaintiff later asserted a

claim for maintenance and cure, but that issue was never addressed

because the defendants agreed to pay maintenance and cure claims

incurred by the plaintiff for a certain period of time.                      Id. at

399.     The plaintiff did pursue his other claims against the

defendants and ultimately prevailed.                 Id.      When the defendants

stopped making maintenance and cure payments, the plaintiff then

brought a maintenance and cure claim.                   Id.    The district court


                                             4
granted summary judgment against the plaintiff on the grounds of

res judicata or claim preclusion.             Id. at 400.       This Court reversed

the district court and held that the plaintiff’s failure to claim

maintenance   and   cure    in     his    initial        suit   did   not   bar    the

plaintiff’s later action for maintenance and cure.                     Id. at 402.

This Court    explained     that    even      if   the    plaintiff    brought     his

maintenance and cure claim in the initial suit, there would still

be no bar to bringing the maintenance and cure claim in the later

suit because, and contrary to the instant suit, no determination

had ever been entered that the defendants were not required to pay

maintenance and cure in the first instance.                 Id. at 401-02.        This

Court, however, also stated that if the plaintiff had claimed

maintenance and cure in his initial suit and an “identifiable

finding” had been made fixing the maximum cure, res judicata or

claim preclusion would bar the plaintiff’s subsequent claim that

was outside of the fixed maximum cure.               Id. at 402 n.12.

     We agree with the district court’s determination in this suit

that the logical conclusion drawn from Fifth Circuit precedent is

that, if a finding has been made that the plaintiff is not due

maintenance   and   cure,     then       claim     preclusion      would    bar    all

subsequent claims for maintenance and cure.                     Brooks’s dismissal

with prejudice was tantamont to a judicial determination of his

non-entitlement to maintenance and cure arising out of his slip and

fall on June 2, 1998.        See Schwarz, 767 F.2d at 129-30.                  Thus,


                                          5
because a plaintiff must be entitled to maintenance and cure before

any      recovery          can   be   obtained,   the   district   court   correctly

dismissed Brooks’s second maintenance and cure suit.                        To hold

otherwise, would result in claim preclusion never applying to

maintenance and cure claims.                 Therefore, before any recovery for

maintenance and cure can be had, a plaintiff must be entitled to it

and in order to be entitled to maintenance and cure a plaintiff

cannot have previously asserted a maintenance and cure claim that

was dismissed with prejudice.               Accordingly, we affirm the district

court’s granting of summary judgment for the reasons articulated by

the district court.

AFFIRM




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