     Case: 19-20304      Document: 00515332279         Page: 1    Date Filed: 03/04/2020




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

                                    No. 19-20304
                                                                             Fifth Circuit

                                                                           FILED
                                  Summary Calendar                     March 4, 2020
                                                                      Lyle W. Cayce
KIANTE BUTLER,                                                             Clerk

              Plaintiff - Appellant

v.

ENDEAVOR AIR, INCORPORATED; JENNIFER LOPEZ; GLORIA LOPEZ;
SHANTEL PIERCE,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-3711


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Kiante Butler sued Endeavor Air, Inc. for breach of contract, promissory
estoppel, negligence, and gross negligence. He also sued Defendants Jennifer
Lopez, Gloria Lopez, 1 and Shantel Pierce for civil conspiracy to commit fraud.
The district court granted summary judgment for Endeavor on res judicata


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1  The parties refer to Gloria Lopez as “Gloria Jimenez,” so we follow their lead and
refer to her as Jimenez from this point on.
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grounds because Butler had already brought the same claims unsuccessfully
against Delta Air Lines, Inc. The court entered a default judgment against
Lopez and Pierce but dismissed claims against Jimenez. Butler then
unsuccessfully moved for the alteration or amendment of the court’s judgment.
After a damages hearing on the claims against Lopez and Pierce, the district
court entered a take-nothing judgment. Butler timely appealed. We AFFIRM.
                                               I.
      In August 2014, A.B., Kiante Butler’s daughter, flew as an
unaccompanied minor on Delta Flight 3329 from Cincinnati to Houston, to visit
family. The flight was operated by Endeavor Air, a wholly-owned subsidiary of
Delta. Butler alleges that he instructed Delta to only release A.B. into the
custody of Shantel Pierce, his cousin. But when A.B. arrived in Houston,
Jimenez (A.B.’s grandmother) and Lopez (A.B.’s mother) picked her up instead.
Butler alleged that he had to go personally to Texas to try and regain custody
over his daughter.
      Butler sued Delta 2 in Texas state court. He brought claims of breach of
contract, promissory estoppel, negligence, and punitive damages. Delta
removed the case to federal court. (We will call this the “Delta Case.”) Butler
then filed this case, naming both Delta and Endeavor as a defendant along
with Jimenez, Lopez, Pierce, and the same two Delta employees. He brought
claims against Delta (the claims were similar to his claims in the Delta Case)
but did not make allegations against Endeavor. Butler then filed an amended
petition, omitting Delta as a defendant and inserting Endeavor’s name in place
of Delta’s. 3 (We will call this the “Endeavor Case.”)




      2   Butler also sued two Delta employees, who were later dismissed by the district court.
      3   The amended complaint also dropped the two Delta employees as defendants.
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      Eventually the district court in the Delta Case granted summary
judgment to Delta on the negligence and punitive damages claims. Delta then
filed stipulations in both cases, noting that, while Delta and Endeavor both
denied any liability, “as between Delta and Endeavor, Delta will accept
liability, if any, arising from the claims brought by Plaintiff” in both cases.
After partial summary judgment in the Delta Case was granted, the district
court in this case stayed proceedings because it concluded that there was a
“high probability that resolution of the [Delta] Case will resolve all issues in
both cases.”
      Ultimately, a jury in the Delta Case found for Delta on Butler’s breach
of contract and promissory estoppel claims. The district court entered final
judgment, under which Butler took nothing from Delta and was ordered to pay
costs. Butler appealed, and at his request, the district court in the Endeavor
Case lifted the stay. This court dismissed Butler’s appeal in the Delta Case for
want of prosecution.
      Endeavor sought summary judgment in the Endeavor Case, and Butler
moved for judgment on the pleadings and sought a default judgment against
Lopez and Pierce. The district court eventually granted summary judgment to
Endeavor on all of Butler’s claims. The court held that all of Butler’s claims
against Endeavor were barred by res judicata. The court also entered a default
judgment against Lopez and Pierce and set a hearing to allow Butler to prove
damages. Finally, the court noted that Butler had not shown that he intended
to prosecute his claim against Jimenez, and that if he failed to show good cause
otherwise, the court would dismiss the claims against her. Butler never tried
to show good cause.
      Following the damages hearing at which Butler did not appear and
offered only a single declaration as evidence, the district court entered a final
judgment ruling that Butler would take nothing from Lopez or Pierce, and that
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                                  No. 19-20304
his claims against Jimenez were dismissed for lack of prosecution. Butler then
moved for default judgment as a matter of law, and in the alternative, for a
new trial. The district court denied the motion. Butler timely appealed.
                                        II.
      Since Butler moved for a new trial after summary judgment rather than
after a trial, we review the motion as one under Rule 59(e) to alter or amend
the judgment. Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 748 n.9
(5th Cir. 2006). We review the denial of such a motion for abuse of discretion.
Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 184 (5th Cir. 2018). The district
court’s decision “need only be reasonable” to survive that review. Matter of Life
Partners Holdings, Inc., 926 F.3d 103, 128 (5th Cir. 2019).
      We review summary judgment de novo and apply the same standards as
the district court. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017).
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “All evidence is viewed in the light
most favorable to the nonmoving party and all reasonable inferences are drawn
in that party’s favor.” Austin, 864 F.3d at 328 (citing Crawford v. Formost
Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000)).
      “We review a dismissal for want of prosecution or failure to obey a court
order for abuse of discretion.” Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir.
1998).
      Finally, we review the denial of a motion to continue for abuse of
discretion. HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d 544, 549–
50 (5th Cir. 2000).




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                                             III.
       We first address the summary judgment decision. We agree with the
district court that summary judgment was appropriate because Butler’s claims
against Endeavor are barred by res judicata. 4
       Res judicata “precludes the parties or their privies from relitigating
issues that were or could have been raised” in a prior proceeding that was
decided on the merits. Allen v. McCurry, 449 U.S. 90, 94 (1980). For res judicata
to apply, four elements must be shown: “(1) the parties are identical or in
privity; (2) the judgment in the prior action was rendered by a court of
competent jurisdiction; (3) the prior action was concluded to a final judgment
on the merits; and (4) the same claim or cause of action was involved in both
suits.” Swate v. Hartwell, 99 F.3d 1282, 1286 (5th Cir. 1996).
       Delta and Endeavor were in privity for purposes of res judicata. 5 “A non-
party defendant can assert res judicata so long as it is in ‘privity’ with the
named defendant.” Russell v. SunAmerica Sec., Inc., 962 F.2d 1169, 1173 (5th
Cir. 1992). Privity can exist where—among other things—the non-party’s
interests were adequately represented by a party to the original suit. Meza v.
Gen. Battery Corp., 908 F.2d 1262, 1266 (5th Cir. 1990). Adequate
representation may occur where “a party to the original suit is ‘so closely
aligned to the non-party’s interests as to be his virtual representative.’” Id. at
1267 (quoting Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.
1975), appeal dismissed 423 U.S. 908 (1976)).




       We assume, for purposes of this decision, that Butler adequately briefed these
       4

arguments.
       5As Butler challenges only the first and fourth prongs of the res judicata analysis, we
address only those issues here.
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                                  No. 19-20304
      Here, Delta was so closely aligned to Endeavor’s interests in the Delta
Case that it acted as Endeavor’s virtual representative. First, Endeavor was a
wholly owned subsidiary of Delta. Second, the claims against Delta in the first
case and Endeavor in this case arise out of the same set of facts: A.B.’s
unaccompanied flight on Delta flight 3329, and the decision by Delta
employees to release A.B. to her grandmother, Jimenez, rather than to Pierce.
The claims against Delta and Endeavor are virtually identical: breach of
contract, promissory estoppel, and various forms of negligence. Butler tried to
add Endeavor as a defendant in the first case, and only when that attempt was
denied (because his request was too late) did Butler file this second action. That
Delta and Endeavor’s interests were thus identical is underscored by the fact
that Delta stipulated in both cases that, were liability against Endeavor to be
found, Delta would accept the liability. On these facts, we conclude that Delta
virtually represented Endeavor’s interests in the Delta Case, thus satisfying
the first factor in the res judicata analysis.
      Second, the same claims were involved in the Delta Case and the
Endeavor Case. To determine whether the same claims were involved in a prior
lawsuit, we apply the transactional test, under which “the preclusive effect of
a prior judgment extends to all rights the original plaintiff had with respect to
all or any part of the transaction, or series of connected transactions, out of
which the original case arose.” In re Paige, 610 F.3d 865, 872 (5th Cir. 2010)
(cleaned up). “The critical issue under this determination is whether the two
actions under consideration are based on the same nucleus of operative facts.”
Id. (quoting In re Intelogic Trace, Inc., 200 F.3d 382, 386 (5th Cir. 2000)).
      Here, as shown by Butler’s own factual allegations in his complaints, a
single nucleus of operative facts forms the basis for Butler’s claims against
Delta in the Delta Case and Endeavor in this case. Butler sued both companies
because he believes they breached a contract with him and injured him by
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                                       No. 19-20304
releasing A.B. into the custody of the wrong person. He brought claims of
breach of contract, promissory estoppel, and negligence against both
companies. The operative complaints in both cases reveal practically identical
claims against Delta and Endeavor based on the same set of facts. 6 Butler
himself concedes that the two suits are “based upon the same facts.” Butler’s
asserted rights in the first case against Delta are identical to those he asserts
in the second case against Endeavor. See Petro-Hunt, L.L.C. v. United States,
365 F.3d 385, 395–96 (5th Cir. 2004) (preclusive effect of prior judgment
“extends to all rights the original plaintiff had with respect to all or any part
of the transaction, or series of connected transactions, out of which the original
action arose.”) (cleaned up).
       For these reasons, we hold that the district court correctly concluded that
res judicata barred Butler’s claims against Endeavor in this suit. Butler’s
claims were therefore appropriately disposed of at summary judgment.
                                             IV.
       We briefly address Butler’s other complaints. He challenges the district
court’s decision to deny his motion for a new trial, its decision to dismiss the
claims against Jimenez for want of prosecution, and its decision to deny his
motion for a continuance during the damages hearing.
       The district court did not abuse its discretion in denying Butler’s motion
for a new trial. Motions under Rule 59(e) are “not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have been offered
or raised before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d



       6 Butler argues that his gross negligence claim against Endeavor is different from the
general negligence claim against Delta. But functionally, the two claims are the same. The
same acts or omissions constitute the basis of the negligence claim, and the general theory of
the claims is identical—Delta and Endeavor breached their duty to Butler to ensure the safe
passage of A.B. as an unaccompanied minor by releasing her into the custody of someone
other than Pierce, the designated pickup person.
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473, 478–79 (5th Cir. 2004). Butler’s motion for a new trial merely rehashed
evidence and arguments the district court had already rejected. The court thus
did not abuse its discretion by denying the motion.
      Next, we find no abuse of discretion in the court’s denial of Butler’s
motion to continue. Trial courts have “exceedingly wide” authority regarding
“scheduling decision[s], such as whether a continuance should be granted.” HC
Gun & Knife Shows, 201 F.3d at 549. “We will not ‘substitute our judgment
concerning the necessity of a continuance for that of the district court’” unless
the complaining party shows prejudice. Id. at 550 (quoting Fontenot v. Upjohn
Co., 780 F.2d 1190, 1193 (5th Cir. 1986)).
      Butler was not present at the hearing on damages. Lopez and Pierce, the
defendants against whom default judgment had been entered, did attend, and
argued against any damages. Butler’s counsel confessed to being unprepared
to address any of their arguments. When counsel for Butler moved for a
continuance of the hearing, the district court declined, noting that the case had
been pending for over two years, and that since all other issues in the case were
already resolved, postponing a decision on damages was inappropriate.
      On appeal, Butler makes no persuasive arguments that the district
court’s decision amounts to an abuse of discretion. Instead, he simply asserts
that the court’s decision to not continue the hearing was an abuse of discretion.
He cites no legal authority for this proposition. He also asserts that he was
prejudiced by not being able to respond to statements by Lopez and Pierce at
the hearing. We are unpersuaded that he was prejudiced for two reasons. First,
Butler’s predicament was of his own making—he chose not to attend the
hearing. Second, the district court’s ultimate decision at the hearing was not
based on argument made by Lopez or Pierce. Rather, the court concluded that
the evidence Butler presented—a brief declaration, without any other
supporting evidence—was insufficient to establish his damages. In other
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words, the outcome of the hearing was unfavorable because Butler’s evidence
was insufficient, not because the continuance was denied. For that reason, we
cannot say Butler was prejudiced by the court’s denial of his last-minute
motion for a continuance. We thus find no abuse of discretion.
      Finally, we hold that Butler has waived the argument that the district
court abused its discretion by dismissing Jimenez because he fails to
adequately brief the issue. His opening brief contains only a few sentences on
the subject and fails to cite legal authority, and his reply brief is similarly
lacking. We therefore deem the argument waived. United States v. Reagan, 596
F.3d 251, 254 (5th Cir. 2010).
      AFFIRMED




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