     Case: 15-40615      Document: 00513259071         Page: 1    Date Filed: 11/04/2015




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

                                                                                  FILED
                                                                             November 4, 2015
                                    No. 15-40615
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


AL WININGER,

               Plaintiff - Appellant

v.

BANK OF AMERICA, N.A.; SELECT PORTFOLIO SERVICING,
INCORPORATED,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                        U.S.D.C. No. 4:14-cv-00556-ALM


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Al Wininger (“Wininger”) appeals from judgments entered by the district
court, Judge Amos L. Mazzant presiding, which granted both Bank of America,
N.A.’s and Select Portfolio Servicing, Inc.’s motions to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure and denied Wininger’s motion
for leave to file a second amended complaint. After a thorough review of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-40615    Document: 00513259071     Page: 2   Date Filed: 11/04/2015



                                 No. 15-40615
record, briefs on appeal, and the rulings of the district court, we conclude that
the judgment of the district court should be affirmed. The district court
properly granted the dismissals due to Wininger’s failure to allege facts that
would make the claims plausible. Additionally, the district court correctly held
that Wininger’s claims against Select Portfolio Servicing were barred by res
judicata. See United States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007).
The district court also did not abuse its discretion in denying Wininger’s motion
for leave to file a second amended complaint. Among other factors, Wininger
had sufficient prior opportunities to amend or supplement the facts alleged in
his complaint and a second amended complaint would have been futile. See
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). Therefore, we affirm
the decisions of the district court to dismiss Wininger’s claims with prejudice
and deny his motion for leave to file a second amended complaint.
      AFFIRMED.




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