                         Revised March 8, 2000

              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                     ________________________

                           No. 98-60654
                     ________________________

NEW YORK LIFE INSURANCE COMPANY,
                                                 Plaintiff-Appellant,

                                versus

SHEREE GILLISPIE,
                                                 Defendant-Appellee.

         _______________________________________________

           Appeal from the United States District Court
             for the Northern District of Mississippi
         _______________________________________________
                         February 22, 2000

Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

WIENER, Circuit Judge:

     In this insurance coverage dispute, Plaintiff-Appellant New

York Life Insurance Company (“New York Life”) asks us to reverse

the district court’s dismissal of its motion for a preliminary

injunction enjoining on grounds of res judicata and collateral

estoppel a lawsuit brought against it in state court by Defendant-

Appellee Sheree Gillispie.      The district court ruled that the

issuance of such an injunction is prohibited by the Anti-Injunction

Act, 28 U.S.C. § 2283, which generally denies the federal courts

the power to enjoin state court proceedings.          New York Life

contends that the district court erred in so ruling, arguing that
the instant case falls within the relitigation exception to the

Anti-Injunction Act.   Agreeing with New York Life, we reverse and
remand with    instructions       to   the   district   court   to   enter    the

injunction.


                                     I
                           Facts and Proceedings

       Ronald Gillispie died in 1993. His wife, Sheree Gillispie, is

the named beneficiary of a life insurance policy issued to Mr.

Gillispie by New York Life Insurance Company.                Shortly after Mr.

Gillispie’s death, Mrs. Gillispie submitted a claim to New York

Life alleging entitlement to the proceeds of the policy.              New York

Life denied the claim, contending that Mr. Gillispie’s death was

the result of a suicide.       Suicide is unambiguously excluded from

coverage under the policy.

       In 1995, Mrs. Gillispie filed a complaint against New York

Life in the United States District Court for the Northern District

of Mississippi, alleging breach of contract and bad faith denial of

benefits.     New   York   Life    moved     for   summary   judgment.       Mrs.

Gillispie’s attorney did not respond to the motion. In early 1996,

the court granted New York Life’s motion for summary judgment,

explicitly finding that “[a]ll evidence points to the decedent’s

death as a suicide.”

       Mrs. Gillispie subsequently hired new counsel to represent

her.    Her new attorney succeeded in convincing the Chancery Court

of Tippah County, Mississippi to order the issuance of an amended

death certificate declaring the cause of Mr. Gillispie’s death to

be accidental.      In 1997, Mrs. Gillispie filed another complaint
against New York Life, this time in the Circuit Court of Tippah

County, Mississippi. The complaint stated the same basic causes of

action as had the 1995 federal suit, alleging breach of contract

and bad faith denial of benefits.

     New York Life removed the suit to federal court, but it was

subsequently remanded for lack of diversity jurisdiction. New York

Life then brought the instant action in federal district court,

seeking to enjoin the state court proceedings on grounds of res

judicada and collateral estoppel. The district court dismissed New

York Life’s action with prejudice, finding that (1) it was barred

by the Anti-Injunction Act and (2) the relitigation exception to

the Anti-Injunction Act was inapplicable.    This appeal followed.


                                  II
                               Analysis

A.   Standard of Review

     We review the denial of a preliminary injunction for abuse of

discretion.1   Conclusions of law made with respect to the denial of

a preliminary injunction, however, are reviewed de novo.2   The only

issue before the Court is the proper scope and application of the

relitigation exception to the Anti-Injunction Act.     Our review is

therefore de novo.


B.   The Relitigation Exception to the Anti-Injunction Act


     1
         Hoover v. Morales, 146 F.3d 304, 307 (5th Cir. 1998).
     2
       Peaches Entertainment Corp. v. Entertainment Repertoire
Assocs., Inc., 62 F.3d 690, 693 (5th Cir. 1995).
     Although the Anti-Injunction Act generally denies federal

courts the power to “grant an injunction to stay proceedings in a

State court,”3 it provides that a federal court may enjoin state

court proceedings “to protect or effectuate its judgments.”4      This

exception “was designed to permit a federal court to prevent state

litigation of an issue that previously was presented to and decided

by the federal court.          It is founded in the well-recognized

concepts of res judicata and collateral estoppel.”5         We apply a

four-part test to determine whether the exception is applicable:

               First, the parties in a later action must be
               identical to (or at least in privity with) the
               parties in a prior action.        Second, the
               judgment in the prior action must have been
               rendered by a court of competent jurisdiction.
               Third, the prior action must have concluded
               with a final judgment on the merits. Fourth,
               the same claim or cause of action must be
               involved in both suits.6

The only issue before us today is whether Mrs. Gillispie’s 1997

state suit presents “the same claim or cause of action” as did her

1995 federal suit.7

     The parties have manifestly different views concerning the

issues presented by Mrs. Gillispie’s two lawsuits.       New York Life

contends that the two suits present the same issue:      Whether Ronald


     3
         28 U.S.C. § 2283
     4
         Id.
     5
         Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147 (1988).
     6
         United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir.
1994).
     7
         Id.
Gillespie died as the result of a suicide or as the result of an

accident.   Mrs. Gillispie, on the other hand, contends that the

first lawsuit   merely    determined    whether    New   York   Life    had a

contractual duty to pay based on then-available evidence, whereas

the purpose of the second lawsuit is to have the courts determine

whether New York Life has a contractual duty to pay based on now-

available   evidence,    central   to   which     is   the   amended     death

certificate.

     The district court erred in adopting Mrs. Gillispie’s view of

the case.   We use 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 nucleus of

operative facts.”8      In evaluating the res judicata effect of a

prior claim on a subsequent one, the transactional test does not

inquire whether the same evidence has been presented in support of

the two claims, but rather asks whether the same key facts are at

issue in both of them.     In both of Mrs. Gillispie’s claims, there

is only one key fact that is relevant:          Whether Ronald Gillispie

died as the result of a suicide or as the result of an accident.

The 1995 federal suit resulted in a summary judgment determination

that “[a]ll evidence points to the decedent’s death as a suicide.”

Mrs. Gillispie can only win her 1997 state suit by convincing the

state court that the 1995 federal judgment was in error.               This is

     8
        Agrilectric Power Partners v. General Elec. Co., 20 F.3d
663, 665 (5th Cir. 1994).
precisely the type of claim that is barred by the doctrine of res

judicata, and that in turn is precisely the type of situation that

the relitigation exception to the Anti-Injunction Act is intended

to cover.

     It is true, as Mrs. Gillispie points out, that the federal

court did not determine in 1995 whether New York Life breached its

contract    by     refusing   to   pay   once     the   court-amended        death

certificate showing death to be accidental was submitted.               Indeed,

the court could not have made such a determination because the

amended    death    certificate    did   not    exist   in   1995.     But    Mrs.

Gillispie is wrong in her contention that the federal judgment in

1995 merely determined that New York Life did not owe an obligation

to Mrs. Gillispie on the basis of then-existing evidence, leaving

open to question whether New York Life might in the future come to

owe an obligation to Mrs. Gillispie should new evidence emerge.

New York Life’s contractual obligation to Mrs. Gillispie is not a

transient thing, dependent on kaleidoscopic evidence and subject to

relitigation each time a new or revised fact emerges.                Rather, New

York Life’s contractual obligation is a fixed and determinate

thing, and is dependent only on the actual events surrounding

Ronald Gillispie’s death.

     The 1995 federal judgment determined that Ronald Gillispie’s

death was the result of a suicide.        If the federal court’s decision

were based on faulty evidence, Mrs. Gillispie’s proper courseof

action was to invoke Rule 60 of the Federal Rules of Civil
Procedure, which allows for the setting aside of a judgment on the

basis of newly discovered evidence.   Merely filing a new claim in

a different forum offends the doctrine of res judicata.

     As this case clearly falls within the boundaries of the

relitigation exception to the Anti-Injunction Act, we reverse the

judgment of the district court and remand the case to the district

court (1) for issuance of an injunction enjoining Mrs. Gillispie

from further prosecuting her state court action against New York

Life and (2) for any further proceedings that are necessary,

consistent with this opinion.



REVERSED; REMANDED with instructions.
