                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 29, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-30051
                         Summary Calendar



 MICHAEL D. DAVIS, individually and on behalf of his minor son,
                           JACOB DAVIS

                       Plaintiff-Appellant,

                               versus

                          TELEFLEX INC.,

                        Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                         CA No.1:03CV1919
                       --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges

PER CURIAM:*

     Plaintiff Michael D. Davis, individually and on behalf of

his minor son, Jacob Davis (“Davis”), appeal the grant of summary

judgment in favor of defendant Teleflex.    Because the district

court properly granted summary judgment for Teleflex, we affirm

the district court’s ruling.

                           I. Background

     On October 28, 2000, Davis and his son Jacob were passengers

on a boat manufactured by Skeeter Products, Inc. and operated by

     *
       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this opinion should not be published and is not precedent except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.
                           No. 04-10594
                                -2-

Jerome Self on the Red River in Rapides Parish, Louisiana.    As

Self began a right turn at about 50 m.p.h, he lost control of the

boat.   The boat made a sudden hard right turn and ejected Davis

and another passenger from the boat’s port side.    Davis grabbed

the boat’s handrail as he left the boat, causing his head to

strike the side and resulting in a spinal cord injury with

permanent paralysis at the C6-7 level.    Davis also sustained

serious injury to his left arm.

     In March of 2001 Davis originally filed suit against the

following defendants: (1) Yamaha Motor Corporation, U.S.A, as a

manufacturer of the outboard motor; (2) Skeeter Products, Inc.,

the manufacturer of the boat; (3) William Jerome and Diane Self;

(4) Progressive Security Insurance Company, the Selfs’ insurer;

and (5) Dawson Marine, the retailer of the boat and motor.    Davis

alleged negligence and strict products liability claims under

admiralty and general maritime law as well as under the Louisiana

Products Liability Act, LSA-R.S. 9:2800.51, et seq.    About five

weeks into the second trial (the first trial ended in a mistrial)

Davis and the defendants settled.   Davis’s negligence and strict

products liability claims were thereafter dismissed with

prejudice on October 6 and 22, 2003.

     On September 23, 2003, Davis filed this suit against the

defendants here, Teleflex and Teleflex Canada.    On October 28,

2003, Davis filed an almost identical suit, also against Telefex,

in a different judicial district and the suits were consolidated.
                              No. 04-10594
                                   -3-

Teleflex removed this case to the United States District Court

for the Western District of Louisiana on the basis of diversity

jurisdiction under 28 U.S.C. § 1332(a)(3).       Thereafter, Teleflex

filed a motion for summary judgment on the grounds that Davis is

precluded from bringing this suit because he should have sued

Teleflex in his first lawsuit that settled and was dismissed with

prejudice.    Teleflex argues, and the district court held, that

under Article 425 of the Louisiana Code of Civil Procedure all of

plaintiffs’ claims arising out of the same factual transaction or

occurrence must be asserted in the same suit.       See Westerman v.

State Farm Mut. Auto. Ins. Co., 834 So.2d 445, 448 (La. App. 1

Cir. 9/27/02).    Because Davis had already sued a number of other

parties for his injuries arising out of the same boating

accident, the district court granted summary judgment for

Teleflex.    We AFFIRM.

                              II. Analysis

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

novo, and employ the same standards employed by the district

court.   Abarca v. Metropolitan Transit Authority, 404 F.3d 98,

940 (5th Cir. 2005).      Summary judgment is proper if no genuine

issue of material fact exists and the moving party is entitled to

judgment as a matter of law.      FED. R. CIV. P. 56(c).

     Davis first argues that the district court erred when it

failed to apply the general maritime law in this case and favored

Article 425 over the general maritime law because Article 425 is
                           No. 04-10594
                                -4-

“inferior and subordinates to general maritime substantive law.”

Davis’s argument, however, overlooks the fact that the strict

liability principles of the general maritime law and Davis’s

right to bring this additional lawsuit are completely separate

and unrelated issues.   Article 425's preliminary requirement that

a litigant bring all of his causes of action arising out of the

same transaction or occurrence in one lawsuit is unrelated to

Davis’s contention that maritime products liability law adopts

the strict liability standard as set forth in the Restatement of

Torts.

     Second, Davis argues that Article 425 does not apply because

in the order settling his prior claim with the defendants named

in the first suit, Davis reserved his right to proceed against

“any and all other parties named or unnamed in this matter.”     He

relies on Louisiana Revised Statute 13:4232, which states that

there are exceptions to the general rule of res judicata such as

“when the judgement reserved the right of the plaintiff to bring

another action....”   As the comments to LSA-R.S. 13:4232 explain,

however, the exception is “not intended to apply in the case

where the plaintiff has simply failed to assert a right or claim

for damages through oversight or lack of preparation.”   Davis

gives no explanation for his delay in bringing suit against

Teleflex other than his lack of preparation in the first suit.

     Moreover, as the district court explained, the language

contained in the three separate orders of dismissal in the first
                             No. 04-10594
                                  -5-

suit referred only to Davis’s rights as to the other parties in

that particular suit.1   As the district court explained:

     Rather than reserve the right to sue a third party that
     somehow was related to this case but was never made a
     party to the settlement agreement or the suit, Davis was
     merely attempting to protect his rights to sue the prior
     defendants, Yamaha, Skeeter, Dawson, and Progressive, by
     being able to invoke La. R.S. 13:4232A(3) at a later
     date.


     Finally, Davis argues that the present action does not fall

under Article 425 because ti did not arise out of the same

transaction or occurrence as Davis’s previous suit.   Because both

causes of action arose out of the same boat accident, and is

therefore based on the same “nucleus of operative facts,” Davis’s

final argument also fails.    See Matter of Howe, 913 F.2d 1138

(5th Cir. 1990).

                              CONCLUSION

     The district court’s judgment granting summary judgment for

Teleflex is AFFIRMED.




     1
       Davis points to the language in the second order, dated
October 22, 2003, which dismissed his claims against Dawson, and
states that Davis reserves “his right to proceed against any and
all parties in this matter, named and unnamed.” As the district
court explained, this language meant that Davis reserved his
right to sue Dawson, as a named party, as well as the Selfs and
Progressive, as unnamed parties “in this matter,” not any
unidentified third parties who were not involved in that
litigation.
