                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14452         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JUNE 1, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                                 D.C. Docket No. 0:09-cv-61092-JIC

LENNON ANDERSON,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                               versus

VANGUARD CAR RENTAL USA INC.,

llllllllllllllllllllllllllllllllllllllll                             Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                            (June 1, 2011)

Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Pro se plaintiff-appellant Lennon Anderson appeals the district court’s grant

of summary judgment to his former employer, Vanguard Car Rental USA, Inc.,
(“Vanguard”), in his employment discrimination lawsuit filed under 42 U.S.C.

§ 1981. He also appeals the district court’s denial of his Fed.R.Civ.P. 59(e)

motion to alter judgment.

       In 2009, Anderson, a Black male, filed an employment discrimination action

against Vanguard, alleging racial discrimination, wrongful termination, and

retaliation under 42 U.S.C. § 1981. According to the complaint, Vanguard cut

Anderson’s hours, suspended him, and ultimately terminated him after Anderson

failed to meet the company’s production standards, which Anderson asserted were

race-based and discriminatory. Vanguard moved for summary judgment on the

ground that Anderson’s claims were barred by res judicata. Anderson had filed a

previous federal case against Vanguard, (“Anderson I”), which had raised claims

arising from the same set of operative facts and was dismissed with prejudice.1

       Anderson filed a motion to strike the summary judgment motion on the

grounds that Anderson I was not a final decision because he had petitioned for

cert. in Anderson I and he had a pending state court action against Vanguard.




       1
           In Anderson I, Anderson alleged that Vanguard deprived him of his Fifth and
Thirteenth Amendment rights under 42 U.S.C. § 1985(3) and conspired to deprive him of his
civil rights when it engaged in race-based discriminatory production quotas. The district court
dismissed the complaint with prejudice and this court affirmed. Anderson v. Vanguard Car
Rental USA, Inc., 304 Fed. Appx. 830 (11th Cir. 2008), cert. denied 130 S.Ct. 400 (2009).

                                                2
Anderson also filed a motion for sanctions against Vanguard’s attorney under

Federal Rule of Civil Procedure 11.

      The district court granted Vanguard’s summary judgment motion because

Anderson’s claims were barred by res judicata. The court also denied Anderson’s

motions to strike and for sanctions. Anderson filed a motion to alter or amend

judgment, disputing the res judicata determination. The court denied the motion

because Anderson’s motion to amend presented no new facts or argument. The

court noted that Anderson in effect argued that the district court in Anderson I

violated his Seventh Amendment rights, but that the court could not “go back and

undo what was done in Anderson I.” Anderson now appeals.

      On appeal, Anderson argues that “fraud [was] perpetrated upon the court”

by Judge Donald Graham, the district court judge in Anderson I, and by Judge

James Cohn, the district court judge in this case. Specifically, Anderson submits

that Judge Cohn perpetrated fraud and demonstrated partiality by ruling or making

statements in his orders in Vanguard’s favor, and should have recused himself.

On the merits, Anderson argues that the district court unfairly applied res judicata,

and thus, erred in granting summary judgment in favor of Vanguard. He also

argues that the court abused its discretion in denying his Rule 59(e) motion to alter




                                          3
judgment because it failed to address all of his arguments and granted summary

judgment while his motion to compel discovery was pending.

      I. Motion for Summary Judgment

      We review de novo a district court’s grant of summary judgment. Damon v.

Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1357 (11th Cir. 1999).

Summary judgment is appropriate where there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Id. at 1358.

Whether a claim is barred by res judicata is a legal determination that we also

review de novo. Kizzire v. Baptist Health System, Inc., 441 F.3d 1306, 1308 (11th

Cir. 2006).

      Res judicata bars a plaintiff from bringing a subsequent lawsuit when four

requirements are met: “(1) there is a final judgment on the merits; (2) the decision

was rendered by a court of competent jurisdiction; (3) the parties, or those in

privity with them, are identical in both suits; and (4) the same cause of action is

involved in both cases.” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th

Cir. 1999). In relation to the last element of the test, “if a case arises out of the

same nucleus of operative fact or is based upon the same factual predicate, as a

former action, the two cases are really the same ‘claim’ or ‘cause of action’ for

purposes of res judicata.” Id. at 1239.


                                            4
      In this case, all four elements of the res judicata test were met. Anderson

does not dispute that the court in Anderson I was a court of competent jurisdiction.

And the parties in Anderson I and the instant suit are identical. Anderson I was

dismissed with prejudice, thus rendering a final judgment on the merits. And the

two cases arise from the same “nucleus of operative facts;” that Anderson cited

two different statutes as the bases for his suits does not affect this analysis.

Accordingly, the district court properly concluded that Anderson’s case was

barred and summary judgment was appropriate.

      II. Motion to Alter Judgment

      We review the denial of a motion to alter or amend a judgment under Rule

59(e) for abuse of discretion. Shuford v. Fidelity Nat’l Prop. & Cas. Ins. Co., 508

F.3d 1337, 1341 (11th Cir. 2007). “The only grounds for granting [a motion to

alter judgment] are newly-discovered evidence or manifest errors of law or fact.”

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). A motion to alter judgment

may not be used “to relitigate old matters, raise argument or present evidence that

could have been raised prior to the entry of judgment.” Id.

      Here, the district court properly denied Anderson’s motion to alter

judgment, as Anderson failed to demonstrate that the court had committed a




                                           5
manifest error of law or fact in granting summary judgment to Vanguard, and did

not argue that there was newly-discovered evidence.

      III. Judge Recusal

      We review a district judge’s decision as to whether to recuse himself for an

abuse of discretion. United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989).

Recusal of federal judges is governed by 28 U.S.C. § 455. Id. at 744. Section

455(a) instructs a federal judge to disqualify himself if “his impartiality might be

reasonably questioned,” and § 455(b) requires disqualification when the judge

“has a personal bias or prejudice concerning a party, or personal knowledge of

disputed evidentiary facts concerning the proceeding.” See § 445(a), (b)(1). The

duty of recusal applies whenever disqualifying circumstances become known to

the judge, whether that occurs before, during, or after a judicial proceeding. Kelly,

888 F.2d at 744. The standard for recusal under § 455(a) is “whether an objective,

disinterested, lay observer fully informed of the facts underlying the grounds on

which recusal was sought would entertain a significant doubt about the judge’s

impartiality.” Id. at 744-45 (quotations omitted).

      “The general rule is that bias sufficient to disqualify a judge must stem from

extrajudicial sources, and must be focused against a party to the proceeding.”

Hamm v. Members of Bd. of Regents, 708 F.2d 647, 651 (11th Cir. 1983) (citation


                                          6
omitted). “An exception to that rule is made when a judge’s remarks in a judicial

context demonstrate such pervasive bias and prejudice that it constitutes bias

against a party.” Id. “[J]udicial rulings alone almost never constitute a valid basis

for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).

Further, “[n]either a trial judge’s comments on lack of evidence, rulings adverse to

a party, nor friction between the court and counsel constitute pervasive bias.”

Hamm, 708 F.2d at 651.

       In this case, the record shows that Judge Cohn simply made rulings adverse

to Anderson, which cannot be used to compel recusal under 28 U.S.C. § 455.

Accordingly, Anderson’s allegations do not warrant recusal.

       IV. Fraud

       We will not consider “arguments not raised in the district court and raised

for the first time in an appeal.” Access Now, Inc., v. Southwest Airlines Co., 385

F.3d 1324, 1331 (11th Cir. 2004) (quotation omitted). Because Anderson raises

his claims of fraud against Judge Cohn for the first time on appeal, he has waived

this argument. 2

       For the foregoing reasons, we affirm.

       2
          Further, we will not consider Anderson’s fraud allegations against Judge Graham
because Anderson I is outside the scope of this appeal. Anderson separately appealed Anderson
I, and we affirmed the district court’s dismissal with prejudice in that case. See Anderson, 304 F.
Appx. 830. Thus, he should have raised any issues concerning Judge Graham in that appeal.

                                                 7
AFFIRMED.




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