     Case: 16-11413      Document: 00514366339         Page: 1    Date Filed: 02/28/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                    No. 16-11413
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                        February 28, 2018
                                                                            Lyle W. Cayce
JAY SANDON COOPER,                                                               Clerk


                                                 Plaintiff-Appellant

v.

BANK OF NEW YORK MELLON, Trustee; OCWEN LOAN SERVICING,
L.L.C.; JOHN M. LYNCH; J. GARTH FENNEGAN; KRISTINA A. KIIK;
MICHAEL R. STEINMARK; SETTLE & POU PROFESSIONAL
CORPORATION; DAVID GARVIN; JACK BECKMAN; KELLY GODDARD;
GENE ALYEA; DON GWIN; DAVID O’DENS; ROBERT POU; CLIFF A.
WADE; MICHAEL P. MENTON; JARED T. S. PACE, Substitute Trustees,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-2795


Before DAVIS, JONES, and OWEN, Circuit Judges.
PER CURIAM: *
       Jay Sandon Cooper moves to proceed in forma pauperis (IFP) on appeal.
He seeks to challenge the district court’s dismissal of his civil action as barred
by res judicata. The district court denied his motion for leave to proceed IFP


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-11413

on appeal and certified that the appeal was not taken in good faith. By moving
for IFP status, Cooper is challenging the district court’s certification. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      This court reviews de novo a dismissal for failure to state a claim under
Rule 12(b)(6). See Legate v. Livingston, 822 F.3d 207, 209-10 (5th Cir.), cert.
denied sub nom. Legate v. Collier, 137 S. Ct. 489 (2016). A complaint fails to
state a claim upon which relief may be granted when it does not contain
“sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted).
      On appeal, Cooper contends that the defendants waived the affirmative
defense of res judicata by not raising it in their first motion to dismiss.
Although a defendant should generally raise res judicata in an answer, the
defense will not be deemed to have been waived as long as it was asserted “at
a pragmatically sufficient time,” and the opposing party was not prejudiced in
its ability to respond. United States v. Shanbaum, 10 F.3d 305, 312 (5th
Cir.1994).   Because the defendants raised the defense in their motion to
dismiss after being directed to argue the issue by the magistrate judge, and
Cooper was not prejudiced in his ability to respond, they did not waive the res
judicata defense. See id.; see also Pasco ex rel. Pasco v. Knoblauch, 566 F.3d
572, 578 (5th Cir. 2009); Lafreniere Park Foundation v. Broussard, 221 F.3d
804, 808 (5th Cir. 2000).
      Cooper next contends that the district court did not consider the claims
he raised in his amended complaint that were not barred by res judicata.
Contrary to Cooper’s argument, the record reflects that the district court
considered Cooper’s amended complaint and compared it to the claims raised
in his 2009 and 2013 lawsuits.



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      Next, Cooper argues that the district court improperly shifted the burden
to him by ordering him to produce the records in the prior cases. The district
court did not shift the burden of proof to Cooper by directing both parties to
present the records of the prior lawsuits. Because both parties referred to the
related cases, the district court had the authority to raise the issue sua sponte
in the interest of judicial economy where the previous action was brought
before a court in the same district. See Mowbray v. Cameron County, Tex., 274
F.3d 269, 281 (5th Cir. 2001) (citing Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.
1980)); Nagle v. Lee, 807 F.2d 435, 438 (5th Cir. 1987).        The defendants
established that in his 2009 and 2013 lawsuits, Cooper raised numerous
claims, challenging the pending foreclosure of his property by the same Lender
defendants. Courts of competent jurisdiction dismissed both of these lawsuits
with prejudice. Further, all of the defendants in the instant cases were in
privity with the defendants in the prior lawsuits. All of Cooper’s claims in the
prior lawsuits and in the instant lawsuit arose out of his failure to meet his
loan obligations and his desire to prevent the Lender defendants from
foreclosing on the same property. Therefore, the defendants established that
Cooper’s current claims were barred by res judicata. See Amstadt v. U.S. Brass
Corp., 919 S.W.2d 644, 652 (Tex. 1996); Samuel v. Fed. Home Loan Mortg.
Corp., 434 S.W.3d 230, 234 (5th Cir. 2014).
      According to Cooper, the district court improperly dismissed his
complaint with prejudice without a trial on the merits. Contrary to Cooper’s
argument, the district court’s dismissal of his complaint for failure to state a
claim under Rule 12(b)(6) constitutes a judgment on the merits. See Federated
Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981); see also Plaut v.
Spendthrift Farm, 514 U.S. 211, 228 (1995). The district court did not err in




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dismissing Cooper’s complaint with prejudice for failure to state a claim under
Rule 12(b)(6). See Iqbal, 556 U.S. at 678; Legate, 822 F.3d at 209-10.
      Next, Cooper argues that the district court violated Cooper’s due process
rights by dismissing the case based on res judicata.         Cooper’s statute of
limitations claim could have been raised in his 2009 lawsuit, which was still
pending in June 2010, when the limitations period allegedly expired, as well
as in his 2013 lawsuit. Because Cooper could have raised the limitations claim
in his prior lawsuits, he has not shown that his due process rights were violated
because the district court dismissed this claim as barred by res judicata. See
Amstadt, 919 S.W.2d at 652; see also Samuel, 434 S.W.3d at 234.
      Finally, Cooper contends that the district court erred in not applying
state law concerning the doctrine of res judicata. Because he did not raise this
argument in his objections to the magistrate judge’s report in the district court,
review is limited to plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009). Although Cooper is correct that the district court erred in not applying
state law on res judicata, he has not shown that this error affected his
substantial rights because federal and Texas law on res judicata are the same.
See Amstadt, 919 S.W.2d at 652; Test Masters Educ. Servs., Inc. v. Singh, 428
F.3d 559, 571 (5th Cir. 2005); Flippin v. Wilson State Bank, 780 S.W.2d 457,
459 (Tex. App. 1989). Because Cooper has not argued or shown that under
Texas law, the doctrine of res judicata would have been inapplicable to the
instant case, he has not shown that the district court’s failure to apply Texas
law affected his substantial rights. See Puckett, 556 U.S. at 135.
      Cooper’s appeal is not taken in good faith because it lacks arguable merit
and is frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, Cooper’s IFP motion is DENIED and his appeal is DISMISSED
as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.



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      Cooper has had several prior actions or appeals dismissed as frivolous or
for failure to state a claim. See Cooper v. Dallas Police Ass’n, No. 13-11281 (5th
Cir. Nov. 14, 2014) (appeal dismissed as frivolous); Cooper v. Bank of New York,
No. 3:13-CV-1985 (N.D. Tex. Jan. 31, 2014) (dismissal for failure to state a
claim); Cooper v. City of Plano, No. 4:10-CV-00689 (E.D. Tex. Sept. 13, 2011)
(dismissal for failure to state a claim); Cooper v. Household Financial Services,
No. 4:01-CV-00260 (E.D. Tex. April 1, 2002) (dismissal for failure to state a
claim). Cooper is ADVISED that future frivolous actions or appeals could
result in the imposition of sanctions.




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