Moody v. Kraft Foods Global

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 06-20666
Summary Calendar
_____________________
ALPHONSO O. MOODY,
Plaintiff - Appellant,
versus
KRAFT FOODS GLOBAL INC.,
formerly known as Kraft Foods North America Inc.,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:05-CV-1765
_________________________________________________________________
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
The Appellant, Alphonso O. Moody (“Moody”) appeals the
district court’s grant of summary judgment to Kraft Foods Global
Inc. (“Kraft”). For the following reasons, we affirm the judgment
of the district court.
On April 22, 2004, Moody filed suit against Kraft alleging
race and national origin discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended,
and the Civil Rights Act of 1991, 41 U.S.C. § 1981, et seq., as

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1 While the summary judgment motion was pending, Moody also
filed a Second Request for Conference Motion, a Motion and a
Renewed Motion for Discovery, and a Motion to Continue the Deadline
for Filing a Response to Kraft’s Motion for Summary Judgment.
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amended. Specifically, Moody claimed that Kraft had excluded him
from advancement or promotion because of his race and had
retaliated against him for complaining about the company’s alleged
failure to promote him. He also alleged intentional infliction of
emotional distress.
On September 24, 2004, Kraft filed a motion for summary
judgment. On December 10, 2004, while the summary judgment motion
was pending, Moody filed an opposed motion for leave to amend his
complaint to delete his race discrimination claim and to replace it
with an age discrimination claim.1 Moody never filed a response to
the summary judgment motion. On July 7, 2005, United States
District Court Judge Lynn Hughes denied Moody’s motion for leave to
amend and granted summary judgment in favor of Kraft. Moody did
not appeal.
While his first case was ongoing, Moody filed the instant
action against Kraft, alleging age discrimination, in the 125th
Judicial District of Harris County. On May 17, 2005, Kraft removed
the case to federal district court based on diversity jurisdiction.
On September 19, 2005, Kraft filed a motion to dismiss, or in the
alternative, a motion for summary judgment, arguing Moody’s claims
are barred by res judicata, collateral estoppel, and waiver.
Finding that res judicata barred Moody’s second suit, the district

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court granted summary judgment in favor of Kraft. Moody timely
appealed.
After careful review of the record, we conclude that the
district court correctly determined that Moody’s age discrimination
claim is barred. The parties are identical in both suits; a final
judgment on the merits was rendered in the first suit; both
judgments were rendered by courts of competent jurisdiction; and
the claims in both lawsuits arise out of the same nucleus of
operative facts relating to Kraft’s treatment of Moody. Nilsen v.
City of Moss Point, Mississippi, 701 F.2d 556, 559 (5th Cir. 1983).
Moody’s primary argument that District Judge Hughes never decided
or had jurisdiction over his age discrimination claim because Judge
Hughes refused to allow him to amend his complaint is meritless.
But for his “own dilatoriness, [Moody] could have – and therefore
should have – timely asserted [his age discrimination claim] in
[his] initial lawsuit.” Bishop v. Kerr-McGee, 57 Fed. Appx. 211 at
* 1 (5th Cir. 2003) (unpublished) (per curiam). In any event, his
opportunity to raise any error by District Court Judge Hughes in
refusing to allow him to amend his complaint would have been in a
appeal of that final judgment. Because Moody “can only win the
suit by convincing the court that the prior judgment was in error,
the second suit is barred.” Test Masters Educ. Servs. v. Singh,
428 F.3d 559, 571 (5th Cir. 2005) (citing New York Life Insur. Co.
v. Gillispie, 203 F.3d 384, 387 (5th Cir. 2000).

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For essentially the reasons set forth in its well-reasoned
opinion, the ruling of the district court is
AFFIRMED.

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