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United States Court of Appeals
Fifth Circuit
F I L E D
June 25, 2003
REVISED JUNE 27, 2003
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
For the Fifth Circuit
No. 02-40564
FRANK BROOKS,
Plaintiff - Appellant,
VERSUS
RAYMOND DUGAT COMPANY L C
Defendant - Appellee.
Appeal from the United States District Court
For the Southern District of Texas, Corpus Christi
Before DeMOSS and STEWART, Circuit Judges, and LITTLE,1 District
Judge.
DeMOSS, Circuit Judge.
On May 1, 2001, Appellant Frank Brooks ("Brooks") brought suit
against Appellee Raymond Dugat Company L C, ("Dugat"), claiming a
cause of action for maintenance and cure under the General Maritime
Law for a slip and fall he suffered on the M/V Amanda on June 2,
1 District Judge of the Western District of Louisiana,
sitting by designation.

1998. Brooks had filed a similar suit, including a claim for
maintenance and cure, against Dugat in May of 2000 but voluntarily
moved to dismiss all of his claims with prejudice. The operative
facts and maintenance and cure causes of action are the same in
both suits.
On January 15, 2002, Dugat filed a Motion for Summary Judgment
in the instant suit. Dugat claimed that Brooks's instant suit was
barred by claim and issue preclusion or alternatively that Dugat
was not the employer of Brooks when he was injured. Brooks opposed
the motion contending that claim and issue preclusion were
inapplicable and that Dugat was his employer when he was injured.
On March 4, 2002, the United States District Court for the
Southern District of Texas granted Dugat's Motion for Summary
Judgment and found that Brooks's claim was barred by claim
preclusion. The court did not address issue preclusion or whether
Dugat was Brooks's employer at the time of the injury. Brooks now
appeals the granting of summary judgment.
We review a district court's grant of summary judgment de
novo. Young v. Equifax Credit Info. Servs. Inc., 294 F.3d 631, 635
(5th Cir. 2002). Summary judgment is appropriate only "if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
2

56(c).
For claim preclusion to apply, the following four requirements
must be met: (1) the parties must be identical in both suits; (2)
the prior judgment must have been rendered by a court of competent
jurisdiction; (3) there must be a final judgment on the merits; and
(4) the same cause of action must be involved in both suits. U.S.
v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994) (citation omitted).
If these four requirements are met, a party cannot raise a claim in
a later proceeding that was, or could have been, raised in the
prior proceeding. Id.
All the requirements are met in the instant suit. The first
and second requirements are not disputed � the parties are
identical and the court that rendered the prior judgment, which
coincidentally was the same district court that decided the instant
summary judgment motion, was a court of competent jurisdiction.
The third requirement, that there be a final judgment on the
merits in the prior proceeding, is also met. A dismissal with
prejudice is a final judgment on the merits. Schwarz v. Folloder,
767 F.2d 125, 129-130 (5th Cir. 1985).
The fourth requirement, that the same cause of action is
involved in both suits, is also met. To determine whether the two
suits involve the same cause of action, this Court applies the
transactional test and asks whether the two suits involve the same
nucleus of operative facts. Agrilectric Power Partners, Ltd., v.
3

General Elec. Co., 20 F.3d 663, 665 (5th Cir. 1994). Both the
instant suit and prior suit involve the exact same facts.
Even though these four requirements are met, the present
appeal focuses on the application of claim preclusion to a
maintenance and cure claim. The fact that a maintenance and cure
claim is involved, however, does not affect the instant suit.
The right to maintenance and cure is ongoing and serial suits
may be brought to collect maintenance and cure payments as they
come due. Pelotto v. L & N Towing Co., 604 F.2d 396, 398 (5th Cir.
1979). A seaman cannot be denied the right to sue for maintenance
and cure before such a claim has accrued. Cooper v. Diamond M Co.,
799 F.2d 176, 179 (5th Cir. 1986). Nonetheless, claim preclusion
still applies to admiralty proceedings, including claims for
maintenance and cure. Pelotto, 604 F.2d at 401.
In Pelotto v. L & N Towing Co., the plaintiff brought an
admiralty action but did not initially include a claim for
maintenance and cure. Id. at 398. The plaintiff later asserted a
claim for maintenance and cure, but that issue was never addressed
because the defendants agreed to pay maintenance and cure claims
incurred by the plaintiff for a certain period of time. Id. at
399. The plaintiff did pursue his other claims against the
defendants and ultimately prevailed. Id. When the defendants
stopped making maintenance and cure payments, the plaintiff then
brought a maintenance and cure claim. Id. The district court
4

granted summary judgment against the plaintiff on the grounds of
res judicata or claim preclusion. Id. at 400. This Court reversed
the district court and held that the plaintiff's failure to claim
maintenance and cure in his initial suit did not bar the
plaintiff's later action for maintenance and cure. Id. at 402.
This Court explained that even if the plaintiff brought his
maintenance and cure claim in the initial suit, there would still
be no bar to bringing the maintenance and cure claim in the later
suit because, and contrary to the instant suit, no determination
had ever been entered that the defendants were not required to pay
maintenance and cure in the first instance. Id. at 401-02. This
Court, however, also stated that if the plaintiff had claimed
maintenance and cure in his initial suit and an "identifiable
finding" had been made fixing the maximum cure, res judicata or
claim preclusion would bar the plaintiff's subsequent claim that
was outside of the fixed maximum cure. Id. at 402 n.12.
We agree with the district court's determination in this suit
that the logical conclusion drawn from Fifth Circuit precedent is
that, if a finding has been made that the plaintiff is not due
maintenance and cure, then claim preclusion would bar all
subsequent claims for maintenance and cure. Brooks's dismissal
with prejudice was tantamont to a judicial determination of his
non-entitlement to maintenance and cure arising out of his slip and
fall on June 2, 1998. See Schwarz, 767 F.2d at 129-30. Thus,
5

because a plaintiff must be entitled to maintenance and cure before
any recovery can be obtained, the district court correctly
dismissed Brooks's second maintenance and cure suit. To hold
otherwise, would result in claim preclusion never applying to
maintenance and cure claims. Therefore, before any recovery for
maintenance and cure can be had, a plaintiff must be entitled to it
and in order to be entitled to maintenance and cure a plaintiff
cannot have previously asserted a maintenance and cure claim that
was dismissed with prejudice. Accordingly, we affirm the district
court's granting of summary judgment for the reasons articulated by
the district court.
AFFIRM
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