Davis v. Protect Controls Inc. Flexible Account Plan et al

Filing 48

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ERIK DAVIS,
Plaintiff,
v.
PROTECT CONTROLS, INC.
FLEXIBLE ACCOUNT PLAN;
JOSEPH GALAGAZA;
JACKSON LEWIS LLP;
JACKSON LEWIS P.C.; and
PROTECT CONTROLS, INC.,
Defendants.

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April 13, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 4:17-02677

MEMORANDUM AND ORDER
Plaintiff Erik Davis, who proceeds pro se, brings this suit alleging violations
of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq.
(“ERISA”), and other claims. On March 6, 2018, Defendants Joseph Galagaza and
Jackson Lewis, P.C., filed a Motion for Summary Judgment [Doc. # 42] (“Motion”),
to which Plaintiff filed a Response [Doc. # 47]. On April 5, 2018, Defendant Protect
Controls Inc. (“PCI”) filed a Motion for Summary Judgment [Doc. # 46] (“PCI
Motion”) adopting and incorporating the prior Motion. Having considered the filings,
the applicable legal authorities, and all matters of record, the Court concludes that the
Motions should be GRANTED and Plaintiff’s claims should be dismissed with

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prejudice because they are barred by res judicata.
I.

BACKGROUND
Plaintiff brings this suit against the following eight Defendants: Joseph

Galagaza; Jackson Lewis LLP; Jackson Lewis, P.C.; PCI; “Protect Controls Inc.
Flexible Account Plan”; Don Davis; Walter Davis; and John Sekumade. The history
of Plaintiff’s prior litigation with Defendants is detailed and documented in the Motion
and its exhibits.
In summary, in 2009, Plaintiff brought a race discrimination suit against PCI.
Plaintiff was represented by John Sekumade. PCI was represented by Galagaza and
Jackson Lewis, P.C., Defendants in the case at bar. The parties settled their dispute and
PCI provided settlement funds to Sekumade, who then filed a stipulation of dismissal
with prejudice. Motion, at 2; id. at Exhibit B & C (state court records).1
In 2011, Plaintiff filed suit against Sekumade, seeking to recover the settlement
funds from the 2009 suit. Sekumade did not appear and, in 2013, Plaintiff obtained a
default judgment against him for over $1 million. Motion, at 2-3; id. at Exhibits D &

1

The Courts takes judicial notice of the public judicial records attached to the Motion.
See FED. R. EVID. 201(b)(2) (a “court may judicially notice a fact that is not subject
to reasonable dispute because it . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned”); Odle v. Wal-Mart Stores,
Inc., 747 F.3d 315, 316 n.1 (5th Cir. 2014). Defendants also supply an affidavit from
William Stukenberg, counsel for Galagaza and Jackson Lewis, P.C., authenticating
certain state court records based on his personal knowledge. See Exhibit A to Motion.

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E.
In 2014, Plaintiff filed suit against Galagaza, Jackson Lewis, P.C., and PCI in
the 151st Judicial District Court of Harris County, Cause No. 2014-66506 (“Davis I”),
alleging misrepresentation and concealment of monies in connection with settlement
of the 2009 suit. Among other things, Plaintiff claimed that he had not signed the
settlement agreement, and that Defendants had “concealed” a benefits check that was
part of a flexible spending account or ERISA plan. Motion, at 3; id. at Exhibits A-1
through A-9. After full discovery on the merits, the district court granted summary
judgment for Defendants and dismissed Plaintiff’s claims with prejudice. Id. at Exhibit
A-6. On April 18, 2017, the Fourteenth Court of Appeals affirmed. Id. at Exhibit A-8.
On July 20, 2017, Plaintiff filed the case at bar in the 151st Judicial District
Court of Harris County, Texas, Cause No. 2017-48122. Plaintiff again seeks monies
he alleges Defendants owe him as part of a flexible spending plan or ERISA plan.
Defendants Galagaza and Jackson Lewis, P.C., answered this suit in state court, and
pleaded res judicata as an affirmative defense. See Doc. # 1-2, at 116-121 (Original
Answer). Defendants then removed this case to this Court. Notice of Removal [Doc.
# 1]. The Court held a pre-trial conference on December 4, 2017. Hearing Minutes
and Order [Doc. # 24]; Transcript [Doc. # 38]. After the conference, as instructed by
the Court, Defendants filed their Motion for More Definite Statement [Doc. # 27], and

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Plaintiff filed a Response [Doc. # 28].
Of the eight defendants named by Plaintiff in this suit, three—Galagaza, Jackson
Lewis, P.C., and PCI— currently seek summary judgment and dismissal of all claims
against them. A fourth defendant,“Jackson Lewis LLP,” is Defendant Jackson Lewis,
P.C., by a former name. Counsel for Jackson Lewis, P.C. has appeared for both
entities. See Memorandum and Order [Doc. # 43], at 5. The remaining four
Defendants—“Protect Controls Inc. Flexible Account Plan,” Don Davis, Walter Davis,
and John Sekumade—have not been served with process and have not appeared in this
lawsuit.

Time for service has expired, see FED. R. CIV. P. 4(m), and this Court

previously denied Plaintiff’s motion for an extension of time. See id.2
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment who fails to make a sufficient showing of the existence of an element
essential to the party’s case, and on which that party will bear the burden at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers
Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary judgment
2

In addition, this Court previously denied Plaintiff’s request for service of process on
“Protect Controls Inc. Flexible Account Plan” because Plaintiff had made no showing
that service on such entity was possible or necessary. Id. Defendants maintain that
“Protect Controls Inc. Flexible Account Plan” is not an entity capable of being sued.

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“should be rendered if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Celotex, 477
U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
The moving party, however, need not negate the elements of the non-movant’s case.
See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving
party may meet its burden by pointing out “‘the absence of evidence supporting the
nonmoving party’s case.’” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001)
(internal citation omitted). “An issue is material if its resolution could affect the
outcome of the action. A dispute as to a material fact is genuine if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” DIRECTV Inc.
v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).

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In deciding whether a genuine and material fact issue has been created, the court
reviews the facts and inferences to be drawn from them in the light most favorable to
the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336
F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the non-movant.
Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The non-movant’s burden is not met by mere
reliance on the allegations or denials in the non-movant’s pleadings. See Diamond
Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002), overruled
in part on other grounds by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d
778 (5th Cir. 2009).

Likewise, “conclusory allegations” or “unsubstantiated

assertions” do not meet the non-movant’s burden. Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008). Instead, the
nonmoving party must present specific facts which show “the existence of a genuine
issue concerning every essential component of its case.” Am. Eagle Airlines, Inc. v.
Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir. 2003) (citation and internal
quotation marks omitted). In the absence of any proof, the court will not assume that
the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075
(citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

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The Court may make no credibility determinations or weigh any evidence. See
Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves
Brokerage Co., 336 F.3d at 412-413). The Court is not required to accept the
nonmovant’s conclusory allegations, speculation, and unsubstantiated assertions which
are either entirely unsupported, or supported by a mere scintilla of evidence. Id. (citing
Reaves Brokerage, 336 F.3d at 413).
Affidavits cannot preclude summary judgment unless they contain competent
and otherwise admissible evidence. See FED. R. CIV. P. 56(c)(4) (“An affidavit or
declaration used to support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated”); Love v. Nat’l Med. Enters.,
230 F.3d 765, 776 (5th Cir. 2000). A party’s self-serving and unsupported statement
in an affidavit will not defeat summary judgment where the evidence in the record is
to the contrary. See In re Hinsely, 201 F.3d 638, 643 (5th Cir. 2000).
Finally, although the Court may consider all materials in the record when
deciding a summary judgment motion, “the court need consider only the cited
materials.” FED. R. CIV. P. 56(c)(3). “When evidence exists in the summary judgment
record but the nonmovant fails even to refer to it in the response to the motion for
summary judgment, that evidence is not properly before the district court. Rule 56 does

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not impose upon the district court a duty to sift through the record in search of
evidence to support a party’s opposition to summary judgment.” Malacara v. Garber,
353 F.3d 393, 405 (5th Cir. 2003) (internal citations and quotation marks omitted).
III.

ANALYSIS
A.

Res Judicata

Defendants Galagaza and Jackson Lewis, P.C., seek summary judgment on res
judicata grounds, and Plaintiff has responded to the Motion.
Under Texas’s doctrine of claim preclusion (res judicata), a final adjudication
judgment on the merits bars further relitigation of the adjudicated claims by the parties
or their privies. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); see
Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 466-67 (5th Cir. 2013); U.S. v.
Davenport, 484 F.3d 321, 325-26 (5th Cir. 2007).3 Texas law requires a party relying
on the affirmative defense of res judicata to prove three elements: “(1) a prior final
determination on the merits by a court of competent jurisdiction; (2) identity of parties
or those in privity with them; and (3) a second action based on the same claims as were
or could have been raised in the first action.” Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010).
3

Because Davis I was adjudicated in state court, this Court applies Texas’ res judicata
standards. See Wills v. Arizon Structures Worldwide, L.L.C., 824 F.3d 541, 545 (5th
Cir. 2016).

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In this case, the first element is satisfied. Davis I yielded a final determination
on the merits because the trial court granted summary judgment, which subsequently
was upheld on appeal. These rulings were entered by courts of competent jurisdiction.
See id.
The second element requires “identity of parties or those in privity with them.”
Id. “Privity exists if the parties share an identity of interests in the basic legal right
that is the subject of litigation.” Amstadt, 919 S.W.2d at 653. Parties can be in privity
if: “(1) they can control an action even if they are not parties to it; (2) their interests
can be represented by a party to the action; or (3) they can be successors in interest,
deriving their claims through a party to the prior action.” Id. Courts examine “the
circumstances of each case” to determine whether the parties are in privity. Getty Oil
Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992). This requirement “exists
to ‘ensure that a defendant is not twice vexed for the same acts, and to achieve judicial
economy by precluding those who have had a fair trial from relitigating claims.’”
E.E.O.C. v. Jefferson Dental Clinics, P.A., 478 F. 3d 690, 694 (5th Cir. 2007) (quoting
Amstadt, 919 S.W.2d at 653).
In this case, all three defendants in Davis I (Galagaza, Jackson Lewis, P.C., and
PCI) are also Defendants in this suit. For these Defendants, the second element is
satisfied. Plaintiff also has named Jackson Lewis LLP, which is the former name of
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Jackson Lewis, P.C., on whose behalf counsel for Jackson Lewis, P.C., has appeared.
Jackson Lewis LLP and Jackson Lewis, P.C., clearly are in privity, and the interests
of Jackson Lewis LLP were adequately represented by the parties to Davis I. See
Amstadt, 919 S.W.2d at 653. The other four Defendants need not be considered
because they have not been served with process and have not appeared in this suit.4
The second element therefore is satisfied.
The third element requires that the second case be based on the same claims that
were or could have been raised in the first action. Joachim, 315 S.W.3d at 862. In this
suit, as in Davis I, Plaintiff seeks monies he alleges Defendants owe him as part of a
flexible spending plan or ERISA plan. See, e.g. Response, at 21-22 (arguing that
Jackson Lewis and Galagaza should be held liable because of actions regarding the
$151 benefit check and settlement payments directed to Sekumade). In fact, Plaintiff

4

Even if the Court were to consider the interests of these Defendants, the Court is
aware of no interest on their parts that was inadequately represented by the parties to
Davis I, and Plaintiff has identified no such interest. See Amstadt, 919 S.W.2d at 653.
“Protect Controls Inc. Flexible Account Plan” apparently is not an entity that can be
sued but, nevertheless, is fully aligned with PCI. Sekumade, Plaintiff’s counsel in the
2009 suit, has apparently has left the country, according to Plaintiff’s representations
to the Court. His interests in enforcing the settlement agreement appear to align with
those of the Davis I defendants. The role of Don Davis and Walter Davis in the
parties’ dispute, if any, is not apparent from the pleadings. In any event, Plaintiff has
not made service on these Defendants, and the time to do so has long expired See
FED. R. CIV. P. 4(m). See Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001) (district
court did not err in allowing non-appearing defendants to benefit from appearing
defendants’ favorable summary judgment motion).

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argues throughout his Response that Davis I was wrongly decided.5 Because Plaintiff’s
claims clearly could have been raised in Davis I, this third element is satisfied. See
Joachim, 315 S.W.3d at 862 (prior judgment “‘precludes a second action by the parties
and their privies on matters actually litigated and on causes of action or defenses
arising out of the same subject matter that might have been litigated in the first suit’”
(quoting Gracia v. RC Cola–7–Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984))).
See also Comer, 718 F.3d at 466 (principle of res judicata ensures that “controversies
once decided shall remain in repose,” and “does not depend upon whether or not the
prior judgment was right” ) (internal citation and quotation marks omitted).
Finally, to the extent Plaintiff relies on allegedly fraudulent statements that
Defendants’ counsel made on December 4, 2017, during a conference before the
undersigned, see Response, at 18-19, the record provides no support for an allegation
of fraud. Moreover, any claim regarding fraudulent statements in 2017 is irrelevant to
the three elements discussed above, see Joachim, 315 S.W.3d at 862, and would be
insufficient to defeat the preclusive effect of Davis I .

5

See, e.g., Response, at 15 (arguing that genuine issues of material fact should have
defeated summary judgment in Davis I); id. at 16 (arguing that the Fourteenth Court
of Appeals erred when adjudicating Plaintiff’s claims); id. at 19-20 (disputing
arguments made by Davis I defendants during the prior litigation); id. at 20 (referring
to discovery disputes in prior litigation); id. at 23 (arguing that Plaintiff’s due process
rights were violated during Davis I).

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Because Defendants have satisfied all three elements, the Court holds that this
action is barred by res judicata. Summary judgment is granted in favor of Galagaza
and Jackson Lewis, P.C.
B.

PCI’s Motion

Plaintiff has not yet responded to the PCI Motion on April 5, 2018. However,
PCI merely adopts and incorporates its co-Defendants’ Motion, urging dismissal based
on res judicata. The Fifth Circuit has recognized that when one defending party
establishes that the plaintiff has no cause of action, this defense generally inures also
to the benefit of other similarly situated defendants. See Lewis, 236 F.3d at 768.
Moreover, because Plaintiff briefed res judicata at length in his Response [Doc. # 47]
to the first Motion, he has had full notice and opportunity to be heard.
The Court grants summary judgment to PCI.
IV.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the Motion for Summary Judgment [Doc. # 42] filed by Joseph

Galagaza and Jackson Lewis, P.C., is GRANTED. All of Plaintiff’s claims are
DISMISSED with prejudice as barred by res judicata. It is further
ORDERED that the Motion for Summary Judgment [Doc. # 46] filed by PCI
is GRANTED.
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A separate final judgment will enter.
SIGNED at Houston, Texas, this 13th day of April, 2018.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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