DR. MADHWA RAJ
LOUISIANA STATE UNIVERSITY, LSU BOARD OF SUPERVISORS AND LSU HEALTH AND SCIENCES CENTER IN NEW ORLEANS
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On Appeal from the 19th Judicial District Court Parish of East Baton Rouge, State of Louisiana. Docket No. 617, 542, Section 26 . Honorable Kay Bates, Judge Presiding.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
John-Michael Lawrence, New Orleans, LA, Attorney for Plaintiff-Appellant, Dr. Madhwa Raj.
James D. " Buddy" Caldwell, Attorney General, Baton Rouge, LA and Michael F. Nolan, Special Assistant Attorney General, Metairie, LA, Attorneys for Defendants-Appellees, Louisiana State University, LSU Board of Supervisors and LSU Health and Sciences Center in New Orleans.
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
[2014 0140 La.App. 1 Cir 2] HOLDRIDGE, J.
This appeal stems from an employment discrimination suit that a professor, Dr. Madhwa Raj, brought against his employer, Louisiana State University (LSU), its Board of Supervisors (LSU Board), and the LSU Health and Sciences Center in New Orleans (LSU Health). Dr. Raj alleged that the defendants " harassed" him for not procuring enough grant money. The defendants responded with a peremptory exception raising an objection of res judicata, arguing that Dr. Raj had previously filed an almost identical suit in federal court, which the federal court had dismissed. The state district court sustained the exception and dismissed the suit. For the reasons that follow, we affirm in part, reverse in part, and remand.
FACTUAL AND PROCEDURAL BACKGROUND
According to Dr. Raj's petition, in December 2009, Dr. Thomas Nolan, the then-Chair of Department of Obstetrics and Gynecology, began to harass Dr. Raj for not obtaining sufficient grant funds. Dr. Raj further alleges that, around March 2010, Dr. Nolan tried to pressure him into retiring. Dr. Raj goes on to allege that, as an additional means of pressuring him to retire, the Dean of the Medical School closed Dr. Raj's laboratory, effective June 2010. According to Dr. Raj's petition, the defendants' actions exacerbated his diabetes and led to his suffering neuropathy and chest pains, which required him to take extended sick leave. Dr. Raj also alleges that he tore his rotator cuff, which led to his being continued on sick leave by his treating physician.
In May 2011, Dr. Raj filed suit in federal district court (Raj I) against the same three defendants named in the present suit. In Raj I, Dr. Raj alleged claims under an array of federal and state statutes: the Age Discrimination in Employment Act [2014 0140 La.App. 1 Cir 3] (ADEA);  Title VII of the Civil Rights Act (Title VII);  the Equal Pay Act;  fraud, fraudulent inducement, intentional misrepresentation, and intentional infliction of emotional distress, all under LSA-C.C. arts. 2315 and 1953; conspiracy to commit intentional infliction of emotional distress, conspiracy to provide unequal pay, and breach of contract, all under LSA-C.C. art. 2315, et seq.; federal employment discrimination and conspiracy to commit employment discrimination (§ § 1983 and 1985);  federal denial of due process and equal protection, under the Fifth and Fourteenth Amendments to the federal constitution; and " State General Tort Law." In response, the defendants moved to dismiss Raj I under Federal Rules of Civil Procedure (F.R.C.P.) Rules 12(b)(1) (asserting a lack of subject-matter jurisdiction), 12(b)(5) (asserting insufficient service of process), and 12(b)(6) (asserting the failure to state a claim upon which relief can be granted).
Subsequently, the federal district court granted the F.R.C.P. Rule 12(b)(1) motion field on behalf of LSU and LSU Health, dismissing all claims against those defendants based upon the court's finding that
they lacked the legal capacity to be sued. As for the remaining defendant, the LSU Board, the federal district court dismissed all of Dr. Raj's claims against it. It dismissed Dr. Raj's ADEA claim against the LSU Board for lack of subject matter jurisdiction, based upon the state's Eleventh Amendment immunity to suit for money damages in federal court. Additionally, in Raj I, the federal district court dismissed the remainder of Dr. Raj's claims against the LSU Board under F.R.C.P. Rule 12(b)(6), for failure to state a claim upon which relief could be granted.
[2014 0140 La.App. 1 Cir 4] Dr. Raj appealed the Raj I judgment to the U.S. Court of Appeals for the Fifth Circuit. That court affirmed the dismissal of all of his claims; but, for some of the claims, it did so on different grounds from those in the court below. Raj v. Louisiana State University, 714 F.3d 322 (5th Cir. 2013).
We first note that the Fifth Circuit did not address the district court's dismissal of Dr. Raj's claims against LSU and LSU Health, finding that Dr. Raj waived appellate review of this ruling by failing to brief the issue. Id. at 327. That left only Dr. Raj's claims against the LSU Board. The Fifth Circuit found that the district court had correctly dismissed Dr. Raj's ADEA claim against the LSU Board for lack of jurisdiction. Id. at 328. However, and of particular importance here, the Fifth Circuit found that most of Dr. Raj's claims against the LSU Board that the district court dismissed for failure to state a claim, actually should have been dismissed for lack of subject matter jurisdiction, including Dr. Raj's claims under § § 1983 and 1985, the claims under the Fifth and Fourteenth Amendments, and the claims based on state law. Id. at 328-29. In addition, the Fifth Circuit refused to reconsider the district court's dismissal of Dr. Raj's claims under the Equal Pay Act or for retaliation under Title VII because Dr. Raj had failed to properly address the dismissal of those claims on appeal. Id. at 330. Finally, the Fifth Circuit found that Dr. Raj had failed to state a claim for disparate treatment under Title VII, and affirmed " the district court's dismissal of [Dr.] Raj's complaint under Rule 12(b)(6) for failure to state a claim." Id. at 331.
After the Fifth Circuit's Raj I ruling, Dr. Raj filed the present suit in state district court (Raj II). In his initial state petition, Dr. Raj re-alleged the claims he had brought in his federal complaint. In a supplemental and amending petition, Dr. Raj added a new claim under the federal Family and Medical Leave Act (FMLA). In response, the defendants filed their exception of res judicata, which the state [2014 0140 La.App. 1 Cir 5] district court granted by judgment signed on November 22, 2013, reasoning that the Raj II claims arose from " the same set of operative facts as those which gave rise to the suit filed in federal court." In the wake of the state district court's Raj II ruling, Dr. Raj brought the present appeal. In it, he urges eight assignments of error. However, because the assignments contain some duplication, we include only some of them. All the issues raised by Dr. Raj's assignments are captured by the following:
I.a. The complaint in state court includes a claim under the Family Medical Leave Act that was not raised in federal court, and therefore not subject to the federal doctrine of preclusion.
I.b. The federal complaint includes state law claims that are not subject to the federal doctrine of preclusion.
I.c. The state court complaint includes new and different operative facts on the federal claims not in the federal court complaint and therefore not subject to preclusion.
. . .
II.a. The federal district court did not have jurisdiction over the federal claims against the state under the eleventh amendment immunity doctrine, and therefore had no authority to make a ruling on those claims, which precludes res judicata.
. . .
II.d. The federal court decision was not on the merits and cannot be with prejudice under Rule 12 and therefore not subject to res judicata.
Res Judicata, the Law to Apply
When a Louisiana court assesses the issue of res judicata in a case in which the earlier judgment came from a federal court exercising federal question jurisdiction, the Louisiana court will apply the federal law of res judicata. See Reeder v. Succession of Palmer, 623 So.2d 1268, 1271 (La. 1993), cert. denied 510 U.S. 1165, 114 S.Ct. 1191, 127 L.Ed.2d 541 (1994). At the outset, we note that in ascertaining what federal law says about res judicata, we are only bound by decisions of the United States Supreme Court, and decisions of the federal appellate courts, such as our circuit, the Fifth, are merely persuasive authority. See [2014 0140 La.App. 1 Cir 6] FIA Card Services, N.A. v. Weaver, 10-1372 (La. 3/15/11), 62 So.3d 709, 714; Shell Oil Co. v. Sec'v, Revenue & Taxation, 96-0929 (La. 11/25/96), 683 So.2d 1204, 1210, n .ll. Although the decisions of the U.S. Fifth Circuit are not binding authority for us, our federal circuit's cases on res judicata supply useful guidance in navigating these federal waters. Thus, in the present appeal, we choose to follow the Fifth Circuit decisions cited here.
Res Judicata, Standard of Review
Federal appellate courts reviewing res judicata effect of a prior judgment apply the de novo standard of review. E.g., Test Masters Educ. Services, Inc. v. Singh,428 F.3d 559, 571 (5th Cir. 2005), cert. denied, 547 U.S. 1055, 126 S.Ct. 1662, 164 L.Ed.2d 397 (2006). That same standard has been applied by a Louisiana appellate court reviewing the res judicata effect of a prior federal judgment. Morales v. Parish of ...