# Davis v. CenturyLink, Inc

> District Court, S.D. Texas · January 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10676147

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** January 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10676147

## How later opinions describe it (automated extraction)

- applying res judicata to bar claims of absent class members

## Opinion text

UNITED STATES DISTRICT COURT January 30, 2023
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
GALVESTON DIVISION
VERONICA L. DAVIS, et al., §
§
Plaintiffs. §
§
V. § CIVIL ACTION NO. 3:22-cv-00038
§
CENTURYLINK, INC., et al., §
§
Defendants. §

MEMORANDUM AND RECOMMENDATION
Defendants CenturyTel Broadband Services, LLC and Central Telephone
Company of Texas (collectively, “CenturyLink”) have filed a Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. 45. CenturyLink
argues that the claims raised in the Second Amended Complaint are barred by a
class action settlement and principles of res judicata. I have, sua sponte, converted
CenturyLink’s motion to dismiss to a motion for summary judgment.1 See Dkt. 55.
Having reviewed the briefing, the record, and the applicable law, I recommend that
CenturyLink’s motion be GRANTED, and that all claims brought by Plaintiff
Veronica L. Davis (“Davis”) against CenturyTel Broadband Services, LLC, Central
Telephone Company of Texas, and Lumen Technologies, Inc. be dismissed.
BACKGROUND
A. FACTS GIVING RISE TO THIS LAWSUIT
This case has an unusual backstory. Davis is an attorney proceeding pro se.
Davis represented her purported co-plaintiffs, Jeff Kitchen (“Kitchen”) and the

1 Because CenturyLink’s motion to dismiss relies on documents outside the pleadings, I
informed the parties that I would treat the motion to dismiss as a motion for summary
judgment. See Dkt. 55; FED. R. CIV. P. 12(d) (a motion to dismiss presenting matters
outside the pleadings should be treated as a motion for summary judgment). I gave
Plaintiffs an opportunity to submit any additional material they found necessary to
respond to the motion for summary judgment. See Dkt. 55. Plaintiffs took me up on my
offer. See Dkt. 62.
Charlie Brown Heritage Foundation (“Charlie Brown”), in other litigation. This
lawsuit arises from alleged “problems with telephone and internet service” that
Plaintiffs claim led to the granting of summary judgment against Kitchen and
Charlie Brown in separate lawsuits. Dkt. 38 at 24. For that, Plaintiffs seek more
than $1 million in damages.
The Charlie Brown case: This was a land dispute between Charlie Brown,
represented by Davis, and the Columbia-Brazoria Independent School District
(“CBISD”). CBISD moved for summary judgment. Davis, as counsel for Charlie
Brown, filed a response to CBISD’s motion for summary judgment without
attaching any exhibits. Davis alleges that “[i]nternet problems” caused the exhibits
to not attach to the response. Dkt. 38 at 26. Three weeks after Davis filed the initial
response and two weeks after CBISD had already replied, Davis filed a corrected
response attaching summary judgment evidence. Noting that the court had
previously been “extremely lenient with Davis’s untimely and ‘incomplete’ filings,”
United States District Judge George C. Hanks, Jr. declined to consider the
corrected response and granted summary judgment against Charlie Brown in May
2018. Charlie Brown Heritage Found. v. Columbia Brazoria Ind. Sch. Dist., No.
3:15-cv-346, 2018 WL 2059203, at *4–5 (S.D. Tex. May 3, 2018), aff’d, 771 F. App’x
536 (5th Cir. 2019). The Fifth Circuit affirmed the dismissal.
The Kitchen case: Kitchen brought a disability and employment
discrimination matter against his former employer, BASF Corporation (“BASF”).
Davis represented Kitchen in the lawsuit. In July 2018, BASF filed a motion for
summary judgment. As counsel for Kitchen, Davis filed a response one minute
before the deadline for doing so. There was, however, no evidence attached to the
response. In an effort to cure this obvious problem, Davis late-filed a corrected
response, along with summary judgment evidence. As with the Charlie Brown case,
Davis alleges that “faulty internet service” provided by CenturyLink resulted in the
exhibits failing to attach to the summary judgment response. Dkt. 38 at 26. In
October 2018, Judge Hanks—who presided over both cases—struck the “corrected”
response as untimely under the local rules and granted summary judgment against
Kitchen. Kitchen v. BASF, 343 F. Supp. 3d 681, 687 n.2 (S.D. Tex. 2018), aff’d, 952
F.3d 247 (5th Cir. 2020). The Fifth Circuit affirmed the dismissal.
In February 2022, Plaintiffs filed the instant lawsuit against CenturyLink,
Lumen Technologies, Inc. (f/k/a CenturyLink, Inc.), and other service providers to
recover damages arising out of purported problems with Davis’s internet and
telephone service. Davis alleges that while she was a customer of CenturyLink, her
internet and telephone service was “either problematic or inadequate” because:
a. [CenturyLink] overcharged for telephone and internet services;

b. Billing was inconsistent. Specifically, [Davis] subscribed to a fixed
pricing plan in which the bill would remain the same monthly.
However, it often varied.

c. Each time[] a change was made to [Davis’s] telephone service, . . .
[Davis] lost telephone service usually for one entire day, no matter
what the nature of the change was;

d. Internet service was sketchy and often did not work, at all.

e. [CenturyLink] did not provide services at the internet speed at
which it guaranteed the consumer/[Davis].

Dkt. 38 at 10. Davis contends that she requested CenturyLink to discontinue
telephone and internet services in January 2020.
Plaintiffs bring the following causes of action, all of which pertain to Davis’s
internet and telephone service: (1) violations of 47 C.F.R. § 64.2401 (the Federal
Communications Commission’s “Truth-in-Billing regulations”); (2) fraud and
fraudulent inducement; (3) negligent misrepresentation; (4) breach of contract;
(5) breaches of the Fair Debt Collection Practices Act and Fair Credit Reporting
Act; and (6) violations of the Texas Deceptive Trade Practices Act.
B. THE CLASS ACTION LAWSUIT AGAINST CENTURYLINK
In 2017, numerous purported consumer class actions brought against
CenturyLink—asserting various claims related to allegedly improper sales, billing,
quality, and collection practices—were consolidated before United States District
Judge Michael J. Davis in the United States District Court for the District of
Minnesota. The consolidated case was styled In Re: CenturyLink Sales Practices
and Securities Litigation, MDL No. 17-2795 (D. Minn.) (“Consumer MDL Action”).
A consolidated class action complaint was filed in the Consumer MDL Action in
February 2018 on behalf of “[a]ll persons or entities in the United States who,
during the Class Period, had an account for telephone or internet services with
[CenturyLink].” Dkt. 45-1 at 72. The consolidated class action complaint asserted,
in relevant part, claims for (1) violations of the Communications Act and federal
Truth-in-Billing regulations; (2) breach of contract; (3) negligent
misrepresentation; (4) fraudulent inducement; and (5) unjust enrichment. See id.
at 79–84, 98–103.
In October 2019, the parties settled. The settlement class consisted of:
All persons or entities in the United States who are identified by
CenturyLink as a residential or small business customer and who,
during the Class Period, had an account for local or long distance
telephone, internet, or television services with one or more of the
Operating Companies. Excluded from the class are . . . persons who
timely and validly request exclusion from the Settlement Class.
Dkt. 45-2 at 15. The class period included the time period “[b]etween January 1,
2014 and the date of entry of the Preliminary Approval Order.” Id. at 10. Judge
Davis (no relation to Plaintiff Davis) entered the Preliminary Approval Order on
January 24, 2020. See Dkt. 45-4 at 12. This means the class period ran from
January 1, 2014 through January 24, 2020. For the reasons discussed below, Davis
is unquestionably a member of the settlement class.
Judge Davis approved the class settlement agreement on December 4, 2020.
See Dkt. 45-5 at 53. The approval order bound absent class members who had not
opted out of the settlement and released CenturyLink from liability for future
claims “arising out of or asserted in the Consumer MDL Action . . . and all claims
released under the Settlement Agreement.” Id. at 52. A final judgment formally
disposed of the matter. See Dkt. 45-7.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). A fact issue is material only “if its resolution
could affect the outcome of the action.” Wyatt v. Hunt Plywood Co., 297 F.3d 405,
409 (5th Cir. 2002). “A factual dispute is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Beck v. Somerset
Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989).
PRELIMINARY ISSUES
A. SCOPE OF MOTION
Although CenturyLink’s motion suggests that the claims brought by all
plaintiffs against CenturyLink should be dismissed, the thrust of the motion is that
Davis’s claims against CenturyLink are barred by a class action settlement and
principles of res judicata. Because the specific basis for dismissing the claims
brought by Kitchen and Charlie Brown is unclear to me from reading
CenturyLink’s motion, I will consider the motion as being brought only as to Davis.
I will, however, grant leave to CenturyLink to file a separate motion to
dismiss/motion for summary judgment by February 10, 2022. In that motion,
CenturyLink should explain why it believes the claims brought by Kitchen and
Charlie Brown against CenturyLink should be dismissed at this stage of the
proceedings.
B. TIMELINESS OF MOTION
Davis first argues that I should strike CenturyLink’s motion on the ground
that it is untimely. I will not do so.
The Docket Control Order I issued allowed Plaintiffs to file a Second
Amended Complaint by July 29, 2022. See Dkt. 35. Had Plaintiffs filed the Second
Amended Complaint in compliance with the Docket Control Order, Rule 15(a)(3)
would have required CenturyLink to answer or otherwise respond by August 12,
2022. See FED. R. CIV. P. 15(a)(3) (a responsive pleading to an amended pleading
must be filed “within 14 days after service of the amended pleading”). But Plaintiffs
did not file their Second Amended Complaint by the court-imposed deadline of
July 29, 2022. Instead, they filed the Second Amended Complaint several days late,
on August 1, 2022. On August 2, 2022, Plaintiffs asked me to allow their late-filing,
claiming that they were unable to filed the Second Amended Complaint on July 29,
2022 because Davis experienced a power outage at her home. See Dkt. 39. I granted
Plaintiffs’ request on August 8, 2022. See Dkt. 42. CenturyLink filed its motion to
dismiss 14 days later, on August 22, 2022. CenturyLink thus contends that its
motion to dismiss is timely. I concur. Even if CenturyLink’s Rule 12(b)(6) motion
is considered untimely, I grant leave to CenturyLink to late-file the motion. As
noted, I have transformed CenturyLink’s motion to dismiss to a motion for
summary judgment. Because the deadline for filing dispositive motions does not
expire until July 2023, it is entirely appropriate to address the legal issues
concerning release and res judicata raised in CenturyLink’s motion.
C. SHOULD DISCOVERY BE PERMITTED BEFORE RULING ON
CENTURYLINK’S MOTION?
Davis next argues that I should wait to rule on CenturyLink’s motion until
she has had “an adequate chance for discovery.” Dkt. 62 at 10. To obtain a
continuance of a summary judgment motion to conduct additional discovery, a
nonmovant must strictly follow the procedure set forth in Rule 56(d). Rule 56(d)
states: “If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition [to a motion for
summary judgment], the court may . . . allow time to obtain affidavits or
declarations or to take discovery.” FED. R. CIV. P. 56(d) (emphasis added). Davis
did not file a Rule 56(d) affidavit. This failure alone justifies a refusal to allow
additional time to conduct discovery. See Johnson v. Kaufman Cnty., No. 3:15-CV-
3595, 2017 WL 978099, at *5 n.2 (N.D. Tex. Mar. 14, 2017) (rejecting plaintiff’s
request for additional time to conduct discovery where plaintiff failed to file an
affidavit under Rule 56(d)). Additionally, Davis does not—and cannot—explain
how any amount of additional discovery could possibly impact my ruling on the
pending motion, which concerns whether Davis’s claims are barred by a class
action settlement and the doctrine of res judicata.
ANALYSIS
A. THE CLASS ACTION SETTLEMENT BARS DAVIS’S CLAIMS
CenturyLink first argues that the settlement agreement and release in the
Consumer MDL Action bars Davis’s claims.
1. Legal Standard
A “court-approved settlement entered in a properly certified class action
generally will bind an absent class member.” Claunch v. FIA Card Servs., N.A.,
608 F. App’x 262, 263 (5th Cir. 2015) (quotation omitted). “For absent class
members to be bound, due process requires that they receive notice and an
opportunity to participate in the litigation.” Id. “The notice must be the best
practicable, reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to
present their objections.” Id. (quoting Phillips Petroleum Co. v. Shutts, 472 U.S.
797, 812 (1985)).
2. Analysis
CenturyLink contends that the class action settlement binds Davis because
she is a member of the settlement class, received notice of the settlement, and had
an opportunity to present her objections. I agree.
Davis does not dispute that she received notice of the settlement.2 In fact,
she has provided to the Court a copy of the claim form in which she elected to
receive payment from the class action settlement. See Dkt. 49-1 at 10–13.

2 Davis does state in her supplemental response that the “suit was settled by the time [she]
received notice” and she “received no prior notice of this matter.” Dkt. 62 at 7. Yet, Davis
does not explicitly argue that she should have received notice earlier. For clarity, however,
I note that, by and large, class members first learn of a class action settlement when they
receive a settlement notice with a claim form.
Nonetheless, Davis maintains, for a variety of reasons, that she is not a member of
the settlement class. Her arguments are not persuasive.
First, Davis says that she is not a member of the settlement class because she
“attempted to file into the lawsuit” but was told that she would instead have to “file
the case as a new case.” Dkt. 49 at 10. Although not entirely clear from the briefing,
I believe this argument stems from Davis’s mistaken belief that she had to opt in
to the settlement class to be a class member. See id. (“[The court-ordered legal]
notice provided the option to become a class member or not, and Plaintiffs were
not automatically included.”). The opposite, however, is true. The notice provided
by CenturyLink explicitly stated that class members must exclude themselves (i.e.,
opt out) if they did not want to be legally bound by the settlement. See Dkt. 49-4 at
2 (“you must exclude yourself by June 23, 2020, or you won't be able to sue
CenturyLink about the legal claims in this case”).3
Second, Davis argues that she cannot be a class member because she did not
timely submit her claim for payment. See Dkt. 49 at 10. This argument is both
incorrect and irrelevant. The evidence shows that Davis mailed the claim form on
June 23, 2020, and the form states that she could receive payment so long as the
form was postmarked no later than June 23, 2020. Accordingly, Davis’s claim was
timely. Additionally, the form clearly states that Davis would remain a member of
the settlement class even if the form was not timely submitted:
To be effective as a claim under the proposed settlement, this form must be completed, signed and sent, as outlined above,
no later than June 23, 2020. If this Claim Form is not postmarked or received by this date, you will remain a member of □□□
Settlement Class, but will not receive any payment from the Settlement.

Dkt. 49-1 at 10.

3 It is worth noting that “[rJequiring a plaintiff to affirmatively request inclusion would
probably impede the prosecution of those class actions involving an aggregation of small
individual claims, where a large number of claims are required to make it economical to
bring suit.” Shutts, 472 U.S. at 812-13. Therefore, “a fully descriptive notice ... with an
explanation of the right to ‘opt out[] satisfies due process.” Id. at 812.

Third, Davis claims that she excluded herself from the settlement class. See
Dkt. 49 at 11. In an email dated February 13, 2021 sent to the email address listed
on the court-ordered legal notice, Davis “advised that [she] wish[ed] to opt out of
this action.” Dkt. 49-5 at 2.4 Yet, again, the notice mailed to Davis clearly stated
that the deadline to opt out was June 23, 2020—eight months earlier:
What are my other options? If you don’t want to be legally
bound by the Settlement, you must exclude yourself by June
23, 2020, or you won't be able to sue CenturyLink about the
legal claims in this case. If you stay in the Settlement, you may
object to it by June 23, 2020. The Court will hold a hearing on
August 27, 2020, at 10:30 a.m. to consider whether to approve
the Settlement and a request by the lawyers representing all
Class Members for attorneys’ fees of up to one-third of the
maximum value of the Settlement, plus reimbursement for
costs and expenses, and for a $2,500 service award for each
class representatives for their services. You may ask to appear
at the hearing, but you don’t have to. The Court has entered
an injunction prohibiting you, until the time of the Final
Approval Hearing, from pursuing your claims in any other
lawsuits or arbitrations.

Dkt. 49-1 at 7.
In short, the summary judgment evidence conclusively establishes that
Davis was a member of the settlement class in the Consumer MDL Action.5 She is,
therefore, bound by the terms of the settlement agreement entered in that matter.

4 Davis herself attached this email as an exhibit to her response and raised no qualms
concerning the date of the email. Now, in her supplemental response, Davis states,
without further explanation, that she “believes that the date on the email is not correct.”
Dkt. 62 at 14. I view this statement as a brazen, bad-faith attempt to avoid summary
judgment.
5 One last note on this issue. Davis recently filed a second supplemental response, noting
that she received a bill from CenturyLink through a debt collector after she filed the first
supplemental response. See Dkt. 64. Apart from labeling this action as retaliatory, Davis
argues that “[i]f Century[L]ink contends that said debt is now owed, it can not then
contend that [Davis] was a part of the [settlement] class, in which all billing disputes were
resolved. Nor can it raise the issue of res judicata.” Id. at 2-3. Davis is wrong. Notably,
the settlement agreement does not “release, discharge or forgive any legally allowable
contract, obligation or indebtedness of any Settlement Class Member to CenturyLink.”
Dkt. 45-2 at 44.

The settlement agreement expressly provides that “each [settlement class
member] will be deemed to have completely released and forever discharged the
Released Parties,6 and each of them, from and for any and all Released Claims.”
Dkt. 45-2 at 21. The settlement agreement and release defines “Released Claims”
as:
Liabilities, claims, cross-claims, causes of action, rights, actions, suits,
debts, liens, contracts, agreements, damages, attorneys’
fees . . . losses, expenses, obligations, or demands, of any kind
whatsoever, whether known or unknown, existing or potential, or
suspected or unsuspected . . . which Settlement Class Members have
or may claim now or in the future to have, based on facts that occurred
during the Class Period that were alleged or asserted against any of
the Released Parties in the Consumer MDL Action and/or Consumer
Actions or that could have been alleged or asserted against any of the
Released Parties.
Dkt. 45-2 at 13–14.
Davis claims that she asserts in this lawsuit various causes of action against
CenturyLink that were not at issue in the class action lawsuit, including “[f]aulty
internet services which impacted on [Davis’s] business, which resulted in dismissal
of cases.” Dkt. 49 at 8. This argument goes nowhere. The settlement agreement
expressly bars all claims “that were alleged . . . in the Consumer MDL Action . . . or
that could have been alleged or asserted against any of the Released Parties.” Dkt.
45-2 at 14 (emphasis added). This is precisely why absent class members such as
Davis are afforded an opportunity to opt out of a class action settlement or present
their objections at a fairness hearing. See FED. R. CIV. P. 23(e)(4), (5)(A).

6 “Released Parties” are defined by the settlement agreement to include CenturyLink and
CenturyLink, Inc. (n/k/a Lumen Technologies, Inc.). See Dkt. 45-2 at 12, 14, 109.
Although Davis has named Lumen Technologies, Inc. as a defendant in this case, she has
not effectuated service. Nonetheless, the same grounds supporting dismissal against
CenturyLink apply to Lumen Technologies, Inc. because that entity is obviously a party to
the Consumer MDL Action settlement and final judgment.
Accordingly, because Davis is a class settlement member and her claims
qualify as “Released Claims,” the class action settlement precludes Davis from
pursuing her claims in this case.
B. RES JUDICATA INDEPENDENTLY BARS DAVIS’S CLAIMS
Separate and apart from the class action settlement, CenturyLink contends
that res judicata independently bars Davis from pursuing her claims against
CenturyLink. The final judgment in the Consumer MDL Action provides that
settlement class members, like Davis, are “barred and permanently enjoined from
asserting, instituting, or prosecuting, either directly or indirectly,” all claims
arising out of or asserted in the Consumer MDL Action. Dkt. 45-7 at 4.
As an initial matter, Davis argues that res judicata must be pled as an
affirmative defense, and that CenturyLink’s failure to do so nullifies its effort to
have the case dismissed on res judicata grounds. To be clear, CenturyLink has not
yet filed an answer to Davis’s lawsuit. CenturyLink raised the res judicata defense
in its Rule 12(b)(6) motion to dismiss. Although Davis correctly notes that a res
judicata defense must generally be pled as an affirmative defense, the Fifth Circuit
has recognized two exceptions: (1) “when a successful affirmative defense appears
on the face of the pleadings;” or (2) “when the trial court treats a Rule 12(b)(6)
motion based on res judicata as a motion for summary judgment.” Limon v.
Berryco Barge Lines, L.L.C., 779 F. Supp. 2d 577, 581–82 (S.D. Tex. 2011); see also
Moch v. E. Baton Rouge Parish Sch. Bd., 548 F.2d 594, 596 n.3 (5th Cir. 1977)
(“[I]f the trial court has treated the 12(b)(6) motion [based on res judicata] as one
for summary judgment, its dismissal under 12(b)(6) is not reversible error.”).
Because I have converted CenturyLink’s Rule 12(b)(6) motion to dismiss to a
motion for summary judgment, I can decide this case on res judicata grounds even
though CenturyLink has not filed an answer asserting res judicata as an affirmative
defense.
1. Legal Standard
Res judicata precludes a party from relitigating issues that were or could
have been raised in a previous action with a final judgment on the merits. See Allen
v. McCurry, 449 U.S. 90, 94 (1980).
A claim in a subsequent suit will be barred under res judicata
principles if: (1) the prior suit involved identical parties [or those in
privity]; (2) the prior judgment was rendered by a court of competent
jurisdiction; (3) the prior judgment was a final judgment on the
merits; and (4) the same claim or cause of action was involved in both
cases.

Retractable Techs., Inc. v. Becton Dickinson & Co., 842 F.3d 883, 898 (5th Cir.
2016).7
2. Analysis
Davis does not question the competency of the District of Minnesota’s
jurisdiction to issue the prior judgment (element two). Instead, Davis disputes the
remaining three elements.
First, Davis argues that the parties in both suits are not identical because she
was not a party to the class action lawsuit. Even if a plaintiff is not a named party

7 A choice of law question lurks in the background of this issue because “[t]he preclusive
effect of a federal-court judgment is determined by federal common law.” Taylor v.
Sturgell, 553 U.S. 880, 891 (2008). “Federal common law on choice of law dictates that
the standard for the claim preclusive effect of a federal court judgment depends on the
grounds for federal jurisdiction in the original suit.” Snow Ingredients, Inc. v.
SnoWizard, Inc., 833 F.3d 512, 521 n.9 (5th Cir. 2016). “When the original suit is based
on the federal court’s diversity jurisdiction, ‘the law that would be applied by state courts
in the State in which the federal diversity court sits’ governs the judgment’s preclusive
effect.” Id. (quoting Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508
(2001)). “But when the prior judgment was based on the court’s federal question
jurisdiction, a single federal standard applies.” Id.
Here, the judgment issued in the class action lawsuit was based on both diversity and
federal question jurisdiction. Accordingly, both Minnesota and federal law would govern
the judgment’s preclusive effect. The standards for res judicata under Minnesota and
federal law vary minimally, and the outcome under either is the same. Accordingly, under
basic conflict of laws principles, I need not undertake a choice of law analysis because the
relevant laws do not conflict. See Schneider Nat’l Transp. v. Ford Motor Co., 280 F.3d
532, 536 (5th Cir. 2002) (“If the laws of the states do not conflict, then no choice-of-law
analysis is necessary.” (quotation omitted)).
in a class action, however, she is “bound by the class action ‘if [s]he was
represented as a member of a class . . . in the original litigation.” Claunch v. Bank
of Am. Corp., No. 1:12-cv-85, 2014 WL 4101886, at *4 (S.D. Miss. Aug. 18, 2014),
aff’d sub nom. Claunch v. FIA Card Servs., N.A., 608 F. App’x 262 (5th Cir. 2015).
As already established, Davis is a member of the Consumer MDL Action.
Accordingly, the first element—that is, that the prior suit involved identical
parties—is satisfied.
Next, Davis contends that there was no final judgment on the merits in the
class action lawsuit because “[t]he relevant issues were not litigated, but rather
settled.” Dkt. 49 at 8. This argument is frivolous. The “Fifth Circuit gives consent
judgments such as the class action settlement agreement at issue here the same
finality accorded under the rules of claim preclusion.” Claunch, 2014 WL 4101886,
at *4. Therefore, the third element—that the prior judgment was a final judgment
on the merits—is met.
Finally, Davis challenges whether the fourth element of the res judicata
defense—that the same claim or cause of action was involved in both cases—has
been established. Davis argues that res judicata does not bar this lawsuit because
she has asserted various causes of action in this litigation that were not alleged in
the class action lawsuit. See Dkt. 49 at 7–8. To determine whether the same claim
or causes of action are involved in both cases, I apply a transactional test that
focuses on whether the cases “are based on the same nucleus of operative facts.”
Retractable Techs., Inc., 842 F.3d at 899 (quotation omitted). As discussed,
because Davis’s claims concerning CenturyLink’s substandard internet services
could have been brought in the class action litigation, I find that both cases arise
out of the same nucleus of operative facts. The fourth and final element has been
met.
Because Davis “was a member of the class action, res judicata also bars [her]
from maintaining the present case, which asserts claims against the same
defendants and that arise out of the same nucleus of operative facts as the class
action.” Claunch, 608 F. App’x at 264; see also Cooper v. Fed. Reserve Bank of
Richmond, 467 U.S. 867, 874 (1984) (applying res judicata to bar claims of absent
class members).
CONCLUSION
For the reasons provided above, I recommend that CenturyLink’s motion to
dismiss (Dkt. 45), which I am treating as a motion for summary judgment, be
GRANTED and that Davis’s claims against CenturyTel Broadband Services, LLC,
Central Telephone Company of Texas, and Lumen Technologies, Inc. be dismissed
as a matter of law.
The Clerk shall provide copies of this Memorandum and Recommendation
to the respective parties who have 14 days from receipt to file written objections
under Federal Rule of Civil Procedure 72(b) and General Order 2002–13. Failure
to file written objections within the time period mentioned shall bar an aggrieved
party from attacking the factual findings and legal conclusions on appeal.
SIGNED this 30th day of January 2023.

______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10676147. Public record. Not legal advice.