UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 99-20350 Summary Calendar __________________

ASHOK K. CHAUHAN; AMITA CHAUHAN; ATUL CHAUHAN; ARUN CHAUHAN,

Plaintiffs-Appellants,

versus

FORMOSA PLASTICS CORPORATION, USA,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-97-CV-3988) _________________________________________________________________ April 4, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

At issue in this pro se appeal by the four Chauhans is the

dismissal of their complaint on the basis of res judicata. An

action is barred by that doctrine if (1) the parties are identical

in both actions; (2) the prior judgment was rendered by a court of

competent jurisdiction; (3) that judgment was final on the merits;

and (4) the cases involve the same cause of action. E.g.,

Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc.,

(5th Cir. 1994). “Cause of action” is defined to include

all claims that were, or could have been, brought in a prior action

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. based on the same transaction. See Nilsen v. City of Moss Point,

Miss.,

(5th Cir. 1983)(en banc).

This is the third action arising out of a debt owed by

Appellant Ashok Chauhan’s company, Kunstoplast of America, Inc.

(KOA), to Formosa Plastics Corporation, USA. Formosa sued in Texas

state court in 1995, resulting in a default judgment against KOA

for breach of contract (failure to pay for delivered goods). Ashok

Chauhan is a resident of India. He and KOA moved for a new trial;

one was granted Chauhan. His counterclaims against Formosa

included claims arising out of its collection efforts. The state

court held that Ashok Chauhan personally guaranteed KOA’s debt and

was, therefore, liable to Formosa for approximately $20 million.

The judgment was upheld on appeal.

The four Chauhans (Ashok Chauhan and his son, wife, and

brother) filed suit in federal court in 1996 against Formosa,

asserting that its attempts to collect the state-court judgment in

India resulted in defamation, abuse of process, and intentional

infliction of emotional distress. Ashok Chauhan’s claims were

dismissed based on res judicata; the claims of the other three

Chauhans were dismissed for failure to state a claim and by summary

judgment.

The current action arises from Ashok Chauhan’s assertions that

Formosa made fraudulent misrepresentations in the state-court

proceedings and the Chauhans’ claim of tortious conduct arising

from Formosa’s attempts to collect the state-court judgment in the

United Kingdom.

- 2 - The Chauhans maintain that the factual bases for the three

lawsuits differ. See Barr v. RTC,

(Tex.

1992)(Texas analysis of res judicata); Hogue v. Royse City, Tex.,

(5th Cir. 1991)(Texas standard to be used to

analyze res judicata). They contend also that factual

misstatements by the magistrate judge, adopted by the district

court, must negate the res judicata decision.

These claims are frivolous. The three actions arise from the

same cause of action – the failure of KOA and Ashok Chauhan to pay

a debt owed Formosa, its attempts to collect that debt, and the

Chauhans’ complaints arising from those attempts.

The Chauhans claim that, because the magistrate judge denied

Formosa’s request to take judicial notice of documents related to

the state-court proceeding and the first federal action, he could

not later take judicial notice of those proceedings and the

district court could not adopt his recommendation. This contention

is also frivolous. A court may take judicial notice at any time,

including sua sponte. FED. R. EVID. 201(c), (e). Both proceedings

were matters of public record, which may be considered in resolving

a motion to dismiss. Davis v. Bayless,

, 372 n.3 (5th

Cir. 1995).

The Chauhans assert that the magistrate judge improperly made

recommendations without conducting an oral hearing as required by

(b)(1). This assertion is also frivolous; § 636(b)

does not mandate a hearing.

- 3 - Because the Chauhans have raised no arguably meritorious

issues on appeal, this appeal is frivolous and is DISMISSED. See

Howard v. King,

(5th Cir. 1983); 5TH CIR. R.

42.2.

Formosa has moved for sanctions under FED. R. APP. P. 38. That

Rule permits our awarding double costs and other just damages to

an appellee if an appeal is frivolous. Sanctions are not lightly

imposed, and this court is particularly cautious when, as here, the

non-movant is pro se. Clark v. Green,

(5th Cir.

1987). On the other hand, pro se litigants are not granted

“unrestrained license to pursue totally frivolous appeals”.

Sanctions are in order. But, given the extremely large debt

owed Formosa, monetary sanctions will not be imposed. Instead, the

Chauhans are barred from filing any pro se pleading or appeal here

or in any court subject to our jurisdiction arising from the

efforts of Formosa to satisfy the judgment in Formosa Plastics

Corp., USA v. Kunstoplast of America, Inc., No. 95-08981 (Tex.,

127th Jud. Dist. Ct., 30 Nov. 1995), without advance written

permission of a judge of the forum court.

APPEAL DISMISSED; SANCTIONS IMPOSED

- 4 -