United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT FILED February 21, 2006

No. 05-30633 Charles R. Fulbruge III Summary Calendar Clerk

GULF SOUTH MEDICAL AND SURGICAL INSTITUTE; BURKS-FARBER CLINICS; GEORGE A. FARBER, SR., M.D., Plaintiffs-Appellants,

v.

AETNA LIFE INSURANCE CO., Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana (2:04-CV-02868-MLCF-DEK)

Before KING, WIENER, and DEMOSS, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants Gulf South Medical and Surgical

Institute, Burks-Farber Institute, and George A. Farber, Sr., M.D.

(collectively “appellants”) appeal the district court’s orders

dismissing their complaint for failure to state a cause of action

and imposing sanctions under Rule 11 of the Federal Rules of Civil

Procedure. We affirm the order of dismissal but vacate the

sanctions order.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.

FACTS AND PROCEEDINGS

In 1993, appellants sued Defendant-Appellee Aetna Life

Insurance Co. (“Aetna”) and Lafarge Corporation in a Lousiana state

court to recover medical charges to which appellants claimed they

were entitled but wrongly denied, alleging defamation and abuse of

discretion in the denial of benefits. The claims at issue were for

dermatological treatment of Edwin Delaney between August 1988 and

June 1990. Following removal to federal court, the action was

dismissed by summary judgment, and we affirmed on appeal.

In September 2004, appellants again sued Aetna in state court,

again alleging that Aetna wrongfully withheld the same payments for

Delaney’s dermatological treatment rendered during precisely the

same period. This time, appellants asserted fraudulent concealment

as their legal theory, basing their theory on a class action

pending in Florida against Aetna which involves patients treated

between August 4, 1990 and June 23, 2004. Again, this new state

court action was removed to federal court, and the district court

again dismissed under Rule 12()(6)b, albeit for reasons of res

judicata. In addition, the court imposed sanctions “for filing

claims which have already been resolved” by the court. It is from

the dismissal and sanctions orders that appellants appeal.

2 II.

ANALYSIS

A. Rule 12(b)(6) Dismissal

We review de novo a district court’s dismissal under Rule

12(b)(6).1 We construe the complaint liberally in favor of the

appellants, and we will affirm only if it appears beyond doubt that

they can state no cause of action.

Res judicata bars an action when a court of competent

jurisdiction has rendered a prior judgment in an action in which

(1) the parties are the same, (2) there has been a final judgment

on the merits, and (3) the same cause of action is involved.2 We

use a transactional test to determine whether two complaints

involve the same cause of action.3 If the same nucleus of

operative facts underlies both actions, they involve the same cause

of action.4 “The substantive theories advanced, forms of relief

requested, types of rights asserted, and variations in evidence

needed do not inform this inquiry.”5

1 Beanal v. Freeport-McMoran, Inc.,

(5th Cir. 1999). 2 Test Masters Ed. Services, Inc. v. Singh,

, 571 th (5 Cir. 2005). 3 Id. See also Agrilectric Power Partners, Ltd. v. General Elec. Co.,

(5th Cir. 1994). 4 Agrilectric,

. 5

3 The instant action arises out of the same nucleus of operative

facts as did the 1993 suit. Appellants’ allegations in the second

petition assert claims for the same payments that were at issue in

the first lawsuit. That they now claim entitlement to the payments

under a new theory —— fraudulent concealment —— does not insulate

the present complaint from res judicata. As the district court

correctly noted, appellants fail to demonstrate how a class action

currently pending in Florida involving claims asserted on behalf of

different patients during a different period affects the issues and

disposition of this case. We affirm the district court’s dismissal

of the second, removed state action.

B. Sanctions

We review a district court’s imposition of sanctions for abuse

of discretion.6 Rule 11 does not apply to filings made in state

court.7 “To uphold sanctions under [R]ule 11, we must be able to

point to some federal filing in which the sanctioned attorney

violated that rule.”8 Here, the district court imposed sanctions

in the form of attorney’s fees and costs for appellants’ “filing

6 Whitehead v. Food Max of Mississippi, Inc.,

(5th Cir. 2003). 7 Edwards v. Gen. Motors Corp.,

(5th Cir. 1998) (noting that “[t]here is no indication, in the text of the rule, that it applies to filings in any court other than a federal district court” and declining to uphold a sanctions award to the extent that it punished the filing of a state court petition). 8

(emphasis added).

4 claims which have already been resolved by the Court.” In other

words, the filing for which the district court sanctioned

appellants was the petition filed in the second lawsuit.

Significantly, however, appellants filed their second petition in

Louisiana state court, as they had in the first case. We may not

uphold an award of sanctions imposed under Rule 11 on the basis of

state court filings. As a matter of law, then, we must hold that

the district court abused its discretion when it imposed sanctions

in this case based solely on a state court filing.

Aetna attempts to preserve its sanctions award by re-

characterizing the basis of the sanctions as appellants’ response

to Aetna’s motion to dismiss, rather than to appellants’ filing of

the lawsuit itself. Aetna’s argument is unpersuasive. The

district court order makes perfectly clear that it imposed

sanctions for appellants’ filing of the second suit. Furthermore,

review of Aetna’s district court motion for sanctions belies its

current re-characterization. Aetna filed that motion based solely

on the assertion that the suit was filed in violation of Rule 11;

yet that suit was filed in state court, then removed by Aetna. We

are constrained, therefore, to vacate the imposition of sanctions.

5 III.

CONCLUSION

For the foregoing reasons, the district court’s summary

judgment of dismissal is affirmed, but its sanction order is

vacated.

AFFIRMED in part, and VACATED in part.

6