Case: 18-60083      Document: 00514791513         Page: 1    Date Filed: 01/11/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 18-60083                        January 11, 2019
                                                                            Lyle W. Cayce
MEC, INCORPORATED, doing business as The Pony,                                   Clerk


              Plaintiff - Appellant

v.

LOWNDES COUNTY BOARD OF SUPERVISORS; LOWNDES COUNTY
CHANCERY CLERK; LOWNDES COUNTY; JOHN DOES 1-10,

              Defendants - Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:16-CV-151


Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       This case requires the court to determine whether res judicata bars the
Plaintiff MEC Incorporated’s case because of its similar suit pursued in state
court. The court concludes that because all of res judicata’s elements are met
and MEC received a full and fair opportunity to litigate in state court, the
district court properly held that res judicata applies. Accordingly, this court
AFFIRMS.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-60083       Document: 00514791513         Page: 2     Date Filed: 01/11/2019



                                       No. 18-60083
                                    BACKGROUND
       This case began as a dispute over a nightclub. MEC operates an adult
entertainment club called The Pony in Lowndes County, Mississippi. In 2013,
the county passed an ordinance restricting the business hours of such places.
Under the ordinance, nightclubs may only operate from noon to 1:00 a.m. The
ordinance requires all customers to leave nightclubs by 1:30 a.m. and the
“owner, management, employees and band will only be allowed inside the
building after 1:30 a.m. to remove equipment.”
       The ordinance provides that restaurants and/or bars may apply for an
exemption to these restrictions if they meet certain conditions. MEC applied
to the Lowndes County Night Club Regulations Committee for such an
exemption. The Committee, however, denied the request. MEC appealed the
Committee’s decision to the Defendant Lowndes County Board of Supervisors.
On December 7, 2015, the Board also denied the exemption.
       MEC appealed the Board’s decision to the Circuit Court of Lowndes
County, Mississippi, on December 16, 2015. 1 In the Circuit Court, MEC argued
that the Board’s decision should be reversed because it “violated MEC’s
constitutional substantive due process rights, took away property rights of
MEC in violation of the U.S. and Mississippi Constitution, [and] acted
arbitrarily and capriciously in denying the exemption application without
substantial evidence supporting their decision.”                  MEC contended that,
although the Board had afforded MEC procedural due process, it had denied




       1 Under Mississippi law, a party wishing to appeal a county board of supervisors’
decision has to file an appeal in that county’s Circuit Court within ten days of the decision.
See Miss. Code Ann. § 11-51-75 (2012). Essentially, the Circuit Court, although generally a
trial court, functions as an appellate court in these situations. See 

was
changed in the 2018 Mississippi legislative session, affecting how the appeal is commenced
and the preparation of the record. See 2018 Miss. Laws Ch. 448 (effective July 1, 2018).
References to the statute are to the version that existed at the time of the 2015 appeal.
                                              2
    Case: 18-60083    Document: 00514791513     Page: 3   Date Filed: 01/11/2019



                                 No. 18-60083
MEC substantive due process. Without directly saying so, MEC also appeared
to contend that the Board’s actions amounted to an unlawful taking.
      The Circuit Court understood MEC’s arguments as asserting that “it has
been deprived of its due process rights because the ordinance takes from [MEC]
a portion of [its] right to use [its] property and that the Board[’s] decision to
deny [the] request for an exemption was not supported by sufficient evidence
and was, therefore, arbitrary and capricious.” The Circuit Court held that
because no taking occurred, no due process violation occurred. It also ruled
that the Board’s decision was supported by substantial evidence and was not
arbitrary and capricious. The Circuit Court did not separately address MEC’s
substantive due process claim. It dismissed MEC’s appeal with prejudice.
      MEC then brought the present suit in federal district court, arguing that
the ordinance amounted to an unlawful taking of MEC’s property and that the
Defendants violated MEC’s substantive and procedural due process rights.
The Defendants moved for summary judgment, asserting that both res judicata
and collateral estoppel barred MEC’s claims because they were previously
litigated in the Mississippi Circuit Court. The district court granted summary
judgment on that basis. MEC timely appealed.
                            STANDARD OF REVIEW
      “The res judicata effect of a prior judgment is a question of law that this
court reviews de novo.” Test Masters Educ. Services, Inc. v. Singh, 

, 571 (5th Cir. 2005).
                                DISCUSSION
      The primary issue on appeal is whether res judicata bars MEC’s case.
MEC makes two arguments to that end. First, it contends that the elements
of res judicata under Mississippi law have not been met. Second, MEC argues
that it was denied a full and fair opportunity to litigate in the state court, so


                                       3
      Case: 18-60083      Document: 00514791513           Page: 4    Date Filed: 01/11/2019



                                       No. 18-60083
the state court’s judgment should not have preclusive effect. 2 The court will
address each contention in turn. In the alternative, MEC argues that we could
also affirm on the basis of collateral estoppel. That also will be discussed.
I.     Res Judicata’s Elements
        The court concludes that all of res judicata’s elements are met, with one
qualification that will be mentioned. Res judicata is a doctrine that bars claims
that were litigated or should have been litigated in a previous action. Hill v.
Carroll Cty., 

, 1084-85 (Miss. 2009).                    “To determine the
preclusive effect of a state court judgment in a federal action, federal courts
must apply the law of the state from which the judgment emerged.” Black v.
N. Panola School Dist., 

, 588 (5th Cir. 2006) (quotation marks
omitted). Accordingly, Mississippi law applies to this case. Under Mississippi
law, “it is frequently recognized that the rule of res judicata applies when an
order or decision of an administrative agency in the exercise of a quasi-judicial
or adjudicatory power has been affirmed by a reviewing court.” City of Jackson
v. Holliday, 

, 527-28 (Miss. 1963) (quotation marks omitted).
       “For the bar of res judicata to apply in Mississippi there are four
identities which must be present: (1) identity of the subject matter of the
action; (2) identity of the cause of action; (3) identity of the parties to the cause
of action; and (4) identity of the quality or character of a person against whom
the    claim     is   made.”      Harrison         v.   Chandler-Sampson         Ins.,    Inc.,

, 232 (Miss. 2005). “In addition to the four identities, a fifth
requirement is that the prior judgment must be a final judgment that was
adjudicated      on    the    merits.”       EMC        Mortg.    Corp.    v.   Carmichael,

, 1090 (Miss. 2009). The court will address each requirement.


       2Although   MEC frames this argument as a contention that one of res judicata’s
elements is not satisfied, the court will explain below that it is more accurately characterized
as a due process argument.
                                               4
    Case: 18-60083     Document: 00514791513     Page: 5   Date Filed: 01/11/2019



                                  No. 18-60083
      A.    Identities of the Subject Matter and the Cause of Action
      The first two identities, subject matter and cause of action, are related.
Both are met here. The Supreme Court of Mississippi has “defined subject
matter as the ‘substance’ of the lawsuit.” 

. To illustrate,
in Hill, the court explained that the “subject matter presented in both the
federal and the state suits is the same. In each suit, the subject matter consists
of the method of restraint used by Carroll County deputies and the manner in
which the deputies transported [the decedent] to [jail].” 

of action identity is similar. “The identity referred to in this
portion of the analysis is the identity of the underlying facts and circumstances
upon which a claim has been brought.”               

(emphasis in original) (quotation marks omitted). The Mississippi Supreme
Court has “further noted that in cases involving claim preclusion, this
distinction [between a different claim as opposed to an additional legal theory]
is indeed very important and requires that the parties, as well as the courts,
distinguish between what body of fact constitutes a claim and what legal
theories attach to that body of fact.” 

(alteration in
original) (quotation marks omitted). Indeed, in interpreting Mississippi law,
this court has recognized that “in the res judicata context, a cause of action is
a group of operative facts that entitles a petitioner to seek remedy in court.”

.
      To illustrate how the subject matter and cause of action identities work
in tandem, this court in Black explained:
      [T]he subject matter of both the first and second suit can be
      described as the sexual assault of Jane Doe. The causes of action
      are the underlying facts giving rise to Jane Doe’s claims: her sexual
      assault at the hands of two boys in her unsupervised classroom.
      Identical factual allegations of sexual assault support the legal
      theories in both lawsuits. Accordingly, there are identities of
      subject matter and cause of action.
                                        5
    Case: 18-60083     Document: 00514791513      Page: 6   Date Filed: 01/11/2019



                                  No. 18-60083

identity of subject matter turns on a general
characterization of the suit. It is the substance of the action. By contrast,
identity of cause of action is defined by the underlying group of facts giving rise
to a claim.” 

      A complication from the usual analysis of these identities is that the
prior litigation relevant to this case was in the context of an appeal from a local
governing board’s decision to a Mississippi Circuit Court. See Miss. Code Ann.
§ 11-51-75 (2012). The issues that can be raised and the relief that can be
granted in such an appeal are limited.        On an appeal from a county or
municipal governing board, the Circuit Court will consider only whether the
board’s decision “(1) was beyond its scope or power; (2) violated the
constitutional or statutory rights of the aggrieved party; (3) was not supported
by substantial evidence; or (4) was arbitrary or capricious.”        McAdams v.
Perkins, 

, 1261 (Miss. 2016). The Circuit Court can either
uphold the decision or reverse and “render such judgment as the board or
municipal authorities ought to have rendered.” § 11-51-75 (2012).
      A limitation on litigation invokes the issue that the res judicata bar
applies only to those “grounds for, or defenses to recovery that were available
to the parties in the first action.”    

(quoting Alexander v. Elzie, 

, 910 (Miss. 1992)) (emphasis added).
As we already pointed out, the “grounds for recovery” asserted now were all
available in the earlier appeal. Indeed, the current constitutional claims were
asserted in the appeal.     The Circuit Court, performing its appellate role,
rejected that any violation of the Constitution occurred.
      Nonetheless, even though the legal arguments being made now were
considered and rejected by the state court, the remedy of money damages was
not available as part of the appeal from the Board’s decision.             Such a

                                        6
    Case: 18-60083     Document: 00514791513      Page: 7   Date Filed: 01/11/2019



                                  No. 18-60083
restriction, if it were not ameliorated, raises a problem discussed by the
Mississippi Supreme Court in Chandler-Sampson. The court quoted one of the
exceptions to res judicata from the Restatement of Judgments, though not one
relevant to us. 

(a prior judgment will not
bar later litigation when “the defendant consented to the splitting of the
plaintiff’s cause of action” (quoting Restatement (First) of Judgments § 62(c)
(1942))). A different exception applies here: “where the procedure adopted by
the plaintiff precluded his recovery for the entire claim and this procedure was
essential to preserving his rights.” Restatement (First) of Judgments § 62(a).
      At most, proving as part of the appeal in state court that a constitutional
violation occurred would have led the Circuit Court to set aside the Board
decision and enter the correct decision. The opposite occurred, namely, MEC
asserted and lost the argument that its constitutional rights had been violated
by the Board of Supervisors. Were the Mississippi Supreme Court to apply the
Restatement exception that arises when the entire claim could not be brought
in the first suit, it could be it would hold that the identities of subject matter
and cause of action were not identical in the appeal and in the current suit.
      We have an initial and then final response to that possibility. First, the
prior rejection by the state court of the identical legal argument being made
now invokes the doctrine of collateral estoppel in circumstances similar to
those in Schuster v. Martin, 

(5th Cir. 1988). There, the plaintiff
claimed a violation of his due process rights and sought an injunction in a
Mississippi state court. 

The state court held there was no due
process violation. 

then brought suit in federal court under
§ 1983 for damages, asserting the same due process arguments. 

The plaintiff argued “that because the relief sought is different, the issue
litigated is necessarily different.” 

(emphasis in original). This court
disagreed: “although the damage issues were not, and probably could not be,
                                        7
    Case: 18-60083     Document: 00514791513       Page: 8   Date Filed: 01/11/2019



                                   No. 18-60083
litigated in the prior case, they cannot now serve as an independent basis for
a new lawsuit if the underlying theory of recovery, i.e., that due process was
violated, is precluded from relitigation.” 

more to the doctrine of
collateral estoppel than we need to discuss here because of our next point.
      As we analyze in greater detail in the final section of this opinion, the
Mississippi Supreme Court has held that other claims, perhaps in the nature
if not form of a separate suit, can be presented and consolidated in the Circuit
Court for resolution with the appeal from a board of supervisors. See Falco
Lime, Inc., v. Mayor & Aldermen of City of Vicksburg, 

, 717-20
(Miss. 2002).   Not only could other claims be brought, they were brought by
MEC. In its amended bill of exceptions, it claimed that a “loss of property and
liberty interest[s]” is the central issue in this case. More specifically, it said it
“is making a ‘substantive’ due process claim.”         As for relief, MEC sought
specifically the exemption for its business and “any other relief to which it is
entitled.”
      We conclude that MEC could and did join its additional claims to the
more limited claims properly made in an appeal from the Board. The subject-
matter and cause-of-action identities are met. MEC’s case in state court and
this case have the same subject matter, namely, the passage of the county
ordinance and MEC’s attempts to receive an exemption from it. Additionally,
the underlying facts and circumstances upon which both suits were brought
are the same: the county passed an ordinance restricting nightclub operating
hours, MEC went before the Board of Supervisors attempting to receive an
exemption, and the county denied the exemption. Accordingly, the subject
matter and cause of action identities are met.




                                         8
     Case: 18-60083    Document: 00514791513      Page: 9    Date Filed: 01/11/2019



                                   No. 18-60083
      B.     Identities of the Parties and the Quality or Character of the
             Defendants
      Both of these identities are met because MEC has conceded them. In
explaining the identity of the parties, the Mississippi Supreme Court has held
that “[a]lthough identity of the parties is a necessary element of res judicata,
this Court has repeatedly held that strict identity of parties is not necessary
for either res judicata or collateral estoppel to apply, if it can be shown that a
nonparty stands in privity with the party in the prior action.”               

-91 (quotation marks omitted).          In discussing the final
identity, the court explained that “[a]lthough this Court has not explicitly
defined the identity of the quality or character of a person against whom the
claim is made, examples of this identity and its application exist.”           

. One such example is that the Mississippi Supreme Court
“found the fourth identity to be met, because the named defendant was the
same as in the previous action.” 

      In any event, MEC conceded in both the district court and in this court
that these two identities are met. “A party’s concession of an issue means the
issue is waived and may not be revived.” 

(quotation
marks omitted). In short, all four identities are met.
      C.     Final Judgment on the Merits
      The Mississippi Circuit Court’s judgment represents a final judgment on
the merits, satisfying res judicata’s fifth requirement. “In addition to the four
identities, a fifth requirement is that the prior judgment must be a final
judgment that was adjudicated on the merits.” 

. “A
final judgment on the merits is [a] judgment based on the evidence rather than
on   technical   or   procedural   grounds.”      Estate    of   White   v.   White,

, 317 (Miss. 2014) (quotation marks omitted) (alteration in
original).   “While our prior cases have considered whether a judgment

                                        9
      Case: 18-60083   Document: 00514791513     Page: 10   Date Filed: 01/11/2019



                                  No. 18-60083
constituted a ‘final judgment on the merits’ on a case-by-case-basis, a judgment
generally will not be considered a ‘final judgment on the merits’ when the first
case was dismissed for a procedural defect or some other technical ground that
prevented the court from reaching the merits of the case.” 

Mississippi Circuit Court entered a final judgment on the
merits. It did not dismiss the case on a technical or procedural ground. Rather,
it reviewed the evidence and ruled on the merits, explaining, in its view, that
because no taking occurred, no deprivation of due process occurred. It further
ruled that the Board’s decision to deny the restaurant exemption was
supported by substantial evidence and was not arbitrary or capricious. The
Circuit Court then dismissed the case with prejudice. Thus, it entered a final
judgment on the merits.
II.     Full and Fair Opportunity to Litigate
        The court concludes that MEC received a full and fair opportunity to
litigate in the Circuit Court. Accordingly, the state court’s judgment retains
its preclusive effect. MEC contends that the Circuit Court’s appellate process
of reviewing the Board’s decision did not allow for a full and fair opportunity
to litigate because it lacked “the hallmarks of actual litigation” including
discovery, “deposition transcripts with cross-examination allowed of adverse
parties” and “documents produced subject to subpoena power of the court.”
Although MEC might not have enjoyed these aspects of litigation in the Circuit
Court, MEC was not denied a full and fair opportunity to litigate.
         The Supreme Court has long held that 28 U.S.C. § 1738 “requires
federal courts to give the same preclusive effect to state court judgments that
those judgments would be given in the courts of the State from which the
judgments emerged.”       Kremer v. Chem. Const. Corp., 

, 466,

, 1889 (1982). A narrow exception exists, however, if a party
received no “full and fair opportunity to litigate” his claims in the state court.
                                       10
    Case: 18-60083    Document: 00514791513       Page: 11   Date Filed: 01/11/2019



                                  No. 18-60083

n.22. But showing that a party enjoyed a
full and fair opportunity to litigate requires only that “state proceedings . . . do
no more than satisfy the minimum procedural requirements of the Fourteenth
Amendment’s Due Process Clause.” 

, 102 S. Ct. at 1897. Satisfying
these minimum procedural requirements is enough for state court judgments
to retain their preclusive effect in federal courts.
      This court has had little occasion to elaborate on this subject, but “the
ordinary conclusion will be that due process was satisfied and that preclusion
cannot be defeated by dissatisfaction with the quality of the state proceedings.”
18B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 4471.2 (2d ed.) (Sept. 2018 update). Importantly, that one “failed to avail
himself of the full procedures provided by state law does not constitute a sign
of their inadequacy.”     

, 102 S. Ct. at 1899; see
Carter v. City of Emporia, Kan., 

, 621 (10th Cir. 1987) (“If
plaintiffs do not avail themselves of the full procedures provided by state law,
this does not constitute a sign of their inadequacy.”) (quotation marks omitted);
Krison v. Nehls, 

, 348 (7th Cir. 1985) (“The fact that the prior state
action was in the nature of certiorari to review an administrative proceeding
does not deprive the earlier action of its preclusive effect if the court had the
authority to review substantive legal claims beyond administrative review.”)
(quotation marks omitted); Wright & Miller § 4471.2 (“[F]ailure to take
advantage of available state procedures does not establish a denial of due
process.”); see also Parratt v. Taylor, 

, 544, 

, 1917
(1981), overruled on other grounds by Daniels v. Williams, 

, 330-
31, 

, 664 (1986) (“Although the state remedies may not provide
the respondent with all the relief which may have been available if he could
have proceeded under § 1983, that does not mean that the state remedies are
not adequate to satisfy the requirements of due process.”).
                                        11
    Case: 18-60083        Document: 00514791513          Page: 12      Date Filed: 01/11/2019



                                        No. 18-60083
       Here, the Mississippi appellate procedure that MEC followed comports
with due process. The Mississippi statute stated that “[a]ny person aggrieved
by a judgment or decision of the board of supervisors . . . may appeal” to an
appropriate Mississippi Circuit Court. Miss. Code Ann. § 11-51-75. To do so,
a party prior to the 2018 amendments was to file a bill of exceptions that “may
embody the facts, judgment and decision,” and the Circuit Court “shall . . . hear
and determine the . . . case as presented by the bill of exceptions as an appellate
court.” 

is typical in appellate courts, no discovery or testimony outside
the bill of exceptions is permitted. See Falco 

.
       Sometimes, a party would file both a bill of exceptions, i.e., an appeal,
and a separate “ordinary complaint” in the Circuit Court regarding the same
underlying facts. 

720. In such instances, the Mississippi Supreme
Court has explained that “[w]here the circuit court finds before it a § 11-51-75
appeal that arises out of a common nucleus of operative fact with claims that
would ordinarily be resolved by a trial de novo, the better procedure is to
function first in its appellate capacity and hear the § 11-51-75 appeal based on
the bill of exceptions, and then proceed to the other claims (and the evidence
related to them) only if the resolution of the appeal leaves them unresolved.”

In other words, after a party completes the § 11-51-75 appellate
process, he may then present additional evidence on other claims if they
remain unresolved. 

case, MEC filed a bill of exceptions appealing the Board’s decision.
The bill of exceptions asserted that the Board’s restaurant exemption denial
was not based on substantial evidence and was arbitrary and capricious. It


       3   Among the substantial revisions by the 2018 Mississippi Legislature is the
requirement that an appeal be initiated by the filing of a notice of appeal and not by the filing
of a bill of exceptions, after which the local clerk in due course must assemble a record. See
2018 Miss. Laws Ch. 448, § 1 (effective July 1, 2018). Such changes have no effect on this
case.
                                              12
    Case: 18-60083       Document: 00514791513          Page: 13     Date Filed: 01/11/2019



                                       No. 18-60083
further contended that the Board’s decision amounted to an unlawful taking
and also violated MEC’s substantive due process rights.
       MEC acknowledged in its appellate briefing that Falco Lime would have
permitted it to file both its appellate bill of exceptions to allege the Board
decision violated its constitutional rights and also a separate 42 U.S.C. § 1983
action seeking damages and other relief for the claimed constitutional
violations. (“[T]he Falco Lime holding would have permitted MEC to file both
actions in state court simultaneously.”). Had MEC done so, it could have first
argued in its § 11-51-75 appeal that the Board’s decision was arbitrary and
capricious or lacked substantial evidence, as MEC so argued, and then it could
have presented new evidence regarding its constitutional claims in the
separate § 1983 action. Falco 

. In short, that one “failed
to avail himself of the full procedures provided by state law does not constitute
a sign of their inadequacy.” 

, 102 S. Ct. at 1899. For
that reason, the Mississippi appellate procedure did not violate due process,
and the Circuit Court’s judgment retains its preclusive effect. 4
       Finally, despite admitting that it could have filed both the appeal and
the § 1983 claim simultaneously, MEC nonetheless argues that following Falco
Lime’s procedure would have “effectively placed conditions on the vindication
of MEC’s federal right to file a § 1983 claim.” For this proposition, MEC cites
Felder v. Casey, 

, 

(1988). That case is inapposite.


       4 MEC also argues that res judicata should not apply because the Circuit Court did
not rule on the constitutionality of the county ordinance “because of its erroneous ruling that
[MEC] did not challenge the constitutionality of the ordinance or the Board’s legal right to
enact such an ordinance.” (quotation marks omitted). In other words, MEC alleges that the
Circuit Court misunderstood its argument and ruled erroneously. That a state court may
have ruled incorrectly, however, does not alter the state judgment’s preclusive effect. See
Matter of Brady, Tex., Mun. Gas Corp., 

, 219 (5th Cir. 1991); Davis v. Chase
Home Finance, L.L.C., 597 F. App’x 249, 253 (5th Cir. 2015) (per curiam) (“[E]ven if the
chancery court’s determination . . . was erroneous, its preclusive effect on this court remains
binding.”).
                                             13
   Case: 18-60083     Document: 00514791513      Page: 14   Date Filed: 01/11/2019



                                  No. 18-60083
In Felder, the Wisconsin Supreme Court held that the state’s notice-of-claim
statute applied to § 1983 actions brought in state court. 

108 S. Ct.
at 2304-05. That statute provided that before suing a state entity or officer in
state court, a plaintiff “must notify the governmental defendant of the
circumstances giving rise to the claim, the amount of the claim, and his or her
intent to hold the named defendant liable.” 

108 S. Ct. at 2304. The
statute further required that, “in order to afford the defendant an opportunity
to consider the requested relief, the claimant must refrain from filing suit for
120 days after providing such notice.” 

Court concluded that the notice-of-claim statute was
preempted when § 1983 claims were brought in Wisconsin courts. 

108 S. Ct. at 2307. The Court reasoned that “[i]n enacting § 1983, Congress
entitled those deprived of their civil rights to recover full compensation from
the governmental officials responsible for those deprivations. A state law that
conditions that right of recovery upon compliance with a rule designed to
minimize governmental liability, and that directs injured persons to seek
redress in the first instance from the very targets of the federal legislation, is
inconsistent in both purpose and effect with the remedial objectives” of § 1983.

108 S. Ct. at 2314.
      The Falco Lime procedure is entirely distinguishable. It is not a rule
designed to minimize governmental liability; it is rather meant to ensure that
typical rules of appellate procedure such as confining evidence to the record on
appeal are followed. Falco 

. Further, it does not require
a plaintiff to request relief from a state official in the first instance—at least
not regarding § 1983 claims. Rather, Falco Lime explains that, after hearing
an § 11-51-75 appeal, a Mississippi court should proceed to hear new claims,
including, as MEC admits, § 1983 claims. Accordingly, § 11- 51-75 does not


                                       14
    Case: 18-60083        Document: 00514791513          Page: 15     Date Filed: 01/11/2019



                                       No. 18-60083
place preempted restrictions on § 1983. In short, res judicata precludes MEC’s
suit. 5
                                     CONCLUSION
          For the foregoing reasons, the judgment of the district court is
AFFIRMED.




         In addition to its res judicata arguments, MEC contends that “genuine issues of
          5

material fact remain as to whether plaintiff’s constitutional rights were violated by the
enactment of the ordinance and the denial of the restaurant exemption.” Yet, nowhere in
MEC’s opening or reply brief does it show that a dispute of material fact exists. See Fed. R.
Civ. P. 56(a). In any event, MEC’s response to the Defendants’ motion for summary judgment
never cites any depositions, affidavits, or other supporting materials to show that any fact “is
genuinely disputed.” Fed. R. Civ. P. 56(c)(1). Thus, MEC has not shown that any genuine
dispute of material fact exists.
                                              15