Swiber Marine Mexico, S.A. De C.V. v. Jensen et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SWIBER MARINE MEXICO, S.A. DE C.V., §
Plaintiff, §
§
v. § CIVIL ACTION NO. 4:25-CV-01800
§
JIM JENSEN AND DAN-BUNKERING §
(AMERICA) INC., §
Defendants. §
MEMORANUDM AND RECOMMENDATION
This maritime case is before the Court on Defendants’ Motion to Dismiss
(ECF 22). The Court recommends the Motion to Dismiss be granted and Plaintiff’s
claims against Dan-Bunkering (America) Inc. be dismissed with prejudice pursuant
to Federal Rule of Civil Procedure 41(a)(1)(B) and res judicata.1
I. Factual and Procedural Background
This dispute began when Ranger Offshore, a Houston-based offshore
construction company, did not pay for $405,999.01 of fuel purchased on September
11, 2018 from Defendant Dan-Bunkering (America) Inc. (D-B) for delivery to an
offshore support vessel, the M/V Swiber ADA (Vessel). Plaintiff, Swiber Marine
Mexico S.A. De C.V. (Swiber Marine), represents in this case that it owns the
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 19.
United States District Court
Southern District of Texas
ENTERED
December 09, 2025
Nathan Ochsner, Clerk
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Vessel. ECF 1-3 ¶ 5.1. On January 28, 2020, D-B filed a lawsuit in federal court to
recover payment from the entity it believed owned the Vessel at the time, Swiber
Offshore Mexico S.A. de C.V. (Swiber Offshore). See Dan Bunkering (America),
Inc. v. Swiber Offshore Mexico et al., Civil Action No. 4:20-cv-0321 (Case I).
Swiber Offshore moved to dismiss the federal action for lack of personal
jurisdiction. Id. (ECF 40; ECF 60). On September 2, 2020, prior to the court’s
jurisdictional ruling and before Swiber Offshore filed an answer, D-B filed a Notice
of Dismissal without prejudice pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). Id. (ECF 62).
D-B instituted proceedings in Mexico and caused the Vessel to be arrested in
Mexico on September 11, 2020 for the alleged non-payment for fuel (Case II). ECF
28-1 ¶¶ 5.4, 5.7. Swiber Offshore filed a counterclaim against D-B in the Mexican
proceeding for damages from the wrongful seizure, essentially the same claim for
damages that Swiber Marine makes in this case. On April 17, 2024, the Mexican
Court dismissed Swiber Offshore’s counterclaim for lack of prosecution. ECF 24 at
10.
Meanwhile, before the Mexican proceedings had finally concluded, Swiber
Offshore filed a lawsuit against D-B in Texas state court on November 2, 2022
seeking recovery for the allegedly wrongful arrest of the Vessel. See Swiber
Offshore Mexico S.A. de C.V. v. Dan-Bunkering (America) Inc., Cause No. 2022-
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72317 in the 270th District Court, Harris County (Case III). In January 2025, Swiber
Offshore voluntarily dismissed Case III without prejudice under a tolling agreement
with D-B that extended the statute of limitations on the parties’ claims to April 18,
2025. ECF 17-5. Neither Swiber Marine nor Jim Jenson, the former CEO of D-B,
are parties to the Tolling Agreement. Id.
Two days prior to expiration of the tolling agreement, on April 16, 2025,
Swiber Marine initiated a lawsuit against D-B, Swiber Marine Mexico, S.A. de C.V.
v. Dan-Bunkering (America), Inc., Cause No. 2025-26931 in the 55th District Court,
Harris County (Case IV). The same day, D-B removed Case IV to federal court,
where it was assigned to District Judge Charles Eskridge as Case No. 4:25-cv-1763.
The next day, on April 17, 2025, Swiber Marine voluntarily dismissed Case IV.
On April 18, 2025, the last day of the tolled limitations period, Swiber Marine
again filed a case in state court Harris County. D-B promptly removed the case to
federal court, where it was assigned to District Judge George Hanks as Case No.
4:25-cv-1800 (Case V). ECF 1.
The Court has recommended that Plaintiff’s Motion to Remand be denied and
Plaintiff’s claims against Jim Jenson be dismissed without prejudice due to improper
joinder. ECF 31. This Memorandum and Recommendation addresses D-B’s Motion
to Dismiss based on res judicata.
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II. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). In reviewing a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court accepts all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.
Alexander v. AmeriPro Funding, Inc., 48 F.3d 68, 701 (5th Cir. 2017) (citing Martin
K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
However, the court does not apply the same presumption to conclusory statements
or legal conclusions. Iqbal, 556 U.S. at 678-79.
III. Analysis
Defendant argues that this case should be dismissed based on the res judicata
effect of (1) the dismissal of Case IV due to the “Two Dismissal Rule;” and/or (2)
the dismissal of the Counterclaim in Case II, the Mexican proceeding. Plaintiff
argues that res judicata is an affirmative defense that should not be addressed at the
motion to dismiss stage. Fifth Circuit precedent holds that “courts may sua sponte
address res judicata at the motion to dismiss stage ‘where all the relevant facts are
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contained in the record . . . and all are uncontroverted.’ Pie Dev., L.L.C. v. Pie
Carrier Holdings, Inc., 128 F.4th 657, 662 (5th Cir. 2025) (distinguishing the
requirement in Anderson v. Wells Fargo Bank, N.A., 953 F.3d 311, 314 (5th Cir.
2020) that plaintiff also must fail to challenge defendant’s failure to plead res
judicata as an affirmative defense). In this case, the undisputed relevant facts
regarding the issue of res judicata are before the Court. Therefore, consideration of
Defendant’s Rule 12(b)(6) motion based on res judicata is appropriate.
Plaintiff also argues this case is not barred by res judicata because (1) Swiber
Marine and Swiber Offshore are separate entities and (2) the dismissal of Case II in
Mexico was without prejudice, not on the merits. The parties dispute whether the
Mexican Case (Case II) resulted in a final judgment on the merits. See ECF 22-1 at
5 (Declaration of Fabricio Coba Jiminez stating that dismissal of Swiber Marine’s
appeal resulted in judgment with prejudice); ECF 27-5 (Declaration of Francisco De
Jesus Riveros Garcia stating the proceedings in Mexico were dismissed for want of
prosecution and did not prevent refiling). The Court need not resolve whether the
dismissal of the Mexican proceeding resulted in a final judgment on the merits
because the voluntary dismissal of Case IV constitutes a judgment on the merits
which bars the current case.
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A. Swiber Marine’s dismissal of Case IV was a dismissal on the merits
under Federal Rule of Civil Procedure 41(a)(1)(B).
Federal Rule of Civil Procedure 41(a) governing voluntary dismissal of a case
by the plaintiff provides:
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2,
and 66 and any applicable federal statute, the plaintiff may dismiss an
action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have
appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the
dismissal is without prejudice. But if the plaintiff previously dismissed
any federal- or state-court action based on or including the same claim,
a notice of dismissal operates as an adjudication on the merits.
Rule 41(a)(1)(B), known as the “Two Dismissal Rule,” results in a decision on the
merits which bars refiling of the claim. See Yesh Music v. Lakewood Church, 727
F.3d 356, 363 (5th Cir. 2013) (recognizing the “well-known legal consequence” of
two voluntary dismissals is an inability to refile the complaint.) Despite its
potentially harsh consequences, Rule 41(a)(1)(B) is clear and must be applied as
written. Cabot Golf CL-PP 1, LLC v. Nixon Peabody, LLP, 575 F. App'x 216, 218
(5th Cir. 2014). Therefore, where a plaintiff has previously dismissed a claim, a
second voluntary dismissal of the same claim operates as a judgment on the merits
that supports preclusion based on res judicata. Id.
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1. The Two Dismissal Rule applies when plaintiffs are in privity.
The undisputed facts establish that Swiber Offshore (Case III) and Swiber
Marine (Case IV) have each previously asserted and voluntarily dismissed the same
claim asserted in this case, Case V. Rule 41(a)(1)(B) provides that if the plaintiff
has previously dismissed an action the second dismissal operates as a judgment on
the merits. The question in this case is whether Swiber Marine and Swiber Offshore
are considered the same plaintiff for the purposes of the Two Dismissal Rule.
D-B has not cited, and the Court has not found, a Fifth Circuit case applying
the Two Dismissal Rule where the dismissing plaintiffs are not identical but are in
privity. However, other jurisdictions have applied the rule in similar circumstances.
See Orman v. Citimortgage, No. 15-3432, 2016 WL 1592948, at *4 (E.D. Pa. Apr.
21, 2016) (holding that the “Two Dismissal Rule is not limited to circumstances in
which the plaintiff voluntarily dismissing the second suit is identical to the plaintiff
dismissing the first suit; it is enough that the plaintiffs in both actions are in privity
with one another to be within the scope of the Two Dismissal Rule”); see also
Captiva RX, LLC v. Daniels, No. 5:14-CV-265 MTT, 2014 WL 5428295, at *4
(M.D. Ga. Oct. 23, 2014) (holding that the Two Dismissal Rule and the res judicata
bar applied where three lawsuits asserted the same injury and the same legal right
despite naming a different plaintiff as the party in interest); Ferretti v. Beach Club
Maui, Inc., No. CV 18-00012 JMS-RLP, 2018 WL 3672741, at *3 (D. Haw. Aug. 2,
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2018) (holding the “two-dismissal rule applies where a plaintiff is a real party in
interest or in privity with a party who voluntarily dismissed two prior actions”).
The purpose of Rule 41(a)(1)(B) is to prevent abuse and harassment. Gay v.
Quicken Loans Inc., No. 5:19-CV-00697-OLG, 2020 WL 7974007, at *2 (W.D. Tex.
Mar. 20, 2020) (citing American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th
Cir. 1963)). Applying the Two Dismissal Rule where plaintiffs are in privity serves
this purpose. Thus, the Court agrees with the holdings from other jurisdictions cited
above. Next, the Court addresses whether Swiber Marine and Swiber Offshore are
in privity.
2. Swiber Marine and Swiber Offshore are in privity.
“Privity is merely another way of saying that there is sufficient identity
between parties to prior and subsequent suits for res judicata to apply.” Meza v. Gen.
Battery Corp., 908 F.2d 1262, 1266 (5th Cir. 1990); see also 9000 Airport L.L.C. v.
Hegar, No. 23-20568, 2025 WL 1024951, at *2 (5th Cir. Apr. 7, 2025) (holding that
privity is assessed by examining the parties’ shared interests). The Fifth Circuit has
identified three instances in which privity exists: “(1) where the non-party is the
successor in interest to a party's interest in property; (2) where the non-party
controlled the prior litigation; and (3) where the non-party's interests were
adequately represented by a party to the original suit.” Armadillo Hotel Grp., L.L.C.
v. Harris, 84 F.4th 623, 631 (5th Cir. 2023).
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Here, Swiber Offshore filed Case III claiming ownership of the Vessel that
was wrongfully seized. ECF 28-1 ¶5.1. Swiber Marine’s Original Petition in this
case alleges that Swiber Marine owns the Vessel and that Swiber Offshore is an
“affiliated entity.” ECF 1-2 ¶¶5.2, 5.4. Despite identifying Swiber Offshore as an
affiliated entity in the Original Petition, Swiber Marine argues in Response to the
Motion to Dismiss that it “is a distinct entity from Swiber Offshore, and is 100%
owned by Zokun Inversiones (a Mexican corporation) and Petra del Rocio Landa
Rosas (a Mexican citizen).2 Neither holds any ownership or management within
Swiber Offshore.” ECF 27 at 5. Antonio G. Villegas, “the former majority owner
of Swiber Marine,” has submitted a Declaration attesting that on April 7, 2025, he
transferred 100% of his ownership interest in Swiber Marine to the current owners
identified above. ECF 27-4. Villegas’s declaration is silent as to the current
ownership of Swiber Offshore or the Vessel at issue. Id. Nonetheless, the entities’
distinct ownership does not dispose of the privity inquiry.
If Swiber Offshore owned the Vessel at the time it filed Case III, and Swiber
Marine owned the Vessel at the time it filed Case IV, Swiber Marine is the successor
in interest to Swiber Offshore as to rights at issue in this case. Swiber Marine and
Swiber Offshore were protecting the same interests in Case III and Case IV and
2 Swiber Marine’s insistence for current purposes that it and Swiber Offshore are not affiliated is
puzzling, given that Swiber Marine is not a party to the Tolling Agreement that preserved the
statute of limitations on its claims. See ECF 17-5.
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Swiber Offshore adequately protected Swiber Marine’s interests in Case III. Thus,
Swiber Marine and Swiber Offshore are in privity with respect to the rights at issue
in this case. Therefore, pursuant to Rule 41(a)(1)(B), Swiber Marine’s dismissal of
Case IV is a judgment on the merits. Next, the Court addresses whether the elements
of res judicata are present.
B. Swiber Marine’s claim in this case is barred by res judicata
Federal law governs the application of res judicata principles to a judgment
on merits under Rule 41(a)(1)(B). Cabot Golf CL-PP 1, LLC v. Cabot Golf CL-PP
Acquisition, LLC, No. 5:12CV39, 2013 WL 3927861, at *8 (E.D. Tex. July 25,
2013), aff'd sub nom. Cabot Golf CL-PP 1, LLC v. Nixon Peabody, LLP, 575 F.
App'x 216 (5th Cir. 2014). Under federal law, res judicata has 4 elements: “(1) the
parties are identical or in privity; (2) the judgment in the prior action was rendered
by a court of competent jurisdiction; (3) the prior action was concluded by a final
judgment on the merits; and (4) the same claim or cause of action was involved in
both actions.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.
2005). A “transactional test” is used to determine whether a subsequent action
involves the same claim or cause of action. Under this test, “[a] prior judgment's
preclusive effect extends to all rights of the plaintiff with respect to all or any part
of the transaction, or series of connected transactions, out of which the original
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action arose.” Test Masters, 428 F.3d at 571; see also Barr v. Resolution Trust
Corp., 837 S.W.2d 627, 628 (Tex. 1992).
As set forth above, Swiber Marine and Swiber Offshore are in privity and the
prior dismissal was a final judgment on the merits, satisfying the first and third
elements of the res judicata doctrine. Case IV was pending before United States
District Judge Charles Eskridge in the Southern District of Texas, indisputably a
court of competent jurisdiction, satisfying the second element. Finally, a comparison
of the Original Petition in Case IV and the Original Petition in this Case V establishes
that they are substantially identical. The cases involve the same event and the same
vessel, assert the cause of action, and seek the same damages. The cases arise out
of the same transaction, satisfying the fourth element. This case is barred by res
judicata and should be dismissed with prejudice.
IV. Conclusion and Recommendation
For the above reasons, the Court RECOMMENDS that Defendant’s Motion
to Dismiss (ECF 22) be GRANTED Plaintiff’s claims in this case be DISMISSED
WITH PREJUDICE.
The Clerk of the Court shall send copies of the memorandum and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
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the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Signed on December 09, 2025, at Houston, Texas.
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