Lavonna EDDY; Vernon Eddy; Kathy Lander; Mark Lander, Plaintiffs-Appellants, and Ann Eddy, Plaintiff, v. WAFFLE HOUSE, INCORPORATED, Defendant-Appellee, 482 F.3d 674

Affirmed by published opinion. Judge WIDENER wrote the opinion, in which Judge NIEMEYER concurred. Judge MICHAEL wrote a dissenting opinion. OPINION WIDENER, Circuit Judge: This case is an appeal from the final judgment of the U.S. District Court of the District of South Carolina. The plaintiffs, an extended black family, stopped to eat at a Waffle House restaurant in Walterboro, South Carolina. There, one of the plaintiffs, Mark Lander, allegedly was told that the restaurant didn’t serve black people. He then collected his family, who had not heard the remark, and left the restaurant.

All the family members then filed this lawsuit, alleging a violation of 42 U.S.C. § 1981, and § 2000a. Additionally, the plaintiffs alleged violations of South Carolina state law, specifically, S.C.Code Ann. § 45-9-10 and § 45-9-30. After the close of discovery, the defendant moved for

summary judgment on all claims. The district court granted the defendant’s motion with respect to all family members save Mark Lander, the only individual who allegedly heard the derogatory remark. Mr. Lander’s case then proceeded to jury trial which ended with the defendant’s verdict. This appeal followed. We have jurisdiction under 28 U.S.C. § 1291. For the reasons following, we affirm. I. On July 6, 2000, the plaintiffs, Mark and Kathy Lander, a married couple, Vernon and Ann Eddy, a married couple, and Miss Lavonna Eddy, a female and granddaughter of Mr. and Mrs.

Eddy stopped for lunch at the Walterboro Waffle House in South Carolina. As Mr. Lander walked towards a booth, he allegedly heard a waitress utter the inflammatory remark. Mr. Lander, understandably upset at what he perceived to have occurred, communicated the comment to the rest of the group and decided, together with the Eddys, to leave the restaurant. On July 2, 2003, the Landers and the Eddys commenced the present action. The district court granted

summary judgment to defendant with respect to claims of the Eddys and Mrs. Lander. The court reasoned that since neither the Eddys nor Mrs. Lander heard the remark allegedly uttered by one of the waitresses, they were not denied service. Employing the same reasoning throughout, the court granted

summary judgment to the defendant on both federal and state law claims of the Eddys and Mrs. Lander. The court denied defendant’s motion for

summary judgment with respect to Mr. Lander, and that case proceeded to a jury trial which ended in the verdict for the defendant. At trial the following events questioned in this appeal are alleged to have occurred. First, during his opening statement, the defense counsel said “Mark Lander will tell you that ... he heard the statement, they don’t serve niggers here.” (emphasis added). Second, during the closing argument, the defense counsel made a visual presentation to the jury wherein he compared the stacks of depositions obtained by the plaintiffs to that obtained by the defendant.

The argument goes that despite the significantly greater number of pages collected by the plaintiffs he still failed to prove his case. According to the plaintiffs, however, the defense counsel improperly manipulated the stacks by using condensed transcripts in Waffle House’s stack and adding extraneous materials into Mr. Lander’s stack. Third, during the closing argument, defense counsel stated that based on his own observations during trial, it was clear that Mr. Lander did not even recognize the waitress who allegedly made the racist remark when the waitress walked into the courtroom and gave testimony.

Fifth, and finally, in the course of the trial, the district court excluded evidence of other similar complaints against Waffle House as irrelevant. In the present appeal, the plaintiffs contend that the district court erred when it granted

summary judgment with respect to the Eddys’ and Mrs. Lander’s claims against the defendant. The plaintiffs further contend that the district court abused its discretion in making the following rulings: 1) not granting a mistrial or issuing a curative instruction in response to the defendant’s counsel’s opening statement; 2) not granting a curative instruction in response to the defendant’s counsel’s closing argument; 3) excluding certain evidence from trial. We address each of the plaintiffs’ contentions in turn. II. We review a grant of

summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party. Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir.2006). We review the district court’s decisions on such evidentiary matters of relevance for abuse of discretion. Bright v. Coastal Lumber Co., 962 F.2d 365, 371 (4th Cir.1992). Similarly, we review for abuse of discretion the district court’s decisions on grant or denial of a mistrial or a curative instruction in response to counsel’s opening statements and closing argument. See Bright, 962 F.2d 365, 370 (4th Cir.1992). III. We are of opinion that the district court erred in granting

summary judgment to the defendant on the claims of Mrs. Lander and those of the Eddys. The district court erred in concluding that the Eddys and Mrs. Lander were not denied service simply because they were outside the earshot of the alleged racist remark. A. For the purposes of this discussion, we assume, as we must, that the remark was actually uttered, was heard by Mr. Lander, and was related by him to the rest of his group. See Francis, supra, 452 F.3d at 302. Under these facts, we must conclude that the Eddys and Mrs. Lander were denied service in no less a degree than Mr.

Lander who actually heard the remark. “To prove a § 1981 claim, [ ] a plaintiff must ultimately establish both that the defendant intended to discriminate on the basis of race, and that the discrimination interfered with a contractual interest.” Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 434 (4th Cir. Aug.9, 2006). Certainly if the defendant’s employee uttered the phrase she is alleged to have uttered (as we must assume) that is prima facie evidence of intent to discriminate on the basis of race. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir.2001); Walker v.

Thompson, 214 F.3d 615, 626 (5th Cir.2000). We are therefore left with the question of whether “the discrimination interfered with a contractual interest.” Denny, supra. We agree with the Fifth Circuit that “dining at a restaurant generally involves a contractual relationship that continues over the course of the meal and entitles the customer to benefits in addition to the meal purchased.” Arguello v. Conoco, Inc., 330 F.3d 355, 360 (5th Cir.2003). Certainly, a reasonable person would not expect to be served in an openly hostile environment.

As we have said in Spriggs, supra, “no single act can more quickly ... create an abusive environment than the use of an unambiguously racial epithet such as ‘nigger’.... ” 242 F.3d at 185. It is irrelevant whether the customer heard the epithet for himself or whether he came to know through somebody else that such language is being used. In either case, a reasonable person would feel it to be a hostile environment. Furthermore, it should be noted that the Eddys and the Landers arrived in the restaurant as a family.

One would certainly not expect anyone in the party to stay and feel welcome when other members of the same party have been subject to the racial epithets. By denying service to one member of the party, the defendant effectively denied service to the other members of the same party. Accordingly, the district court erred when it granted

summary judgment to the defendant with respect to the § 1981 claims of Mrs. Lander and the Eddys. For the same reasons we also hold that it was error to grant

summary judgment to the defendant on § 2000a and South Carolina state law claims of Mrs. Lander and the Eddys. B. That, however, is not the end of our inquiry. In view of our deciding here that

summary judgment was erroneous, we must inquire whether failure to do so was prejudicial or was harmless error. The defendant argues that even if the grant of

summary judgment was in error, the error was harmless because the claims of Mrs. Lander and the Eddys are the same and based on identical facts as those of Mr. Lander, which were in turn fully tried to a jury. Thus, the argument goes, there is no need to allow a separate trial on the claims of Mrs. Lander and the Eddys, because all issues relevant to their claims have been heard and rejected by a jury. We agree and have considered almost exactly the same fact situation in Street, infra. Generally,

summary judgment can be affirmed on appeal only if the evidence available to the trial judge at the time he ruled on the motion established that there was no genuine issue of material fact. This case is extraordinary, however, in that the facts material to the [defendant’s] liability were fully developed in the subsequent trial against Officer Surdyka. Street v. Surdyka, 492 F.2d 368, 374-75 (4th Cir.1974). In the case at bar, whatever facts may have been in dispute were resolved in the subsequent jury trial which absolved the defendant.

In the ordinary situation, we apply the doctrine of collateral estoppel to bar relitigation of an issue that has already been judicially decided. See Sedlack v. Braswell Servs. Group, 134 F.3d 219, 224 (4th Cir.1998).

For collateral estoppel to apply, the proponent must establish that (1) the issue sought to be precluded is identical to one previously litigated; (2) the issue must have been actually determined in the prior proceeding; (3) determination of the issue was a critical and necessary part of the decision in the prior proceeding; (4) the prior judgment must be final and valid; and (5) the party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the previous forum. Sedlack, 134 F.3d at 224. It is clear that criteria (l)-(4) are satisfied in this case.

Certainly, whether or not the racist statement was actually made was central to the resolution of Mr. Lander’s claim and is the very issue that would be litigated by Mrs. Lander and the Eddys. The only question is whether Mrs. Lander and the Eddys “had a full and fair opportunity to litigate the issue.” The Street case is persuasive, even if not controlling. It is on almost the same facts as the present case. There, Street sued an officer and two police cadets, under 42 U.S.C. § 1983, for making an allegedly unlawful arrest. .We reasoned that the district court erred if its granting of

summary judgment to the cadets was because it reasoned that they were not acting under color of law. Street, 492 F.2d at 374-375 and n. 10. The case proceeded to trial against the remaining officer and the jury returned a verdict absolving the officer of liability. On appeal we held that although it would have been a legal error for the district court to have granted

summary judgment on the claim against the cadets, “the uncontroverted evidence in the record at the time of entry of

summary judgment, as embellished and explained by Street’s [the plaintiffs’] subsequent testimony, convinces us that Street is not entitled to recovery and that a remand for trial against the cadets would be to no avail.” Street, 492 F.2d at 375 (emphasis added). This court affirmed the judgment of the district court. The same logic holds with equal force in the present case. The evidence in the record at the time of

summary judgment “as embellished and explained” by subsequent trial testimony, convinces us that a remand for trial on the Eddys’ and Mrs. Lander’s claim “would be to no avail.” In reaching this conclusion, we are in agreement with the Ninth Circuit. In Jackson v. Hayakawa, 605 F.2d 1121 (9th Cir.1979), the Ninth Circuit faced a similar situation as that present here. In Jackson, 400 students were arrested during a demonstration. Some of the arrestees later filed suits seeking declaratory judgment challenging several state statutes. A three-judge district court in Carrillo v. Hayakawa, No. C—50808 (N.D.

Cal., June 27, 1969), rejected the students’ claims. Subsequently, a different group of students, not party to the original action filed a new lawsuit. The district court held, and the Ninth Circuit affirmed, that the new complaint is barred by res judicata. In its opinion the court stated: The rights sought to be vindicated remain the same, the passage of years has not altered their character in any way. Both cases arose out of the mass arrests which occurred on January 23,1969. Plaintiffs argue that the parties to the Carillo suit are not the same as those involved in the present case.

They claim that Carillo involved different plaintiffs. Although the named plaintiffs may have been different, we otherwise disagree with this contention. Initially, courts are no longer bound by rigid

definitions of the parties or their privies for the purposes of applying collateral estoppel or res judicata. Carrillo was brought on behalf of all those who were arrested on January 23 at the College. It was brought as a class action and treated by the court as a class action. Virtually all of those arrested were represented by counsel in the Carrillo case. The plaintiffs fail to raise any other arguments as to why this claim should not be barred by res judicata. Jackson, 605 F.2d at 1125-26 (internal citations and footnotes omitted). The present facts are similar to the ones in Jackson.

The “rights sought to be vindicated” by the Eddys and Mrs. Lander are the same as those of Mr. Lander. Both cases arose out of the same incident. All plaintiffs were represented by the same attorney. On these facts, we agree with the Ninth Circuit that the claims of the Eddys and Mrs. Lander should be barred. As the jury deemed Mr. Lander’s evidence, including his own testimony, to be insufficient for him to prevail, it necessarily follows that the same evidence would be insufficient for Mrs. Lander and the Ed-dys to prevail. As a result, Mrs. Lander’s and the Ed-dys’ legal claims must fail with those of Mr.

Lander. Because, as explained below, we find that there was no error at Mr. Lander’s trial, we affirm the judgment of the district court as to Mrs. Lander and the Eddys. IV. Mr. Lander argues on appeal that the district court committed errors when it refused to issue a curative instruction or declare a mistrial in response to defense counsel’s statements during the opening statement and closing argument. We are of opinion the argument is without merit. According to Mr.

Lander, defense counsel’s statement during his opening statement that “Mark Lander will tell you that ... he heard the statement, they don’t serve niggers here,” when Mr. Lander actually heard the phrase “we don’t serve niggers here,” prejudiced and confused the jury (emphasis added). Mr. Lander argues that defense counsel led the jury to believe that the statement, being in third person plural, was made by a customer as opposed to having been made by an employee who would have used first person plural. Even if we were inclined to agree with Mr.

Lander that counsel’s statement was prejudicial and confusing, we cannot conclude that it was “so flagrant or inflammatory as to affect the fairness of the trial.” Bright, 962 F.2d at 370. In light of that fact, we conclude that the district court did not abuse its discretion in denying a motion for a mistrial. Whatever prejudice may have resulted from defense counsel’s opening statement (and we are far from convinced that there was any) is negated by the court’s proper instruction that “that counsel’s statements were not evidence.” Martin v.

Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir.1995) (internal quotations omitted). We therefore affirm the district court on this issue. The court could hardly have been more clear. Its instruction to the jury was: Certain things are not evidence and you may not consider them in deciding what the facts are. I’ll list them for you now. Arguments and statements by the lawyers are not evidence. The lawyers are not witnesses. What they said in their opening statements, closing arguments, and at other times, is intended to help you interpret the evidence, but it is not evidence.

If the facts as y’all remember them differ from the way the lawyers have stated them, your memory then controls. We affirm the district court as to the decision with respect to the opening statement. Next, Mr. Lander argues that the district court failed to give curative instructions in response to defense counsel’s supposedly misleading presentation of the volumes of depositions during the closing argument. Again, however, Mr.

Lander fails to persuade us that the prejudice resulting from this supposed misrepresentation was “so flagrant or inflammatory as to affect the fairness of the trial.” Bright, 962 F.2d at 370. We are consequently convinced that the district court did not abuse its discretion in not instructing the jury on its own motion, no objection having been made by the plaintiffs. Neither was there a motion for mistrial. Next, Mr. Lander argues that the defendant’s counsel provided testimony in his closing statement by commenting on Mr.

Lander’s supposed reaction to the testimony of the waitress who was accused of making the racist remark. Again, we cannot conclude that this comment (even if improper) was “so flagrant or inflammatory as to affect the fairness of the trial,” Bright, 962 F.2d at 370, especially in light of the proper jury instruction “that counsel’s statements were not evidence.” We do not find that the district court abused its discretion in not issuing a curative instruction and affirm it on this issue. Finally, Mr.

Lander argues that the district court abused its discretion in failing to admit evidence of other lawsuits and complaints against Waffle House. The plaintiffs recognize that this evidence would be hearsay and thus inadmissible if offered for the truth of the matter asserted. Instead, they argue that the evidence would be offered to prove that the defendant was “on notice” of the racist behavior of its employees. But the jury concluded that there was no actionable racist behavior toward Mr. Lander.

However, even if we concluded that this evidence were relevant, we cannot conclude that the district court decision to preclude the evidence was “arbitrary and irrational.” Mohr, 318 F.3d at 618. Aside from relevancy issues, the evidence was hearsay, and its exclusion was not an abuse of discretion. In short, we conclude that the district court did not abuse its discretion and affirm it on this issue. V. For the foregoing reasons, we conclude that the district court erred in granting

summary judgments to the defendant on the claims of Mrs. Lander and the Eddys. However, we conclude that the error was harmless because after a trial a jury rejected identical claims, based on the same set of facts, of the remaining family member, Mr. Lander. Because we find no error in the trial of Mr. Lander, we conclude that the claims of Mrs. Lander and the Eddys also fall. The judgment of the district court is accordingly AFFIRMED. . The actual comment allegedly was "We don't serve niggers here." . Ann Eddy died during the pendency of the litigation. Her claim is not being pursued. . Mrs. Eddy is Mrs.

Lander’s aunt. . The Eddys and Mr. Lander entered the restaurant together, while Mrs. Lander briefly stayed behind, but was intending to join the rest of the party shortly. . It is undisputed that the only direct, acknowledged communication between the Ed-dys and a Waffle House employee was a waitress' inquiry into how she might serve them: "May I help you?” As stated previously, Mrs. Lander was not inside the restaurant at the time. See ante n. 4. . We note that in his deposition, J.A. 207A, Mr. Lander himself several times used the third person plural.

He now argues that he was simply using a correct grammatical construction in relaying what he heard, while always maintaining that the original phrase was in first person plural. Br. at 11, J.A. 1160-61 A. However, that cuts both ways. The defense counsel also can be said to have used a “correct grammatical construction” when relaying what his clients were accused of saying. . The assignment of error states: THE COURT ABUSED ITS DISCRETION IN NOT GRANTING A MISTRIAL OR INSTRUCTING THE JURY TO DISREGARD THE STATEMENTS AND ACTIONS OF DEFENSE COUNSEL IN HIS CLOSING ARGUMENT, WHICH CONFUSED AND MISLED THE JURY.

Br. p. 34 We have read each appendix and transcript reference in the brief to support this assignment of error: Br. pp. 34-37; J.A. 1224A-1225A; 1096A; 1228A; 1227A; and 1144A. The facts disclosed in those references to the record do not support the assignment of error.

Rather, the plaintiffs depend on uncomplimentary adjectives and adverbs, for example: “Defense counsel's testimony about evidence and matters not in the record,” Br. p. 34; “Counsel's demonstration was, at best, highly misleading and, at worst, intentionally false,” Br. p. 34; "This misleading and confusing characterization of the evidence,” Br. p. 35; and “His agenda of misleading the juxy,” Br. p. 36. Despite all of this conduct now complained of, the plaintiffs' attorneys did not move for a mistrial in the district court, contemporaneously or otherwise.

No motion was made to set aside the verdict or to alter or amend the judgment, and plaintiffs apparently simply collected previously unspoken grievances with the trial court for the first time in their brief on appeal. Along the same line, the special verdict form was not objected to and was "Did the plaintiff prove by the preponderance of the evidence each of the elements of his 1981 claim against the defendant?” The answer of the jury was "no.” There was no objection to the court's jury instructions. Even now, there is no claim that the evidence does not support the verdict.

Proceeding in the manner just outlined above does not add weight to plaintiffs' argument.