Smith v. The Florida Gulf Coast University Board of Trustees
Filing
26
OPINION AND ORDER denying 14 Motion to Dismiss for Failure to State a Claim. Signed by Judge John E. Steele on 2/7/2024. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KELLI SMITH, an individual,
Plaintiff,
v.
Case No:
2:23-cv-840-JES-KCD
THE
FLORIDA
GULF
COAST
UNIVERSITY
BOARD
OF
TRUSTEES,
a
political
subdivision of the State of
Florida,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss for Failure to State a Claim (Doc. #14) filed on
December 5, 2023. Plaintiff filed a Response (Doc. #22) on January
16, 2024, and defendant filed a Reply (Doc. #25) on February 6,
2024, with leave of Court.
Defendant asserts that the claims in
the current federal Complaint (Doc. #1) could have and should have
been brought in a prior state-court lawsuit relying on the same
underlying set of facts but asserting different legal theories.
Defendant therefore moves to dismiss the federal Complaint with
prejudice
principles.
as
barred
by
res
judicata
or
claims-splitting
For the reasons set forth below, the motion is denied.
I.
Both res judicata and claim-splitting may be raised by way of
a Rule 12(b)(6) motion to dismiss.
Concordia v. Bendekovic, 693
F.2d 1073, 1075–76 (11th Cir. 1982).
A district court may resolve
such issues at the pleading stage “where the defense appears on
the
face
of
the
plaintiff's
complaint
and
the
court
is
in
possession of any judicially noticeable facts it needs to reach a
decision.”
Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833, 836
n.1 (11th Cir. 2017).
A Court may take judicial notice of the
documents in the first case “which were public records that were
‘not subject to reasonable dispute’ because they were ‘capable of
accurate
and
ready
determination
by
resort
accuracy could not reasonably be questioned.’”
to
sources
whose
Horne v. Potter,
392 F. App'x 800, 802 (11th Cir. 2010) (citing Fed. R. Evid.
201(b)) (citations omitted). As with any Rule 12(b)(6) motion to
dismiss,
the
Court
must
accept
all
factual
allegations
in
a
complaint as true and take them in the light most favorable to
plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but “[l]egal
conclusions without adequate factual support are entitled to no
assumption of truth,” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th
Cir.
2011)
(citations
omitted).
The
burden
is
on
the
party
asserting res judicata or claim splitting to show the second suit
2
is barred.
In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th
Cir. 2001).
II.
Plaintiff Kelli Smith (Chief Smith) was employed by Defendant
Florida
Gulf
Coast
University
(FGCU)
Board
of
Trustees,
the
governing authority for FGCU (the Board), as the Chief of its
campus police department from May 3, 2021, until her employment
was terminated on March 29, 2022.
During her tenure Chief Smith
communicated with FCGU about the school’s continuing 1 failure to
comply with the Jeanne Clery Disclosure of Campus Security Policy
and Crime Statistics Act (the Clery Act).
Under the Clery Act,
FGCU must provide victims of dating violence, domestic violence,
sexual
assault,
assistance.
and
stalking
with
information
on
available
Chief Smith attended a meeting in which she disclosed
that FGCU was not complying with the Clery Act and recommended
that an expert be hired to train employees.
Chief
Smith
observed
discrimination.
and
suffered
Shortly thereafter
gender
harassment
and
On March 29, 2022, Defendant terminated Chief
Smith’s employment and replaced her with a white male.
Defendant had already had an audit in 2019 by the Department
of Education regarding its Annual Security Report not meeting
requirements.
1
3
On September 20, 2022, Plaintiff filed a Complaint in Lee
County Circuit Court against the FGCU Board of Trustees asserting
a single claim of retaliation under Florida’s Whistle-blower Act
(FWA), Fla. Stat. § 112.3187.
On March 16, 2023, Plaintiff filed
an Amended Complaint (Doc. #14-4), only slightly modifying the
original claim and adding no new claims.
On March 27, 2023,
Defendant filed a motion to dismiss or for summary judgment. (Doc.
#14-5.)
6.)
On July 12, 2023, Plaintiff filed a response.
(Doc. #14-
On July 27, 2023, summary judgment was granted in favor of
Defendant.
In his Order Granting Defendant’s Motion to Dismiss or in the
Alternative for Summary Judgment (Doc. #14-10), the Circuit Court
Judge found that the undisputed facts established that Defendant
was entitled to judgment as a matter of law “on the grounds that
this Court lacks subject matter jurisdiction over Plaintiff’s
claim.”
(Id. at ¶¶ 1, 6.)
More specifically, the Circuit Judge
found that to establish subject matter jurisdiction in the state
circuit court plaintiff was required to exhaust her administrative
remedies for her Whistle-blower’s Act claim; that to exhaust
administrative
remedies
plaintiff
was
required
to
file
an
administrative complaint with the Florida Commission on Human
Relations
(FCHR)
and
the
FCHR
investigation
into
her
administrative complaint must have “terminated;” that plaintiff
filed the administrative complaint, but plaintiff’s administrative
4
complaint was “dismissed” and not “terminated;” that as a result,
plaintiff failed to exhaust her administrative remedies.
¶ 1.a.-e.)
(Id. at
The Circuit Judge held that “[a] failure to exhaust
Whistle-blower’s Act administrative remedies deprives this Court
of subject matter jurisdiction.” (Id. at ¶ 8) (citing four Florida
District Court of Appeals cases).
The Circuit Judge concluded
that plaintiff “failed to exhaust her administrative remedies.
Accordingly, the Court concludes Defendant is entitled to summary
judgment for lack of subject matter jurisdiction.”
(Id. at ¶ 20.)
Alternatively, the Circuit Court found that the Amended Complaint
failed to state a claim satisfying the requirements of the FWA and
dismissed the Amended Complaint.
(Id. at ¶¶ 21-30.)
No appeal
was filed.
III.
On October 5, 2023, Plaintiff filed her Complaint (Doc. #1)
in federal court asserting gender discrimination under federal and
state law (Counts I and II), and retaliation under the federal and
Florida Civil Rights Acts and Title IX (Counts III-V).
These
claims arise from the same facts which underpinned the prior state
court litigation.
Defendant moves to dismiss all claims in the
federal Complaint with prejudice as barred by res judicata or
claims-splitting principles.
5
A. Res Judicata
“Res judicata is a judicially crafted doctrine, created to
provide finality and conserve resources.”
Maldonado v. U.S. Atty.
Gen., 664 F.3d 1369, 1375 (11th Cir. 2011) (citation omitted).
It is by now hornbook law that the doctrine of
res judicata “bars the filing of claims which
were raised or could have been raised in an
earlier proceeding.” Ragsdale v. Rubbermaid,
Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).
For res judicata to bar a subsequent case,
four elements must be present: “(1) there is
a final judgment on the merits; (2) the
decision was rendered by a court of competent
jurisdiction; (3) the parties, or those in
privity with them, are identical in both
suits; and (4) the same cause of action is
involved in both cases.” Id. []
As for the fourth element, two cases are
generally considered to involve the same cause
of action if the latter case “arises out of
the same nucleus of operative fact, or is
based upon the same factual predicate,” as the
former one. Id. at 1239 (quoting Citibank,
N.A. v. Data Lease Fin. Corp., 904 F.2d 1498,
1503 (11th Cir. 1990)); see also Singh [v.
U.S. Atty. Gen., 561 F.3d 1275, 1280 (11th
Cir. 2009)]. “Res judicata acts as a bar ‘not
only to the precise legal theory presented in
the previous litigation, but to all legal
theories and claims arising out of the same
operative nucleus of fact.’” Pleming v.
Universal–Rundle Corp., 142 F.3d 1354, 1356
(11th Cir. 1998) (quoting Manning v. City of
Auburn, 953 F.2d 1355, 1358–59 (11th Cir.
1992)).
Maldonado, at 1375–76.
See also In re Blue Cross Blue Shield
Antitrust Litig. MDL 2406, 85 F.4th 1070, 1090 (11th Cir. 2023);
Shurick v. Boeing Co., 623 F.3d 1114, 1116–17 (11th Cir. 2010).
6
The application of the doctrine of res judicata is a “pure question
of law.”
Maldonado, 664 F.3d at 1374 (citation omitted).
The parties do not dispute that the state court was a court
of competent jurisdiction, or that the parties are the same in
both cases, or that the cases are based on the same facts and
occurrences during Plaintiff’s employment.
The only issue in
dispute is whether there was an adjudication on the merits, as is
required for res judicata to apply.
Plaintiff argues that there
was no adjudication on the merits because the dismissal was based
on a lack of subject matter jurisdiction.
Defendant sees an
adjudication on the merits in the state-court decision.
Both federal and Florida law are clear that a dismissal for
lack of subject matter jurisdiction must be without prejudice and
is not a judgment on the merits.
“Dismissals for a lack of
jurisdiction are not judgments on the merits and are to be entered
without prejudice.”
Dupree v. Owens, 21-12571, 2024 WL 439462, at
*6 (11th Cir. Feb. 6, 2024).
See also Kennedy v. Floridian Hotel,
Inc., 998 F.3d 1221, 1235 (11th Cir. 2021) (citations omitted);
Arison Shipping Co. v. Hatfield, 352 So. 2d 539, 540 (Fla. 3d DCA
1977) (“It is our opinion that a dismissal for lack of subject
matter jurisdiction is not an adjudication on the merits and thus,
not a bona fide termination of the prior civil suit.”); Seminole
Tribe of Florida v. Pupo,
So. 3d
, 2023 WL 8792645, *3, 49
Fla. L. Weekly D20 (Fla. 4th DCA Dec. 20, 2023) (“A failure to
7
comply with a condition precedent to suit typically results in the
dismissal of a prematurely-filed suit, not a ‘forever’ bar unless
a statute of limitations or repose would preclude a newly-filed
lawsuit.”); Fla. R. Civ. P. 1.420(b) (“Unless the court in its
order for dismissal otherwise specifies, a dismissal under this
subdivision and any dismissal not provided for in this rule, other
than a dismissal for lack of jurisdiction or for improper venue or
for lack of an indispensable party, operates as an adjudication on
the merits.”) (emphasis added).
It is also true, however, that the Court must examine the
prior
determination
to
determine
whether
its
jurisdictional
language was a conclusion that the court “lacked the power to
adjudicate the dispute before it.”
Davila v. Delta Air Lines,
Inc., 326 F.3d 1183, 1188 (11th Cir. 2003).
In Davila, for
instance, the Court found that, despite statements to the contrary
by the trial court, “there can be no reasoned doubt that . . . the
court did not base its dismissal on jurisdictional grounds.”
Id.
at 1190.
No such finding is possible here.
The state court clearly
found a lack of subject matter jurisdiction, and then moved on to
8
its alternate finding. 2
The Court finds that there has not been a
final adjudication on the merits in the state court proceeding,
and
therefore
established.
this
element
of
res
judicata
has
not
been
The motion to dismiss based on res judicata is
denied.
B. Claim Splitting
The Eleventh Circuit has recognized that “[t]he rule against
claim-splitting requires a plaintiff to assert all of its causes
of action arising from a common set of facts in one lawsuit. By
spreading claims around in multiple lawsuits in other courts or
before other judges, parties waste ‘scarce judicial resources’ and
undermine ‘the efficient and comprehensive disposition of cases.’”
Vanover, 857 F.3d at 841 (quoting Katz v. Gerardi, 655 F.3d 1212,
1217 (10th Cir. 2011)).
As the Eleventh Circuit has recently
summarized:
In essence, the claim-splitting doctrine
“requires a plaintiff to assert all of [his or
her] causes of action arising from a common
set of facts in one lawsuit.” Kennedy, 998
F.3d at 1236 (quotation marks omitted). The
doctrine prevents a plaintiff from prosecuting
a second suit “before the first suit has
reached a final judgment,” promotes judicial
economy, and shields parties from “vexatious
and duplicative litigation while empowering
Unlike Raulerson v. Warden, 928 F.3d 987, 1001 (11th Cir.
2019), there was no adjudication on the merits of the issue and
then an additional alternative merits decision. (Doc. #25 at 4.)
2
9
the district court to manage its docket.” Id.
(quotation marks omitted).
To
determine
whether
a
plaintiff
has
improperly split his claims among lawsuits, we
examine “(1) whether the case involves the
same parties and their privies, and (2)
whether separate cases arise from the same
transaction
or
series
of
transactions.”
Vanover, 857 F.3d at 841–42 (quotation marks
omitted). “Successive causes of action arise
from the same transaction or series of
transactions when the two actions are based on
the same nucleus of operative facts.” Id. at
842. While this test borrows from the res
judicata test, the question “is not whether
there is finality of judgment, but whether the
first suit, assuming it were final, would
preclude the second suit.” Id. at 841
(quotation marks omitted).
Klayman v. Porter, 22-13025, 2023 WL 2261814, at *3 (11th Cir.
Feb. 28, 2023).
But the claim-splitting doctrine is a prudential rule which
is subject to exceptions.
Estate of Keeter v. Comm'r of Internal
Revenue, 75 F.4th 1268, 1287 (11th Cir. 2023).
The claim splitting
rule applies only “where a second suit has been filed before the
first suit has reached a final judgment.” Watkins v. Elmore, 745
F. App’x 100, 104 n.2 (11th Cir. 2018) (citing Vanover, 857 F.3d
at 840 n.3).
It is undisputed that the state Circuit Court granted
summary judgment on July 27, 2023, and Plaintiff filed the federal
complaint on October 5, 2023.
Since the state case was over about
two months prior to the filing of the federal case, claim splitting
10
does not apply.
The fact that an opportunity to amend existed
before summary judgment was granted is irrelevant.
Additionally, the claim-splitting rule does not preclude a
second suit where there was no jurisdiction for the first lawsuit.
“It is well-established that the general rule against splitting
causes of action does not apply when suit is brought in a court
that does not have jurisdiction over all of a plaintiff's claims.”
Borrero v. United Healthcare of New York, Inc., 610 F.3d 1296,
1307 (11th Cir. 2010) (quoting Aquatherm Indus., Inc. v. Fla. Power
& Light Co., 84 F.3d 1388, 1392 (11th Cir. 1996)); Rumbough v.
Comenity Capital Bank, 748 F. App’x 253, 256 (11th Cir. 2018).
Here, the Circuit Judge granted summary judgment because the state
court lacked subject matter jurisdiction.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss for Failure to State a Claim
(Doc. #14) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
February 2024.
Copies:
Parties of record
11
7th
day of
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