Driessen v. University of Miami School of Law Children & Youth Law Clinic
ORDER ADOPTING REPORT AND RECOMMENDATIONS. Denying 3 Motion for Leave to Proceed in forma pauperis; Adopting 6 Report and Recommendation. Certificate of Appealability: No Ruling; Closing Case. Signed by Judge Roy K. Altman on 9/8/2021. See attached document for full details. (cds)
Case 1:21-cv-22369-RKA Document 8 Entered on FLSD Docket 09/08/2021 Page 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-22369-CIV-ALTMAN/Hunt
ROCHELLE Y. DRIESSEN,
UNIVERSITY OF MIAMI SCHOOL OF
LAW CHILDREN & YOUTH LAW CLINIC,
Magistrate Judge Lisette M. Reid has submitted a Report and Recommendation (“R&R”) [ECF
No. 6], in which she suggests that we deny the Plaintiff’s Motion to Proceed In Forma Pauperis (the
“Motion”) [ECF No. 3] and dismiss this action with prejudice. We agree and now dismiss.
Although federal law authorizes us to permit the Plaintiff to proceed in forma pauperis, it also
requires us to screen the pro se complaint and dismiss it if we determine that “the action or appeal . . .
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
The Plaintiff advances a series of frivolous due-process claims under the Fourteenth
Amendment and Article I, Section 21 the Florida Constitution. See generally Complaint [ECF No. 1] ¶¶
2, 3, 7 18 (reiterating that the “Retainer Agreement . . . violated Plaintiff’s constitutional rights pursuant
to Section 1 of the 14th Amendment of the Constitution of the United States, and Article 1, Section
21 of the Florida Constitution”). As Judge Reid pointed out, these claims are barred by the doctrine
of res judicata because (1) the Plaintiff has raised them before and (2) other judges have dismissed them
already. See R&R at 4–5; see also Driessen v. University of Miami School of Law Children & Youth Clinic, No.
20-cv-24816-RNS (S.D. Fla. Dec. 28, 2020) (Scola, J.), ECF No. 8 (holding that these very same claims
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were barred by the doctrine of res judicata and dismissing the case with prejudice). And, as Judge Reid
noted, to the extent the Complaint can be construed as advancing some miscellaneous contract claims,
we’d lack jurisdiction to hear them. See R&R at 5. In any event, as Judge Reid explained, these contract
claims would fail on the merits because the Plaintiff doesn’t allege that she’s a party to, or an intended
third-party beneficiary of, the agreement at issue here. See id. at 5–6.
In her objections to the R&R, the Plaintiff contends (1) that the R&R “went beyond the face
of the complaint” insofar as it referenced the five other cases the Plaintiff has already filed against the
Defendant; (2) that the five prior cases are irrelevant (and, relatedly, that the Magistrate Judge erred
by failing to explain why she took judicial notice of them); (3) that the Magistrate Judge erred by
agreeing with the judges in each of those five previous cases that the Plaintiff’s constitutional claims
lacked merit; and (4) that the Plaintiff has standing to challenge the agreement because “she received
[it] from the Defendant in the discovery process in [a] State Court malpractice action [the Plaintiff]
filed against the Defendant.” Objections [ECF No. 7].
When a magistrate judge’s “disposition” has been properly objected to, district courts must
review that disposition de novo. See FED. R. CIV. P. 72(b)(3). After having reviewed the Motion and the
Complaint de novo, we agree with Magistrate Judge Reid’s well-reasoned R&R and reject the Plaintiff’s
As to the first three objections—regarding consideration of the Plaintiff’s five previous
lawsuits against this same Defendant—we note that Judge Reid had every right to take judicial notice
of those cases. To clear up any confusion, though, we likewise take judicial notice of those decisions
here. See DeBose v. Ellucian Co., L.P., 802 F. App’x 429, 434 (11th Cir. 2019) (“[T]he district court here
properly took judicial notice of the pleadings and orders in [the plaintiff’s] earlier federal case
stemming from her allegedly wrongful termination, as the records in that case were not subject to
reasonable dispute.”). In any event, the Plaintiff doesn’t challenge the central conclusion the R&R
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draws from those cases: that her constitutional claims are barred by the doctrine of res judicata. See
generally Objections; see also DeBose, 802 F. App’x at 434 (“[T]here is no dispute that the district court
in [the plaintiff’s] earlier federal case was a court of competent jurisdiction, and its rulings on her
claims against [the defendant] were final judgments on the merits.”); Harrell v. Bank of Am., N.A., 813
F. App’x 397, 400 (11th Cir. 2020) (“Although res judicata is an affirmative defense that is properly
raised under Federal Rule of Civil Procedure 8(c)(1), a party may raise it in a Rule 12(b)(6) motion to
dismiss where the defense’s existence can be judged on the face of the complaint. In making this
determination, we may consider documents attached to the complaint and take judicial notice of state
and federal court records of prior proceedings.” (cleaned up)). And that’s reason enough to adopt the
As to her fourth objection—that she has standing (presumably as a third-party beneficiary) to
sue under a contract to which she was not a party—we’re not aware of any precedent that confers
contractual rights upon a non-party based on the non-party having received a copy of the contract in
discovery. See Objections ¶ 9. Under Florida law, the third-party beneficiary must, among other things,
allege and prove that the signatories to the contract intended to benefit her directly, see Found. Health
v. Westside EKG Assocs., 944 So. 2d 188, 194–95 (Fla. 2006) (“To establish an action for breach of a
third party beneficiary contract, [a plaintiff] must allege and prove the following four elements: (1)
existence of a contract; (2) the clear or manifest intent of the contracting parties that the contract
primarily and directly benefit the third party; (3) breach of the contract by a contracting party; and (4)
damages to the third party resulting from the breach.” (cleaned up))—something the Plaintiff hasn’t
averred here, see generally Complaint. In any event, the Plaintiff doesn’t object to the R&R’s conclusion
that we lack subject-matter jurisdiction to consider the state-law contract claims. See generally
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Objections. Because that conclusion was not clearly erroneous, 1 we adopt the R&R on that basis—
except that we dismiss the contract claims without prejudice for lack of subject-matter jurisdiction. See
Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1235 (11th Cir. 2021) (“A dismissal for lack of subject
matter jurisdiction is not a judgment on the merits and is entered without prejudice.” (cleaned up)).
Accordingly, the Court hereby ORDERS AND ADJUDGES as follows:
The R&R [ECF No. 20] is ACCEPTED and ADOPTED.
The Plaintiff’s Motion [ECF No. 3] is DENIED.
The Complaint [ECF No. 1] is DISMISSED with prejudice. But, to the extent the
Complaint can be read as incorporating contract claims, those claims are
DISMISSED without prejudice for lack of subject-matter jurisdiction.
The Clerk of Court shall CLOSE this case, and any pending motions are DENIED
DONE AND ORDERED in Miami, Florida this 8th day of September 2021.
ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE
counsel of record
“[T]he Court must examine the portions of the R&R to which no party has objected for ‘clear error
on the face of the record.’” Vital Pharms., Inc. v. Monster Energy Co., 2020 WL 2091996, at *3 (S.D. Fla.
May 1, 2020) (Altman, J.) (quoting Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006)).
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