Smith v. The Florida Gulf Coast University Board of Trustees

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 as barred by res judicata or claims-splitting

principles. 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 to sources whose

accuracy could not reasonably be questioned.’” 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

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

1

communicated with FCGU about the school’s continuing 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, and stalking with information on available

assistance. 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. Shortly thereafter

Chief Smith observed and suffered gender harassment and

discrimination. On March 29, 2022, Defendant terminated Chief

Smith’s employment and replaced her with a white male.

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Defendant had already had an audit in 2019 by the Department

of Education regarding its Annual Security Report not meeting

requirements.

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.) On July 12, 2023, Plaintiff filed a response. (Doc. #14-

6.) 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

complaint was “dismissed” and not “terminated;” that as a result,

plaintiff failed to exhaust her administrative remedies. (Id. at

¶ 1.a.-e.) 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.

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).

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

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

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its alternate finding. The Court finds that there has not been a

final adjudication on the merits in the state court proceeding,

and therefore this element of res judicata has not been

established. 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

2

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.)

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

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.

“Tt 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 7th day of

February 2024.

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SHNIOR UNITED STATES DISTRICT JUDGE

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