# Hilliard, Sr. v. Gutierrez

> District Court, S.D. Florida · July 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10119317

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** July 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10119317

## How later opinions describe it (automated extraction)

- stating that finality for purposes of res judicata is when the district court issues its judgment
- explaining that “an unserved defendant in the first action may not affirmatively assert the doctrine of res judicata as a defense to the second action—unless the unserved defendant was in privity with a party to the first action”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-20513-BLOOM/Otazo-Reyes

ELGIN HILLIARD, SR.,

Plaintiff,

v.

RENE GUTIERREZ,

Defendant.
_________________________/

ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Rene Gutierrez’s (“Defendant” or
“Officer Gutierrez”) Motion to Dismiss Plaintiff’s First Amended Complaint, ECF No. [12]
(“Motion”). Plaintiff Elgin Hilliard, Sr. (“Plaintiff”) filed a response in opposition, ECF No. [14]
(“Response”), to which Defendant replied, ECF No. [19] (“Reply”). The Court also held a hearing
on the Motion on April 8, 2021 and has considered the arguments of counsel. See ECF No. [20].
The Court has carefully reviewed the Motion, all opposing and supporting submissions, the
arguments presented at the hearing, the record in this case, the applicable law, and is otherwise
fully advised. For the reasons set forth below, the Motion is granted.
I. BACKGROUND
Plaintiff initiated this civil rights action against Defendant on May 17, 2020, in the Circuit
Court for the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. ECF No. [1-2]. On
February 5, 2021, Defendant removed this action to federal court. ECF No. [1] (“Notice”); see
also ECF No. [7]. Defendant now files the instant Motion, which seeks to dismiss this action with
prejudice because the claims asserted in this case are barred under the doctrine of res judicata.
Plaintiff opposes the Motion. Moreover, the Court held a hearing on the Motion, which was
attended by counsel for both parties.
Relevant to the instant Motion are two cases: (1) this action (“Hilliard II”); and (2) Hilliard
v. Hialeah Housing Authority, No. 18-cv-24594-CMA (S.D. Fla. Nov. 1, 2018) (“Hilliard I”).1
Both cases were brought by Plaintiff and concern nearly identical facts surrounding Plaintiff’s

allegedly false arrest on May 17, 2016. The details of each case are discussed below.
A. Hilliard I
On November 1, 2018, Plaintiff initiated Hilliard I against the City of Hialeah, the Hialeah
Police Department, Chief of Police Sergio Velazquez, the Hialeah Housing Authority (“HHA”),
HHA Chairperson Maida Gutierrez, and Officer Gutierrez,2 asserting federal civil rights violations
pursuant to 42 U.S.C. § 1983, state tort law claims, and a claim for retaliation under the Federal
Housing Act (“FHA”), 42 U.S.C. § 3617, et seq. See Hilliard I, ECF No. [1]. On February 1, 2019,
Officer Gutierrez was dismissed from the case without prejudice after Plaintiff failed to timely
perfect service on him. Hilliard I, ECF No. [29]. Ultimately, on April 15, 2019, Plaintiff filed his

Second Amended Complaint (the operative pleading), which again named Officer Gutierrez and
HHA as defendants and dismissed all of the other previously named defendants. See Hilliard I,
ECF No. [68]. The Second Amended Complaint alleges the following facts:
On May 17, 2016, Plaintiff visited the HHA office with documentation to support his
application for a Section 8 voucher. See id. ¶¶ 17-20. During his visit, Plaintiff became upset with
the HHA employees and, among other things, accused them of discrimination. See id. ¶¶ 21-26.

1 Any docket entries from Hilliard I will be cited as “Hilliard I, ECF No. [__].”

2 HHA is a public agency in the City of Hialeah that is responsible for operating the Section 8 Voucher
Program. Hilliard I, ECF No. [68] ¶ 7. Officer Gutierrez is a retired City of Hialeah police officer and was
employed by HHA as a fraud investigator at the time of the incident. See id. ¶ 8. The Second Amended
Complaint in Hilliard I sued Officer Gutierrez in both his individual and official capacities. Id.
The HHA employees called Officer Rene Gutierrez, a retired police officer
employed by Defendant, who arrived in the lobby shortly thereafter. Officer
Gutierrez asked Plaintiff to step outside to speak with him. Once outside, Plaintiff,
who was holding his cane, began asking Officer Gutierrez what he wanted and why
he had asked him to come outside. Plaintiff then put his cane down and assumed
what Officer Gutierrez believed to be a combative, “squaring” stance. Officer
Gutierrez reached for his taser at one point during the encounter but never pulled it
out from its holster. Plaintiff was arrested and charged with disorderly conduct and
assault o[n] a law enforcement officer, but the charges were dropped.
Hilliard v. City of Hialeah, No. 18-24594-CIV, 2020 WL 554540, at *2 (S.D. Fla. Feb. 4, 2020)
(citations and footnote omitted).3
Based on these facts, the Second Amended Complaint asserted the following seven causes
of action against Officer Gutierrez, who had not yet been served, and HHA: Count I – False Arrest
and/or Imprisonment – 42 U.S.C. § 1983 Claim (Defendant Hialeah Housing Authority); Count
II – False Arrest and/or Imprisonment – State Tort Claim (Defendant Gutierrez); Count III –
Excessive Use of Force (Defendants Hialeah Housing Authority and Gutierrez); Count IV – 42
U.S.C. § 1983 First and Fourteenth Amendment Violation for Retaliation (Defendant Gutierrez);
Count V – 42 U.S.C. § 1983 First and Fourteenth Amendment Violation for Retaliation (Defendant
Hialeah Housing Authority); Count VI – Violation of 42 U.S.C. § 1983 (Defendant Hialeah
Housing Authority); and Count VII – Retaliation Under the Federal Fair Housing Act (Defendant
Hialeah Housing Authority). See generally Hilliard I, ECF No. [68] at 10-16.
On November 30, 2019, HHA filed a motion for summary judgment on all claims asserted
against it. Hilliard I, ECF No. [85]. The Court in Hilliard I granted summary judgment in part and
denied it in part. See Hilliard I, 2020 WL 554540, at *1. Specifically, summary judgment was
granted in HHA’s favor on Counts I, III,4 V, and VI, and was denied as to the FHA claim asserted

3 These undisputed facts are taken from the summary judgment order in Hilliard I.

4 Of note, although the Order in Hilliard I granted summary judgment as to Count III of the Second
Amended Complaint, it did so without engaging in any substantive analysis based on Plaintiff’s statement
in Count VII. See id. The court in Hilliard I once again dismissed Officer Gutierrez without
prejudice due to the lack of service. Hilliard I, 2020 WL 554540, at *3 n.4. Thus, Count VII
proceeded to a jury trial. The jury trial on Count VII commenced on March 2, 2020. Officer
Gutierrez testified during the trial on March 3, 2020. See Hilliard I, ECF No. [138]. Following a
four-day jury trial on the surviving FHA claim, a jury returned a verdict for HHA, and final

judgment was subsequently entered. See Hilliard I, ECF Nos. [133] & [134].
B. Hilliard II
Turning to the instant action, as noted above, Plaintiff originally initiated this civil rights
action against Defendant on May 17, 2020, in the Circuit Court for the Eleventh Judicial Circuit
in and for Miami-Dade County, Florida, ECF No. [1-2], and Defendant subsequently removed the
case to federal court, ECF No. [1]. On March 1, 2021, Plaintiff filed his First Amended Complaint,
ECF No. [8] (“Amended Complaint”), which asserts the following two counts against Defendant
in his individual capacity only: Count I – False Arrest and/or Imprisonment and Count II – 42
U.S.C. § 1983 Fourth and Fourteenth Amendment Violations. See generally id. The Amended

Complaint details almost identical facts regarding the incident between Defendant and Plaintiff on
May 17, 2016, but adds certain generalized statements elicited during Defendant’s trial testimony
in Hilliard I. These additional allegations detail, in relevant part, that:
30. . . . for the first time since Hilliard’s arrest, on or about March 4, 2020,
Defendant was truthful about his lack of probable cause to arrest Hilliard when he
testified under oath to the following in a federal jury trial:

a. at no time did Defendant see Hilliard acting violent or threatening towards
HHA employees while he was inside the building, in fact, when Defendant
first saw Hilliard, Hilliard was sitting quietly and completing the complaint
paperwork;

in his response to the motion for summary judgment of his intent to “voluntarily dismiss[]” that claim. See
Hilliard I, 2020 WL 554540, at *3 n.4.
b. at no time did he see Hilliard behaving as if he was intoxicated or under
the influence of substances;

c. at no time did Hilliard swing his cane at Defendant or move in any
threatening manner towards him.

31. Until the moment when Defendant testified in March 2020, the story of
Defendant reflected in the record was that Hilliard had swung his cane in a
threatening manner towards Defendant on May 17, 2016; hence, his arrest on that
date for felony assault on a law enforcement officer.

32. Put bluntly, Defendant either lied to his fellow law enforcement officers
on May 17, 2016 in order to have Hilliard arrested or he lied under oath on the
witness stand on March 4, 2020 when he was testifying before a jury in a federal
trial.
ECF No. [8] ¶¶ 30-32.
Based on the earlier proceedings and ultimate judgment entered in Hilliard I on materially
indistinguishable facts and legal theories, Defendant now moves to dismiss this action pursuant to
the doctrine of res judicata.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8 requires that a pleading contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Although a complaint “does not need detailed factual allegations,” it must provide “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on
“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (alteration
in original) (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.
When reviewing a motion brought pursuant to Rule 12(b)(6), which requests dismissal for
“failure to state a claim upon which relief can be granted,” a court generally must accept the
plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in
plaintiff’s favor. Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d
1076, 1084 (11th Cir. 2002). Yet, courts “are not bound to accept as true a legal conclusion

couched as a factual allegation.” Twombly, 550 U.S. at 555; see also Thaeter v. Palm Beach Cnty.
Sheriff’s Off., 449 F.3d 1342, 1352 (11th Cir. 2006). Further, on a Rule 12(b)(6) motion, courts
are generally limited to the facts alleged in the complaint and attached exhibits. Wilchombe v.
TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). Nevertheless, a district court may properly
dismiss an action under Rule 12(b)(6) as barred by res judicata. See Starship Enters. of Atlanta,
Inc. v. Coweta Cnty., Ga., 708 F.3d 1243, 1252 n.13 (11th Cir. 2013) (“A party may raise the
defense of res judicata in a Rule 12(b)(6) motion when the existence of the defense can be judged
from the face of the complaint.” (citing Jones v. Gann, 703 F.2d 513, 515 (11th Cir. 1983))).
III. DISCUSSION

In his Motion, Defendant argues that this case should be dismissed with prejudice because
the claims asserted against him in this action are, after Hilliard I, barred by res judicata. Defendant
argues that each of the four required elements of res judicata are present here. Plaintiff opposes
the Motion, responding that the claims are not barred by res judicata because they present different
causes of action arising in part from newly uncovered facts elicited from Defendant at trial in
Hilliard I. Plaintiff argues that Hilliard I did not constitute a final adjudication on the merits of the
claims now presented and the doctrine of res judicata does not bar the claims in this case.
The doctrine of res judicata, or claim preclusion, refers to “the preclusive effect of a
judgment in foreclosing relitigation of matters that should have been raised in an earlier suit.”
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984); see also In re Piper
Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001) (“Under res judicata, also known as claim
preclusion, a final judgment on the merits bars the parties to a prior action from re-litigating a
cause of action that was or could have been raised in that action.” (citing Allen v. McCurry, 449
U.S. 90, 94 (1980))).5 “A fundamental precept of common-law adjudication, embodied in the

related doctrines of collateral estoppel and res judicata, is that a “right, question or fact distinctly
put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in
a subsequent suit between the same parties or their privies.” Montana v. United States, 440 U.S.
147, 153 (1979) (citing S. Pac. R.R. Co. v. United States, 168 U.S. 1, 48-49 (1897)).
As the United States Supreme Court has explained, the preclusive effect of a prior federal
court judgment is determined by applying the rules of federal common law, and the doctrine is
subject to due process limitations. Taylor v. Sturgell, 553 U.S. 880, 891 (2008) (citing Semtek Int’l
Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-08 (2001); Richards v. Jefferson Cnty., 517 U.S.
793, 797 (1996)). Thus, for judgments rendered in cases proceeding on federal-question

jurisdiction, courts will apply the federal common law rules of res judicata. Id. “For judgments in

5 Indeed, the Court of Appeals for the Eleventh Circuit has explained that claim preclusion, or res judicata,

treats a judgment, once rendered, as the full measure of relief to be accorded between the
same parties on the same “claim” or “cause of action.” When the plaintiff obtains a
judgment in his favor, his claim “merges” in the judgment; he may seek no further relief
on that claim in a separate action. Conversely, when a judgment is rendered for a defendant,
the plaintiff’s claim is extinguished; the judgment then acts as a “bar.” Under these rules
of claim preclusion, the effect of a judgment extends to the litigation of all issues relevant
to the same claim between the same parties, whether or not raised at trial. The aim of claim
preclusion is thus to avoid multiple suits or identical entitlement or obligations between
the same parties, accompanied, as they would be by the redetermination of identical issues
of duty and breach.

Empire Fire & Marine Ins. Co. v. J. Transp., Inc., 880 F.2d 1291, 1295 (11th Cir. 1989) (citations omitted);
see also Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., 140 S. Ct. 1589, 1594-95 (2020).
diversity cases, federal law incorporates the rules of preclusion applied by the State in which the
rendering court sits.” Id. at 891 n.4 (citing Semtek Int’l Inc., 531 U.S. at 508).
The principle of res judicata serves several policies important to our judicial system.
By declaring an end to litigation, the doctrine adds certainty and stability to social
institutions. This certainty in turn generates public respect for the courts. By
preventing relitigation of issues, res judicata conserves judicial time and resources.
It also supports several private interests, including avoidance of substantial
litigation expenses, protection from harassment or coercion by lawsuit, and
avoidance of conflicting rights and duties from inconsistent judgments.
Sw. Airlines Co. v. Tex. Int’l Airlines, Inc., 546 F.2d 84, 94 (5th Cir. 1977) (footnotes omitted).6
A party seeking to invoke res judicata must show that the prior action: (1) was rendered
by a court of competent jurisdiction; (2) was a final adjudication on the merits; (3) involved the
same parties, or those in privity with them; and (4) involved the same causes of action. See Hart
v. Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1470 (11th Cir. 1986); see also Ray v. Tenn. Valley
Auth., 677 F.2d 818, 821 (11th Cir. 1982) (quoting Stevenson v. Int’l Paper Co., 516 F.2d 103,
108 (5th Cir. 1975)). “[T]he burden is on the party asserting res judicata . . . to show that the later-
filed suit is barred.” In re Piper Aircraft Corp., 244 F.3d at 1296 (citing Thorsteinsson v. M/V
Drangur, 891 F.2d 1547, 1551 (11th Cir. 1990)). In addition, “[i]f even one of these elements is
missing, res judicata is inapplicable.” Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir.
1992) (citing NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990)).
Here, the parties dispute many of the res judicata factors and their applicability to this
litigation. However, Plaintiff conceded the existence of certain elements at the hearing. The Court
proceeds to examine each element and, as the most significant disagreement relates to whether
there was a final adjudication on the merits in Hilliard I, the Court will address that element last.

6 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as
binding precedent all decisions of the Court of Appeals for the Fifth Circuit issued prior to October 1, 1981.
A. Prior Decision Rendered by a Court of Competent Jurisdiction
The parties in this case agree that the judgment in Hilliard I was rendered by a court of
competent jurisdiction—namely, another court within this District—and the Court agrees. The
claims in Hilliard I were based primarily upon federal civil rights statutes, and the court therefore
had federal-question jurisdiction over the issues presented. Thus, the Hilliard I court had the

authority to resolve the claims in that action. See Langermann v. Dubbin, 613 F. App’x 850, 853
(11th Cir. 2015); see also Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1502 (11th Cir.
1990).
B. Same Parties or Their Privies
The next element of res judicata “provides that a judgment will only bar subsequent claims
involving the same parties or their privies.” Citibank, N.A., 904 F.2d at 1502. As such,
Identity of parties concerns two sets of persons. The first set is comprised of those
persons who were actual parties in the original action. . . . The second set of persons
to whom res judicata applies is composed of those persons who are or were in
privity with the parties to the original suit.
Hunt, 891 F.2d at 1560 (citing Lary v. Ansari, 817 F.2d 1521, 1523 (11th Cir. 1987)). “‘Privity’
describes a relationship between one who is a party of record and a nonparty that is sufficiently
close so a judgment for or against the party should bind or protect the nonparty.” Hart, 787 F.2d
at 1472; see also Sw. Airlines Co., 546 F.2d at 94-95 (noting that “federal courts have repeatedly
held that judgments can bind persons not party to the litigation in question,” and extends to those
nonparties in privity with the party of record in the prior action).
“The general rule is that ‘one is not bound by a judgment in personam in a litigation in
which he is not designated as a party or to which he has not been made a party by service of
process.’” Baloco v. Drummond Co., 767 F.3d 1229, 1249 (11th Cir. 2014) (quoting Taylor, 553
U.S. at 884; Hansberry v. Lee, 311 U.S. 32, 40 (1940)). “However, a nonparty is bound by a
judgment if he was in privity with a party to that judgment.” DeBose v. Ellucian Co., 802 F. App’x
429, 434 (11th Cir. 2019) (citing Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th
Cir. 2010)); see also Davis v. Davis, 551 F. App’x 991, 996 (11th Cir. 2014) (explaining that “an
unserved defendant in the first action may not affirmatively assert the doctrine of res judicata as a
defense to the second action—unless the unserved defendant was in privity with a party to the first

action”).
Upon review, the Court concludes that the “identity of the parties” element is satisfied in
this case. Undoubtedly, Plaintiff was and is an actual party to both Hilliard I and this action. In
addition, although Defendant was one of two named defendants7 in Hilliard I, he was later
dismissed from the case due to Plaintiff’s inability to timely serve him. Hilliard I, ECF No. [29].8
In their briefing on the instant Motion, the parties expended considerable effort disagreeing
about whether Defendant was an actual party or a nonparty in privity with HHA in Hilliard I.
Specifically, Plaintiff argued that this element could not be met in this case because Defendant
was not a party to Hilliard I and was never properly served. Notably, however, at the hearing,

Plaintiff conceded that Defendant is in privity with HHA, due to the employer-employee and/or
principal-agent relationship between them. See Citibank, N.A., 904 F.2d at 1502 (concluding “that
employer-employee or principal-agent relationships may ground a claim preclusion defense,
regardless of which party to the relationship was first sued,” and barring a suit against an employer

7 As discussed above, HHA was ultimately the only other named defendant in Hilliard I. Hilliard I, ECF
No. [68] ¶ 7. HHA is not a party to the instant action.

8 It is worth noting that a plaintiff cannot avoid the preclusive effects of the res judicata doctrine simply by
naming additional defendants in the new action, where the plaintiff’s subsequent claims arose from the
same facts as those at issue in the prior action and could therefore have been brought previously. In fact,
“the Eleventh Circuit has recognized that a party ‘may not avoid the application of re[s] judicata by adding
new parties.’” Ardis v. Anderson, 662 F. App’x 729, 732 (11th Cir. 2016) (quoting Endsley v. City of Macon,
Ga., 321 F. App’x 811, 814 (11th Cir. 2008)).
after an action against its employee/agent directors was dismissed with prejudice); see also
DeBose, 802 F. App’x at 434 (same). The Court is satisfied that privity exists here.
“There is privity between officers of the same government so that a judgment in a suit
between a party and a representative . . . is res judicata in [relitigation] of the same issue between
that party and another officer of the government.” Montford v. Metro. Dade Cnty. Gov’t, No. 98-

1305-CIV, 2002 WL 34382746, at *3 (S.D. Fla. Mar. 27, 2002) (quoting Sunshine Anthracite Coal
Co. v. Adkins, 310 U.S. 381, 402-03 (1940)). Defendant is employed by HHA and the relevant
claims against HHA in Hilliard I were, in large part, premised upon Defendant’s conduct during
the course of his employment on May 17, 2016. As such, the Court finds that the privity
requirement is satisfied. See Laster v. City of Tampa Police Dep’t, 575 F. App’x 869, 872 n.3 (11th
Cir. 2014) (“Claim preclusion would apply because the claims were raised, though abandoned
prior to trial; there was a final judgment on the merits by a court of competent jurisdiction; and the
City was in privity with [the officer] because the City’s liability was based solely on [the officer’s]
actions.”); see also Mann v. Palmer, 713 F.3d 1306, 1311 (11th Cir. 2013) (“Because Mann’s new

complaint is against the Warden and Secretary of the Department of Corrections in their official
capacities, and his earlier complaint also named the Warden and Secretary of the Department of
Corrections in their official capacities [in addition to other defendants], the defendants have
established identity of parties.”); see also Shore v. Wilmington Tr., No. 16-25373-CIV, 2017 WL
1494509, at *4 (S.D. Fla. Apr. 20, 2017) (finding that privity existed where all of the claims against
the defendant were solely based on the alleged wrongful conduct of its agent and not on any
“concurrent or consecutive acts” by the defendant).
C. Same Causes of Action
One of the most central inquiries in the res judicata analysis is whether the claims asserted
in the prior suit are the same as those asserted in the subsequent action. See Andreu v. HP Inc., 272
F. Supp. 3d 1329, 1333 (S.D. Fla. 2017). Notably, however, this element does not require that the
literal causes of action be identical across two cases. Rather, res judicata’s bar also encompasses
those claims that could have been raised previously. See Trustmark Ins. Co. v. ESLU, Inc., 299
F.3d 1265, 1269 (11th Cir. 2002) (citing In re Piper Aircraft Corp., 244 F.3d at 1296); see also

Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003). As such, “[t]he issue is not
what effect the present claim might have had on the earlier one, but whether the same facts are
involved in both cases, so that the present claim could have been effectively litigated with the prior
one.” In re Piper Aircraft Corp., 244 F.3d at 1301 (quoting In re Baudoin, 981 F.2d 736, 743 (5th
Cir. 1993)). Courts must therefore determine whether the claims asserted in the prior and present
actions “arise out of the same nucleus of operative fact, or [are] based upon the same factual
predicate,” such that the two cases are essentially the same “claim.” Id. at 1297 (citation omitted).9
In this circuit, the determination of whether the causes of action in two
proceedings are the same is governed by whether the primary right and duty are the
same. Hunt, 891 F.2d at 1561 (quoting Kemp v. Birmingham News Co., 608 F.2d
1049, 1052 (5th Cir. 1979)); I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d
1541, 1549 (11th Cir. 1986). The test is one of substance, not form. I.A. Durbin,
793 F.2d at 1549. Res judicata applies “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.’” Hunt, 891 F.2d at 1561 (despite variations
in legal theories used and remedies sought, second suit barred because wrongful act
in both cases was flying Confederate flag atop state capitol) (quoting Olmstead v.
Amoco Oil Co., 725 F.2d 627, 632 (11th Cir. 1984)).
Manning, 953 F.2d at 1358-59; see also In re Piper Aircraft Corp., 244 F.3d at 1296-97 (“[C]laims
are part of the same cause of action for res judicata purposes when they arise out of the same
transaction or series of transactions.”); Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th

9 As another court in this District previously noted, the Eleventh Circuit has utilized four tests in determining
the similarity of causes of action for res judicata purposes: “(1) primary rights and duties; (2) nature of the
wrongs or violations; (3) operative nucleus of fact; and (4) same transaction or series of transactions.”
Heller v. Plave, 743 F. Supp. 1553, 1567 (S.D. Fla. 1990) (collecting cases).
Cir. 1999) (“It is now said, in general, that if a case arises out of the same nucleus of operative
fact, or is based upon the same factual predicate, as a former action, that the two cases are really
the same ‘claim’ or ‘cause of action’ for purposes of res judicata.”).10
Regarding the element of the similarity of claims, Plaintiff has presented seemingly
conflicting arguments and admissions regarding the nature of the claims in this action. In

particular, Plaintiff conceded at the hearing that the claims in this action are the same causes of
action, as pled, as those brought in Hilliard I. Plaintiff further agreed that these claims were
founded upon the same incident between Plaintiff and Defendant on May 17, 2016, as in Hilliard
I. Nevertheless, Plaintiff takes the position in his briefing that res judicata does not apply in this
case because Defendant’s trial testimony unearthed new facts which were previously unknown to
him, establishing the causes of action Plaintiff now asserts. Plaintiff’s competing statements cannot
be reconciled with the controlling law in this Circuit that, “if a case arises out of the same nucleus
of operative fact, or is based upon the same factual predicate, as a former action, [] the two cases
are really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.” Ragsdale, 193 F.3d

at 1239. Indeed, upon review of Defendant’s trial testimony, the Court finds no significant factual
deviation or revelation that would justify Plaintiff’s decision to bring these “new” causes of action

10 “In this Circuit, therefore, res judicata does not bar a claim that was not in existence at the time of the
original action unless the facts underlying the claim were actually raised in that action.” In re Piper Aircraft
Corp., 244 F.3d at 1299. The bar on litigating previously available causes of action precludes a plaintiff
from “fil[ing] duplicative complaints in order to expand their legal rights” and “ensures that a plaintiff may
not ‘split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which
relief is sought, and leave the rest to be presented in a second suit, if the first fails.’” Vanover v. NCO Fin.
Servs., Inc., 857 F.3d 833, 841 (11th Cir. 2017) (quoting Greene v. H&R Block E. Enters., Inc., 727 F.
Supp. 2d 1363, 1367 (S.D. Fla. 2010)). Accordingly, the rule requires that “a plaintiff [] assert all of its
causes of action arising from a common set of facts in one lawsuit.” Id. (quoting Katz v. Gerardi, 655 F.3d
1212, 1217 (10th Cir. 2011)); see also Murray v. US Bank, N.A., No. 18-cv-80159, 2018 WL 3439451, at
*3 (S.D. Fla. July 17, 2018). In other words, a litigant “cannot avoid preclusion by grounding his second
action on a different theory of liability. Claim preclusion ‘extends 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.’” Hart, 787 F.2d at 1470-71 (quoting Olmstead, 725 F.2d at 632).
based upon the same nucleus of operative facts. See generally Hilliard I, ECF No. [138]; cf. Lucky
Brand Dungarees, Inc., 140 S. Ct. at 1596 (“Claim preclusion generally ‘does not bar claims that
are predicated on events that postdate the filing of the initial complaint.’” (quoting Whole Woman’s
Health v. Hellerstedt, 579 U.S. ––––, ––––, 136 S. Ct. 2292, 2305 (2016))). Notably, even a
cursory comparison of the Amended Complaint in this action, ECF No. [8], and the Second

Amended Complaint in the prior action, Hilliard I, ECF No. [68], demonstrates that Plaintiff had
all of the necessary facts throughout the proceedings in Hilliard I. Despite having all relevant facts,
Plaintiff failed to timely assert his state and federal claims for false arrest against Defendant during
his prior case.
Similarly, the Court finds no merit in Plaintiff’s argument that the claims in this case are
not barred under res judicata because they arose after Hilliard I. As Plaintiff acknowledged during
the hearing on this Motion, the causes of action in this case are almost identical to those in Hilliard
I and they are based upon the same events on May 17, 2016. That the claims in this action assert
different theories of liability than the claims in Hilliard I is immaterial to the Court’s analysis. As

with many of the claims that were ultimately adjudicated in Hilliard I, both claims in this action
center around whether Plaintiff’s Fourth Amendment rights were violated when Officer Gutierrez
arrested him. See Hunt, 891 F.2d at 1561 (“While it is arguable that the causes of action are
different because of the different remedies sought, the rights claimed and the wrongs alleged are
almost identical. Further, res judicata operates to preclude not only the issues raised in the prior
action, but issues which could have been raised in the prior action.”). As such, these claims could
have been brought in Hilliard I. See Cheshire Bridge Holdings, LLC v. City of Atlanta, Ga., 777
F. App’x 310, 321 (11th Cir. 2019) (“Claims that could have been brought are only precluded if
they arise out of the same nucleus of operative facts in the prior case.”); see also Baloco, 767 F.3d
at 1247 (precluding claims “arising out of the same nucleus of operative fact which could have
been raised in the prior case”).
In sum, the claims in this case arise out of the same nucleus of operative facts as those
previously asserted in Hilliard I, involved the same rights and duties as those at issue in the earlier
action, and raised similar challenges to those previously adjudicated. This case therefore involves

the same causes of action as those presented in Hilliard I, which Plaintiff could have litigated
previously. See Jaffree v. Wallace, 837 F.2d 1461, 1469 (11th Cir. 1988) (precluding second suit
where the two cases “arose from the same ‘operative nucleus of facts,” “involved the same
‘primary right and duty,’” sued similar parties as those in the prior suit, and asserted the same
constitutional challenges in both actions).
D. Final Judgment on the Merits
Lastly, the Court addresses whether there was a final adjudication on the merits in Hilliard
I. Under res judicata, “a final judgment on the merits bars further claims by parties or their privies
based on the same cause of action.” Montana, 440 U.S. at 153. “Res judicata prevents litigation of

all grounds for, or defenses to, recovery that were previously available to the parties, regardless of
whether they were asserted or determined in the prior proceeding.” Brown v. Felsen, 442 U.S. 127,
131 (1979) (citing Chicot Cnty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378 (1940)).
“It is a finality as to the claim or demand in controversy, concluding parties and those in privity
with them, not only as to every matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which might have been offered for that
purpose.” Nevada v. United States, 463 U.S. 110, 129-30 (1983).
“In a conventional case, ‘[a] final order is one that ends the litigation on the merits and
leaves nothing for the court to do but execute its judgment.’” Thomas v. Blue Cross & Blue Shield
Ass’n, 594 F.3d 823, 829 (11th Cir. 2010) (citation omitted). Indeed, “disposition of a case on
summary judgment grounds represents a final adjudication on the merits.” Griffith v. Wainwright,
772 F.2d 822, 825 n.4 (11th Cir. 1985); see also Anthony v. Marion Cnty. Gen. Hosp., 617 F.2d
1164, 1170 (5th Cir. 1980) (explaining that “a dismissal with prejudice is deemed an adjudication
on the merits for the purposes of res judicata”). Stated differently, “[a] judgment rendered upon a

motion for summary judgment is . . . entitled to the full preclusive effect of any final judgment.”
Bazile v. Lucent Techs., 403 F. Supp. 2d 1174, 1181 (S.D. Fla. 2005) (citing Exhibitors Poster
Exch., Inc. v. Nat’l Screen Serv. Corp., 517 F.2d 110 (5th Cir. 1975)). “When a judgment is
rendered for the defendant, the plaintiff’s claim is extinguished; res judicata bars the plaintiff from
relitigating that same claim against the same defendant.” Akanthos Cap. Mgmt., LLC v. Atlanticus
Holdings Corp., 734 F.3d 1269, 1271 (11th Cir. 2013) (citing Jaffree, 837 F.2d at 1466-67 (stating
that finality for purposes of res judicata is when the district court issues its judgment)).
Although “a judgment is only conclusive regarding the matters that the parties might have
litigated,” “for res judicata purposes, claims that could have been brought are claims in existence

at the time the original complaint [was] filed.” Shurick v. Boeing Co., 623 F.3d 1114, 1118 (11th
Cir. 2010) (quoting Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357 (11th Cir. 1998)).
As such,
when a court of competent jurisdiction has entered a final judgment on the merits
of a cause of action, the parties to the suit and their privies are thereafter bound “not
only as to every matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which might have been
offered for that purpose.
Gjellum v. City of Birmingham, Ala., 829 F.2d 1056, 1059-60 (11th Cir. 1987) (quoting Sea-Land
Servs., Inc. v. Gaudet, 414 U.S. 573, 578-79 (1974)).
A decision on the substantive merits of a claim is one that addresses the persuasiveness and
substantive shortcomings of the claims, as opposed to procedural hurdles such as the court’s
authority to adjudicate the claims. See Davila, 326 F.3d at 1189. Moreover, the fact that a decision
resolves a party’s claims without addressing each individual issue in detail does not automatically
foreclose an adjudication on the merits. In fact, the Eleventh Circuit has stated that “any contention
that a judgment on the merits occurs only when the rendering court has addressed the substance of
every claim to be later precluded is baseless.” Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 893

(11th Cir. 2013); see also Semtek Int’l Inc., 531 U.S. at 501-02 (“The original connotation of an
‘on the merits’ adjudication is one that actually ‘pass[es] directly on the substance of [a particular]
claim’ before the court.” (citation omitted)); Montford, 2002 WL 34382746, at *2 (The Eleventh
Circuit has explained that “‘with prejudice’ and ‘on the merits’ are synonymous terms, both of
which invoke the doctrine of claim preclusion.” (quoting Citibank, N.A., 904 F.2d at 1501)).
In this case, Defendant argues that there was a final judgment on the merits of the claims
asserted in Hilliard I—the Order on summary judgment adjudicated the merits of the § 1983 claims
in Counts I, III, V, and VI in HHA’s favor and a jury returned a verdict for HHA on the FHA
Retaliation claim in Count VII following trial. See generally Hilliard I, 2020 WL 554540, at *4-
11; see also Hilliard I, ECF No. [133].11 Ultimately, the court in Hilliard I entered final judgment

for HHA and against Plaintiff. See Hilliard I, ECF No. [134]. Plaintiff now argues that there was
no final judgment on the merits of any claims asserted against Officer Gutierrez in Hilliard I, as
he was dismissed from the case without prejudice. In addition, Plaintiff contends that the Order in
Hilliard I did not specifically address the state tort claim of false arrest or the Fourth Amendment
violation on the merits, even when analyzing the viability of the § 1983 false arrest claim against
HHA. Instead, Plaintiff states that the false arrest claim against HHA was never adjudicated on the

11 In resolving Defendant’s Motion, the Court will focus on the § 1983 claims that were adjudicated in the
summary judgment order in Hilliard I, rather than on the Fair Housing Act Retaliation claim that was tried,
because the § 1983 claims are directly relevant to the claims asserted against Defendant in this case.
merits because “the legal theory on which it was adjudicated was vicarious liability under section
1983, with the Court specifically stating it was not a tort claim.” ECF No. [14] at 8. Because he
believes that the false arrest claims were never adjudicated on the merits, Plaintiff maintains that
res judicata does not bar this action.
The Court concludes that Plaintiff’s arguments regarding the final judgment on the merits

fail for a number of reasons. First, Plaintiff’s position is inconsistent and contradictory to his
concessions on the other res judicata elements. Indeed, the argument that Defendant cannot rely
on the adjudication of the claims against HHA to support res judicata is plainly at odds with
Plaintiff’s concessions on privity and the nucleus of operative fact in this case. As explained above,
“Res judicata [] applies to those persons in privity with the parties. ‘Privity’ describes a relationship
between one who is a party of record and a nonparty that is sufficiently close so a judgment for or
against the party should bind or protect the nonparty.” Hart, 787 F.2d at 1472 (citing Sw. Airlines
Co., 546 F.2d at 95). Generally, “[u]nder res judicata, a final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that were or could have been raised in

that action.” Allen, 449 U.S. at 94 (citing Cromwell v. Cnty. of Sac, 94 U.S. 351, 352 (1876)); see
also Richards, 517 U.S. at 797 n.4 (“The doctrine of res judicata rests at bottom upon the ground
that the party to be affected, or some other with whom he is in privity, has litigated or had an
opportunity to litigate the same matter in a former action in a court of competent jurisdiction.”
(citing S. Pac. R.R. Co., 168 U.S. at 48)).
Thus, inherent in Plaintiff’s admission that Defendant is in privity with HHA is the
underlying acknowledgement that Defendant and HHA have a sufficiently close relationship (i.e.,
their employer-employee relationship) that he can claim the protections of the judgment in Hilliard
I for res judicata purposes. Further, as discussed above, the Court finds that Defendant is in privity
with HHA and, as a result, Defendant may properly seek to preclude the claims asserted against
him in this action. See Nevada, 463 U.S. at 129-30 (explaining the finality of a claim as it relates
to the parties or those in privity with the parties); see also Montana, 440 U.S. at 153 (same).
In addition, this conclusion is buttressed by the nature of the relief Plaintiff sought in the
Second Amended Complaint in Hilliard I—namely, seeking to hold Defendant and HHA jointly

and severally liable and to hold HHA vicariously liable for Officer Gutierrez’s actions. See Hilliard
I, ECF No. [68] at 1, 10-11. The inconsistency is evident but the argument is unconvincing. Here,
Plaintiff asserted a claim—albeit unsuccessfully—for § 1983 municipal liability under a theory of
respondeat superior in one action, only to then argue that the Hilliard I judgment cannot be applied
to bar the instant claims against Defendant that are based on nearly identical facts as the claims in
the prior action. “Other courts have similarly held that a party could not argue an alter ego or
vicarious theory of liability while maintaining, for purposes of res judicata, that the relevant
entities were not in privity with one another.” Bakov v. Consol. Travel Holdings Grp., No. 0:19-
cv-61509, 2020 WL 9934410, at *3 (S.D. Fla. Apr. 9, 2020) (citing Robinson v. Volkswagenwerk

AG, 56 F.3d 1268, 1275 (10th Cir. 1995) (“The product liability claim against Volkswagen AG
was previously asserted against Audi NSU, the difference being that plaintiffs now allege that
Volkswagen AG had a controlling relationship with Audi NSU and is therefore responsible for the
torts of its subsidiary. If true, however, this “near alter ego” relationship would be sufficient to
establish “privity” between the two corporations such that Volkswagen AG is entitled to assert the
previous judgment as a bar to the claim now asserted.”); United States v. Avatar Holdings, Inc.,
No. 93-281-CIV-FTM-21, 1995 WL 871260, at *21 (M.D. Fla. Nov. 22, 1995) (“The Court []
agrees with Avatar Holdings’ position that Plaintiff may not now be permitted to argue that Avatar
Holdings is liable for the actions of its subsidiary under a theory of parent control of its subsidiary
and, at the same time, assert that although it is a parent corporation, it is not in privity with the
subsidiary for the purpose of res judicata.”)).12
Plaintiff’s argument regarding the absence of a final judgment on the merits of the claims
against Defendant is equally unpersuasive because, as Defendant notes, it ignores the relevant
inquiry for determining whether res judicata applies. Specifically, with regard to barring claims

under res judicata, it is well established that “[a] final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that were or could have been raised
in that action.” Federated Dep’t Stores v. Moitie, 452 U.S. 394, 398 (1981) (emphasis added).
Notably, “the effect of a judgment extends to the litigation of all issues relevant to the same claim
between the same parties, whether or not raised at trial.” Kaspar Wire Works, Inc. v. Leco Eng’g
& Mach., Inc., 575 F.2d 530, 535 (5th Cir. 1978); see also Olmstead, 725 F.2d at 631-32 (“The
bar extends 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.’”). It is therefore widely
recognized that the claims barred under res judicata are not limited only to those claims that were

specifically raised and adjudicated previously. Rather, this bar extends to any claims arising from
the same nucleus of operative facts that could have been asserted in the prior action. In this case,
the barred claims span beyond those related to HHA’s liability for Officer Gutierrez’s actions and

12 See also Freecharm Ltd. v. Atlas Wealth Holdings Corp., No. 11-20003-CIV, 2011 WL 4591929, at *7
(S.D. Fla. Sept. 30, 2011) (“Freecharm cannot attempt to assert liability against Atlas Wealth and Atlas One
Holdings for the actions of their subsidiaries through their direction, control and management of Atlas One
Financial, while simultaneously arguing that there is no privity between the parties. Likewise, Freecharm
cannot argue that the individual defendants are liable in their capacities solely as officers for Atlas Wealth
while in the same breath argue that the individual defendants are responsible for Atlas One Financial’s
“rogue securities brokerage operation.” Simply stated, Freecharm cannot have its cake and eat it too. The
complaint in its entirety, as well as the facts and arguments presented on summary judgment, establish that
the interests of the Arbitration Respondents are parallel to Defendants’ interest in this action. Those interests
were adjudicated and represented adequately during the arbitration proceedings. There is indeed privity
between the parties.”), aff’d, 499 F. App’x 941 (11th Cir. 2012).
necessarily include Plaintiff’s state and federal false arrest claims against Defendant. As such, the
Court finds that the final judgment in Hilliard I precludes Plaintiff’s claims in this action.
Additionally, Plaintiff’s most concerning argument on this issue is that the summary
judgment order in Hilliard I did not address the merits of the false arrest claim, even as to HHA,
and that the only issue the court actually adjudicated on the merits was HHA’s vicarious liability.

See ECF No. [14] at 6, 8. The argument suggesting that the claim of false arrest was not at issue,
and, thus, not adjudicated on the merits, lacks merit. In the summary judgment order, the court in
Hilliard I conducted a detailed analysis and ultimately granted judgment as a matter of law for
HHA on Count I—namely, “False Arrest and/or Imprisonment – 42 U.S.C. § 1983. See Hilliard I,
ECF No. [68] at 10.13 Courts are not required to address every possible issue presented in order to
sufficiently adjudicate claims on the merits. See Lobo, 704 F.3d at 893. The court in Hilliard I
clearly adjudicated the merits of the claims against HHA by setting forth a well-reasoned
discussion “pass[ing] directly on the substance of [the] claim[s]” at issue on summary judgment.
Semtek Int’l Inc., 531 U.S. at 501-02.

Moreover, the summary judgment order in Hilliard I did not, as Plaintiff asserts, limit its
analysis on Count I to whether HHA could be held vicariously liable for Officer Gutierrez’s actions
pursuant to the § 1983 false arrest claim. While the Order did preliminarily address the impropriety
of seeking vicarious liability from a municipal entity on a § 1983 claim, the court then devoted an
additional seven pages to the merits of the claims against HHA for municipal liability under
§ 1983. See Hilliard I, ECF No. [106] at 6-8 (discussing vicarious liability under state tort law
versus under § 1983), 9-16 (discussing municipal liability under § 1983, including the existence
of a widespread custom or practice of constitutional violations). Ultimately, the court in Hilliard I

13 It is worth noting that Plaintiff’s argument that the Hilliard I court failed to address the merits of the false
arrest claim further supports the conclusion that the claims in this action could have been raised previously.
Case No. 21-cv-20513-BLOOM/Otazo-Reyes

found that HHA was entitled to summary judgment on Count I, among others, because the claim
for § 1983 false arrest against HHA was unsupported by any record evidence. Undoubtedly, the
summary judgment order was a final judgment on the merits of Plaintiffs false arrest claim that
bars the claims asserted in this action. See Griffith, 772 F.2d at 825 n.4 ([D]isposition of a case
on summary judgment grounds represents a final adjudication on the merits.”).

In sum, the Court finds that each res judicata element has been satisfied and dismissal of
this action is therefore warranted.!*
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion, ECF No.
[12], is GRANTED. The above-styled case is DISMISSED WITH PREJUDICE. The Clerk of
Court is directed to CLOSE this case. To the extent not otherwise disposed of, any pending
motions are DENIED AS MOOT and all deadlines are TERMINATED.
DONE AND ORDERED in Chambers at Miami, Florida, Y 1, 2021.

BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

Although Plaintiff also requests leave to amend in passing, see ECF No. [14] at 9, the Court finds this
request to be improper, unsupported by any argument or supporting law, and futile, as no additional
allegations could overcome the bar of res judicata in this case. As such, this cursory request to amend is
denied. See Ferrier y. Atria, 728 F. App’x 958, 962 (11th Cir. 2018).

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10119317. Public record. Not legal advice.