Starship Enterprises of Atlanta, Inc. v. Coweta County, Georgia

Case: 11-11287 Date Filed: 02/14/2013 Page: 1 of 22

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-11287

________________________

D.C. Docket No. 3:09-cv-00123-WBH

STARSHIP ENTERPRISES OF ATLANTA, INC.,

Plaintiff-Appellant,

versus

COWETA COUNTY, GEORGIA,

EVA WAGNER,

in her individual and official capacity,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(February 14, 2013)

Before TJOFLAT, CARNES and JORDAN, Circuit Judges.

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TJOFLAT, Circuit Judge:

Starship Enterprises of Atlanta, Inc. (“Starship”), a purveyor of various

novelty items including sexually explicit materials, appeals the judgment of the

District Court dismissing under Federal Rule of Civil Procedure 12(b)(6) its federal

constitutional claims brought under 42 U.S.C. § 19831 against Coweta County,

Georgia, and Eva Wagner, the Coweta County Business License Director,2 and

refusing to exercise supplemental jurisdiction over its state constitutional claims. 3

Starship’s claims stem from the County’s decision to uphold Wagner’s denial of its

application for a business license to operate a retail bookstore. Starship promptly

challenged that decision in two courts. First, Starship petitioned the Superior

Court of Coweta County for a writ of mandamus directing the County and Wagner

to grant its license application. Then, four months later, it brought in the United

1

42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proceeding for redress.

2

Starship sued Wagner in her official and individual capacities. Starship appeals the

judgment for Wagner in her individual capacity.

3

See 28 U.S.C. § 1367 (c)(3) (“The district courts may decline to exercise supplemental

jurisdiction over a claim . . . if the district court has dismissed all claims over which it has

original jurisdiction.”).

2

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States District Court for the Northern District of Georgia the action now before us

on appeal. While this action was still in the pleading stage, the Superior Court

granted Starship a writ of mandamus, and Wagner issued the business license at

issue. The District Court then dismissed Starship’s complaint, concluding that the

§ 1983 claims arising from denial of the business license were barred by the

doctrine of res judicata and that the § 1983 claims not barred by the doctrine failed

as a matter of law. We find no error in the District Court’s disposition of

Starship’s § 1983 claims and the court’s decision not to exercise supplemental

jurisdiction over Starship’s state law claims and therefore affirm.

I.

We begin with a recitation of the relevant facts, which, for the most part, are

not in dispute. 4 Starship describes itself as a commercial business that sells a wide

variety of items, including tobacco products, clothing, and novelty items. In

addition, it sells some sexually explicit videos, DVDs, and magazines. Starship’s

stores vary their inventory, use of floor space, and sales of sexually explicit

material to comply with local ordinances under which the stores operate.

4

We take the facts from Starship’s first amended complaint, as amended, and the

documents Coweta County and Wagner attached to their motion to dismiss and their answer.

The District Court considered those documents in granting the defendants’ motion to dismiss.

3

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In April 2008, Starship leased an empty building in an unincorporated area

of Coweta County; it had been used as a gym. Starship planned to renovate the

building and turn it into a retail store. On May 12, 2008, Starship’s attorney wrote

a letter advising the County Attorney that, pursuant to Chapter 18, Art. II, of the

Coweta County Ordinances (the “Business License Ordinance”), Starship planned

to apply for a general business license to operate the store. He was aware that if

the store sold a certain amount of adult material, the county would consider it a

sexually oriented business and Starship would not be able to obtain a general

business license. Instead, it would have to obtain a license pursuant to Chapter 18,

Art. VII, of the Coweta County Ordinances (the “Sexually Oriented Business

Ordinance”). Anticipating this situation, Starship’s attorney represented that

Starship would not be operating a facility that met the ordinance’s definition of a

sexually oriented business. 5

On July 17, 2008, Starship’s chief executive officer and its attorney met with

Coweta County officials, including the County Attorney, to explain Starship’s

business plan and to affirm that it would limit the sexually explicit material the

5

At the time of Starship’s application, Coweta County’s Sexually Oriented Business

Ordinance defined an adult bookstore as one having as a “‘substantial business purpose’ the

offering of materials which are intended to provide sexual stimulation or sexual gratification to

customers, and which are distinguished by or characterized by an emphasis on matter depicting,

describing or relating to specified sexual activities, or specified anatomical areas.” “Substantial

business purpose” was defined as involving 25 percent or more of floor area, gross sales, or

employee full-time equivalents. Record, vol. 1, no. 16, at 3–4.

4

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store sold so as to eliminate the need for a license for a sexually oriented business.

Starship needed a general business license because if it were to operate a sexually

oriented business, it could not obtain a permit to operate its store at the location

under lease, which was not zoned to allow a sexually oriented business. Nor could

it obtain a building permit to renovate the building it had leased.

Despite the County’s doubt that Starship’s store could qualify for a general

business license, the County Attorney wrote Starship’s counsel on November 18,

2008, stating that if Starship was not going to operate a sexually oriented business,

the County could not deny Starship the building permit it needed. In late

November, the County issued the permit.

Starship thereafter contacted Eva Wagner, the Coweta County Business

License Director, about applying for a general business license. She said that an

application would not be accepted until the renovations to the premises were

complete and a Certificate of Occupancy issued. Within two months, the

renovation was completed, at a cost of $150,000, and on January 19, 2009, a

Certificate of Occupancy was issued.

Meanwhile, on January 15, Starship’s attorney met with the County

Attorney, Wagner, and other county officials. Counsel presented the officials with

a diagram of the store, which showed where the adult material would be located on

the premises. Wagner informed the attorney that a general business license would

5

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issue after Starship fully stocked the store in accordance with the diagram. On

January 20, Starship filed its application for a general business license, and by

January 28, it had completed stocking the store. Wagner was scheduled to visit the

store on January 28 to view its inventory to determine whether it had been placed

as depicted in the diagram, but she failed to appear.

On January 26, the Coweta County Board of Commissioners repealed the

Sexually Oriented Business Ordinance, Coweta County, Ga., Code of Ordinances

Ch. 18, art. VII (2000), and adopted a Sexually Oriented Business Ordinance

containing a new definition of a sexually oriented business, Coweta County, Ga.,

Code of Ordinances Ch. 18, art. VII (2009). As described by Starship’s attorney at

his July 17 and January 15 meetings with county officials, Starship’s store would

not have been a sexually oriented business under the repealed ordinance. If

operated as stocked on January 26, however, the store would qualify as a sexually

oriented business under the new ordinance and, as such, would not qualify for a

general business license.

On February 2, Starship’s attorney wrote the County Commissioners a letter

stating that Starship planned to rearrange the store’s inventory so that it would not

constitute a sexually oriented business under the new Sexually Oriented Business

Ordinance and thus would qualify for a general business license. On February 6,

Wagner, applying the new Sexually Oriented Business Ordinance, denied

6

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Starship’s application for a general business license; she concluded that even

though the inventory had been arranged in accordance with the diagram shown

earlier, the store would be operating as a sexually oriented business under the new

ordinance.

On February 18, Starship appealed denial of its business license application

to the Coweta County Business and Occupational Tax Rate Review and Appeals

Committee (the “Appeals Committee”). The Appeals Committee held a series of

hearings concerning the denial. On May 20, the committee issued findings of fact

and voted 4 to 1 to recommend that the Board of County Commissioners reverse

the denial of Starship’s application. The Appeals Committee assumed that the

store would be operated as depicted in Starship’s attorney’s letter of February 2,

and found that the store would not constitute a sexually oriented business as

defined in the new ordinance; thus, the store could function as a regular business.

The Board of County Commissioners, however, voted unanimously on June 16 to

uphold Wagner’s denial of Starship’s application.

On July 13, 2009, Starship petitioned the Superior Court of Coweta County

for a writ of mandamus. The court granted the writ on April 19, 2010. Adopting

the Appeals Committee’s finding as to how Starship planned to operate the store,

the court reversed the Board of Commissioners’ decision affirming Wagner’s

denial of the business license and ordered that the license issue.

7

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At the time the Superior Court concluded the mandamus proceeding,

Starship’s lawsuit in the District Court against the County and Wagner, which had

been pending since November 16, 2009, was still in the pleading stage, awaiting

the court’s ruling on Starship’s motion for leave to file a first amended complaint.

On April 28, 2010, the court granted its motion. Starship’s first amended

complaint, as amended, contained ten causes of action; 6 eight sought legal and

6 Starship’s first amended complaint, as amended, alleged:

Causes of Action

92. Bill of Attainder. The combined legislative and executory acts of the

County Commissioners of Coweta County in establishing law s which were

then retroactively applied by the Commissioners and by Wagner to Starship

to prevent Starship’s business operation when the business license

application, and then the appeal of the denial of the business license came

before them constituted a violation of Article I, Section 10 of the United

States Constitution, and Ga. Constitution, Article I, Section I, Paragraph X,

as constituting a bill of attainder. The Coweta County Obscenity Ordinance

of January 26, 2009, and the Sexually Oriented Business Ordinance of

January 26, 2009, are each unconstitutional bills of attainder as applied to

Plaintiff.

93. Substantive D ue Process. The combined legislative and executory acts of

the County Commissioners of Coweta County in establishing laws which were

then retroactively applied to Starship to prevent its business operation when the

denial of the business license appeal came before them constituted a violation

of the substantive due process component of the Fourteenth Amendment of the

United States Constitution.

94. First Amendm ent United States Constitution as Written and Applied.

Application of the ordinances adopted by the County Commission in January

of 2009, in the manner described within this Complaint, constituted an “as

applied” breach of the First Amendment of the United States Constitution.

Additionally, in their actual writing, the provisions of Section 18-241

pertaining to and defining “adult bookstore or adult video store” constituted

8

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impermissible content based discrimination on its face in violation of the

14th and 1st Amendments of the United States Constitution.

95. Due Process Violation As Applied. Application of the ordinances

constituted an ‘as applied’ breach of the guarantees of the Constitution of the

State of Georgia and the Constitution of the United States to procedural due

process.

96. Advertising Sanctions as B reach of Georgia and United States

Constitutions. The advertising criteria of the ordinance by which the County

imposes the securing of an adult business license [along with the concomitant

site restrictions ] upon any business using certain words in its advertising

constitutes a violation of the Georgia Constitution Art I, Sec. I, Para 1 and 5

and the First Amendment of the United States Constitution.

97. Ordinance Violates First Amendm ent W here No Time Limit. The county

ordinance provisions concerning the issuance of, or denial of a business license,

effectively vested unfettered discretion to the county decision maker where

criteria not provided for in the County’s ordinances was used in denying

Starship’s application. Furthermore the county ordinance failed to contain a

limit on the amount of time within which the decision maker would issue or

deny the license was and remains unconstitutional, both facially and as

applied.

98. Wagner Individual and Official Liability for First and Fourteenth

Amendment Breach. Wagner’s rejection of Plaintiff’s business license

constituted a violation of the Plaintiff’s First and Fourteenth Amendment

rights. Wagner’s actions constituted a prior restraint in contravention of the

First Amendment and constituted content based discrimination against

Plaintiff’s protected First Amendment activity in violation of the Fourteenth

Amendment’s guarantee of equal protection. Wagner’s rejection and her

reasons for same were upheld by and ratified by the Coweta County

Commission reflective of the fact that her conduct was authorized, condoned

and ratified by the County Commission and her conduct was an effectuation

of County policy.

99. Denial of Equal Protection: At the time Starship’s business license

application was presented to Wagner, the decision to deny a certificate to any

business could be based only upon a determination by the director that the

“business engaged in unlawful activity or in such a manner as to violate lawful

ordinances adopted by the board of commissioners.” Sec. 18-41, Ordinances

of Coweta County, 2009.

9

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equitable relief under 42 U.S.C. § 1983 for the defendants’ alleged infringement of

a. Up to the point in time that the Starship submitted its application for a

business license, Coweta County applied the above-described criteria to all

businesses seeking business licenses.

b. Starship’s business license application was treated differently from other

persons and businesses applying for business licenses. When it applied for

the business license it was not “engaged in unlawful activity or in such a

manner as to violate lawful ordinances adopted by the Board of

Commissioners.”

c. There was no rational basis for the difference in treatment between Starship

and other applicants for business licenses.

d. The Defendants, and each of them, unequally applied the ordinances

pertaining to business license approval and denial for the purpose of

discriminating against Starship.

e. The Defendants’ willful denial of Plaintiff’s First Amendment rights as

demonstrated by the unequal treatment of Starship requires the use by this

Court of strict scrutiny in the assessment of the Defendants’ conduct.

100. Substantive and Procedural Due Process Under Georgia Law: The Code of

Ordinances of Coweta County has no written guidelines by which the Board of

Commissioners are to exercise their consideration of an appeal processed

through the Appeals Committee and no criteria by which they are to sustain

or reverse or otherwise reconsider the denial of a business license. The lack of

ascertainable standards by which to sustain or deny an appeal to the

Commission renders the appeal procedure arbitrary and capricious and as

applied violate the right to due process.

101. Starship’s inability to obtain a business license from Coweta County was

the result of the content of the stock and trade of Starship’s business.

102. Takings Under the Georgia Constitution. The leasehold interest which

Starship held at the time of the actions of the Defendants constituted a property

interest for purposes of Georgia law. Starship’s planned use of its leasehold

property was a use for which the leased property was proper pursuant to the

zoning law s of Coweta County at the time of the submission of the business

license application. After the adoption of the new ordinances on January

26, 2009, Starship’s planned use of its leasehold property was no longer a

use which the County was going to allow. Wagner’s formal denial of the

business license claimed that the “proposed location does not permit a

sexually oriented business.” The enforcement of the post- business license

submission ordinance constituted a takings of Starship’s leasehold interest,

actionable under the laws and Constitution of the State of Georgia, and

rendered the property effectively worthless to Starship.

10

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Starship’s federal constitutional rights, and two presented claims under the Georgia

Constitution. The ten causes of action were not pled as separate counts, each with

factual allegations germane to it. Rather, the ten causes of action were pled in

successive paragraphs, each based on one or more constitutional provisions or

theories of recovery, preceded by eighty-four paragraphs of factual allegations and

a series of exhibits, which were freestanding in that none were incorporated by

reference into any of the paragraphs asserting the causes of action. 7 For

7

Paragraphs 8 through 91 of the complaint are a “Factual Statement.” This statement

incorporates by reference several exhibits, each attached to the complaint by number. None of

the ten causes of action incorporates any of the allegations of paragraphs 8 through 91 or the

attached exhibits. Consequently, it is quite difficult to know which of the allegations is germane

to which claim.

We have been encountering complaints like Starship’s complaint for over two decades,

referring to them as “shotgun” pleadings. “[S]ince 1985 we have explicitly condemned shotgun

pleadings upward of fifty times.” Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 n.54 (11th

Cir. 2008). It appears that we haven’t said enough about the problems shotgun pleadings cause

the administration of civil justice, so we’ll try one more time.

“Shotgun pleadings delay cases by [w]asting scarce judicial and parajudicial resources.

[They] imped[e] the due administration of justice, and, in a very real sense, amount to

obstruction of justice. Although obstruction of justice is typically discussed in the context of

criminal contempt, the concept informs the rules of law—both substantive and procedural—that

have been devised to protect the courts and litigants (and therefore the public) from abusive

litigation tactics, like shotgun pleadings. If use of an abusive tactic is deliberate and actually

impedes the orderly litigation of the case, to wit: obstructs justice, the perpetrator could be cited

for criminal contempt.” Davis, 516 F.3d at 982 n.66 (internal quotation marks omitted); see also

PVC Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 806 (11th Cir. 2010)

(“Shotgun pleadings impede the administration of the district courts’ civil dockets in countless

ways. The district court, faced with a crowded docket and whose time is constrained by the press

of other business, is unable to squeeze the case down to its essentials. It is therefore left to this

court to sort out on appeal the meritorious issues from the unmeritorious ones, resulting in a

massive waste of judicial and private resources; moreover, the litigants suffer, and society loses

confidence in the courts' ability to administer justice.”) (internal quotation marks and citations

omitted).

11

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convenience, we recast the ten causes of action into seven separate counts, as

follows: 8

Count 1, Substantive Due Process. The County and Wagner deprived

Starship of the use of its store property between the date it filed its

application for a business license, January 20, 2009, and the date the

Superior Court issued the writ of mandamus, April 19, 2010, in

violation of the substantive component of the Due Process Clause of

the Fourteenth Amendment.

Count 2, Bill of Attainder. The County enacted two ordinances on

January 26, 2009, for the purpose of punishing Starship because it

sold adult materials in its stores, in violation of U.S. Const. Art. 1,

§ 10.

Count 3, Equal Protection. The County and Wagner denied Starship

the equal protection of the laws in violation of the Fourteenth

Amendment in denying its application for a business license when, at

the same time, it would have granted a business license to a similarly

situated applicant.

Count 4, FirstAmendment. The Business License Ordinance is

invalid on its face, in violation of the First Amendment, because it

In this case, defense counsel did not move the District Court to require Starship to file a

more definite statement pursuant to Fed. R. Civ. P. 12(e) on the ground that the complaint was

“so vague or ambiguous” as to render a response difficult. As officers of the court, the lawyers

in any civil case have a duty to assist the court in narrowing the issues. Where, as here, the

defense accepts a shotgun complaint and opts to reply to it in kind, the court must step in and

require a repleader on its own initiative. The court’s alternative is to allow, if not tacitly

encourage, the parties to build a pleading record of several volumes—in this case three volumes

that, taken together, are 4.25 inches thick.

8

Because the District Court, after disposing of Starship’s federal claims, properly

declined to exercise supplemental jurisdiction over the state law claims and dismissed them

without prejudice, we do not recast those claims.

12

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does not prescribe a limit of time in which the County must approve

or reject an application for a business license. 9

Count 5, First Amendment. The amount of time Wagner took to pass

on Starship’s application for a business license under the Business

License Ordinance deprived Starship of its First Amendment right to

speech in displaying for sale and selling adult materials at its store.

Count 6, First Amendment. The Sexually Oriented Business

Ordinance is invalid on its face because its regulation of adult

bookstores regulates speech of a specific content.

Count 7, First Amendment. Wagner denied Starship’s application for

a business license for the purpose of preventing Starship from

exercising speech in displaying for sale and selling adult materials at

its bookstore.10

The defendants moved the District Court to dismiss Starship’s complaint on

two alternative grounds. First, the complaint failed to state a claim for relief. 11

Second, the claims it presented were barred by the doctrine of res judicata because

Starship could have asserted those claims in the petition for writ of mandamus it

filed and litigated in the Superior Court of Coweta County. The court granted the

9

Some of Starship’s First Amendment causes of action are asserted only under the First

Amendment. We assume the pleader of the complaint intended to allege the violations under the

First Amendment as incorporated under the Due Process Clause of the Fourteenth Amendment.

See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940).

10

The complaint contains a cause of action asserting the violation of Starship’s right to

procedural due process under the Fourteenth Amendment. Record, vol. 1, no. 16, ¶ 95. Starship

withdrew the claim before the court ruled on the defendants’ motion to dismiss.

11

See Fed. R. Civ. P. 12(b)(6). The defendants’ answer to the complaint also alleged, as

an affirmative defense, that the complaint failed to state a claim for relief.

13

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defendants’ motion. It held that Counts 1, 3, 4, 5 and 7 were barred by the doctrine

of res judicata and that Counts 2 and 6 failed to state a claim for relief. The court

dismissed Count 2 on the ground that the ordinances cited in the complaint did not

constitute a Bill of Attainder because the ordinances did not single out Starship for

punishment. The court dismissed Count 6, which alleged that the Business License

Ordinance is facially invalid, on the ground that Count 6’s “conclusory

allegations” failed to state a claim for relief. The court then declined to exercise

supplemental jurisdiction over the remaining state law claims, dismissing them

without prejudice. Starship thereafter took this appeal.

II.

We review de novo a district court’s dismissal of a complaint, under Federal

Rule of Civil Procedure 12(b)(6), for failure to state a claim for relief after

accepting the factual allegations of the complaint as true and considering them in

the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th

Cir. 2003) (citing Monzon v. United States, 253 F.3d 567, 569–70 (11th Cir.

2001)). We review a district court’s res judicata determination de novo. E.E.O.C.

v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004) (citing Jang v.

United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000)). Finally, we review

for abuse of discretion a district court’s dismissal of state law claims pursuant to 28

U.S.C. § 1367(c)(2). With these standards in hand, we address in part III below

14

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the District Court’s disposition of five of the complaint’s seven counts under the

doctrine of res judicata and deal with two of the counts in the margin.12 We affirm

the court’s nonprejudicial dismissal of Starship’s state law claims without

discussion.

III.

The District Court found that Counts 1, 3, 4, 5, and 7 were barred by the

doctrine of res judicata. 13 When deciding whether claims are barred by res

12

Starship abandoned by operation of law its appeal of the District Court’s dismissal of

Count 6 by not addressing the merits of the ruling in its opening brief in this appeal. Access

Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or

argument that has not been briefed before the court is deemed abandoned and its merits will not

be addressed.”) We consider frivolous the Bill of Attainder claim in Count 2, and therefore do

not discuss it except to say that the challenged ordinances, on their face, do not target Starship.

Rather, they apply to any business in Coweta County. See Houston v. Williams, 547 F.3d 1357,

1364 (11th Cir. 2008) (quoting Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468, 97 S. Ct.

2777, 2803, 53 L. Ed. 2d 867 (1977)) (defining a Bill of Attainder as “a law that legislatively

determines guilt and inflicts punishment upon an identifiable individual without provision of the

protections of a judicial trial”).

13

Starship argues that the District Court erred in invoking the doctrine of res judicata in

dismissing some of its claims because its complaint contained insufficient facts on which to

adjudicate the defense. “[W]hen addressing a claim of res judicata, a court must examine the

record to determine whether the issue has been actually or could have been litigated and to

ascertain whether there has been a final judgment in the other proceeding.” Jones v. Gann, 703

F.2d 513, 515 (11th Cir. 1983) (citing Concordia v. Bendekovic, 693 F.2d 1073, 1076 (11th Cir.

1982)). 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. Id. Although analysis of

a Rule 12(b)(6) motion is “limited primarily to the face of the complaint and attachments

thereto,” a court may consider documents attached to the motion to dismiss if they are referred to

in the complaint and are central to the plaintiff’s claim. Brooks v. Blue Cross and Blue Shield of

Florida, 116 F.3d 1364, 1369–70 (11th Cir. 1997) (citation omitted). When the court considers

matters outside the pleadings, however, the Rule 12(b)(6) motion converts into a Rule 56 motion

for summary judgment. Garcia v. Copenhaver, Bell & Assocs, 104 F.3d 1256, 1266 n.11 (11th

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judicata, federal courts apply the law of the state in which they sit. Burr & Forman

v. Blair, 470 F.3d 1019, 1030 (11th Cir. 2006) (citing NAACP v. Hunt, 891 F.2d

1555, 1560 (11th Cir. 1990)). This case arose in Georgia, so we apply the Georgia

law of res judicata. In Georgia, “the doctrine of res judicata prevents the re-

litigation of all claims which have already been adjudicated, or which could have

been adjudicated, between identical parties or their privies in identical causes of

action.” James v. Intown Ventures, L.L.C., 290 Ga. 813, 816, 725 S.E.2d 213

Cir. 1997). The court must notify the parties and give them ten days to submit “any relevant

evidence and arguments in support or opposition to the merits.” Id. (citation omitted). We have

excused the ten-day requirement, however, when the “parties are aware of the court’s intent to

consider matters outside the record and have presented all the materials and arguments they

would have if proper notice had been given.” Id. (citation omitted).

Here, the defendants filed a motion to dismiss the amended complaint and an

accompanying memorandum in support of the motion to dismiss on June 4, 2010. In the

memorandum, the defendants argued that the claims should be dismissed on res judicata

grounds, and they attached Starship’s mandamus petition in the Superior Court and the Superior

Court’s order granting the writ. Because Starship did not refer to the Superior Court petition or

order in its complaint, the District Court’s consideration of those materials automatically

converted the motion to dismiss into a motion for summary judgment. Although we find nothing

in the record to indicate that the District Court gave Starship ten days’ notice of its intent to

consider matters outside the pleadings, we think Starship’s brief in opposition to the defendants’

motion to dismiss shows that Starship had notice that the District Court would consider the

Superior Court petition and order, and that Starship presented the arguments it would have

presented had it received formal notice of an intent to convert the motion into a summary

judgment motion. Starship first argued that the District Court could not dismiss its complaint on

res judicata grounds because the existence of the defense could not be judged on the face of the

complaint. It then proceeded to argue that res judicata should not be granted on the merits: “Out

of an abundance of caution, and without waiving the foregoing argument, Plaintiff will proceed

to describe the other reasons that preclude the grant of Defendants’ motion to dismiss.” Record,

vol. 2, no. 25, at 3–4. We thus find that Starship presented the arguments it would have

presented had it had notice, and we treat the District Court’s dismissal of Starship’s claims on res

judicata grounds as a motion for summary judgment under Rule 56. Moreover, we find that the

pleadings and the Coweta County Superior Court petition and order contained sufficient facts on

which to adjudicate the defense.

16

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(2012) (quoting Waldroup v. Greene Cnty Hosp. Auth., 265 Ga. 864, 865(1), 463

S.E.2d 5 (1995)); Ga. Code Ann. § 9-12-40 (West 2012). 14

“Three prerequisites must be met before res judicata will apply: (1) identity

of the cause of action; (2) identity of the parties or their privies; and (3) previous

adjudication on the merits by a court of competent jurisdiction.” Id. The third

prerequisite is present here—a previous adjudication on the merits by a court of

competent jurisdiction. Although Starship disagrees, the second prerequisite is

present as well—an identity of the parties. Starship’s suit in the Superior Court was

against Coweta County, Eva Wagner in her official capacity, and several members

of the Board of Commissioners of Coweta County. Starship’s suit in federal court

was against Coweta County and Eva Wagner in her official and individual

capacities. An identity of parties is not present, Starship argues, because Wagner

was not a party in the Superior Court litigation in her individual capacity.

Starship did not present this argument to the District Court; rather, it

presents the argument for the first time in its brief on appeal. Thus, we will not

consider Starship’s point, unless Starship can invoke one of the five exceptions to

14

Section 9-12-40 of the Official Code of Georgia Annotated provides:

A judgment of a court of competent jurisdiction shall be conclusive between the

same parties and their privies as to all matters put in issue or which under the

rules of law might have been put in issue in the cause wherein the judgment was

rendered until the judgment is reversed or set aside.

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the rule that “appellate courts generally will not consider an issue or theory that

was not raised in the district court,” FDIC v. Verez Assurance, Inc., 3 F.3d 391,

395 (11th Cir. 1993) (citation omitted). The five exceptions to the rule are: “the

refusal to consider the pure question of law would result in a miscarriage of justice;

the appellant had no opportunity to raise it below; there is at stake a ‘substantial

interest of justice;’ the proper resolution is beyond any doubt; or the issue presents

significant questions of great public concern.” Id. Starship argues that the

miscarriage-of-justice exception applies. We do not consider the argument

because Starship failed to present the argument in its opening brief. That it raised

it in its reply brief will not suffice. See United States v. Nealy, 232 F.3d 825, 830

(11th Cir. 2000) (declining to decide an issue raised for the first time in

supplemental briefing). We assume then, as the District Court did (because

Starship did not contest the point), that, notwithstanding the fact that Wagner was

not sued in her individual capacity in the mandamus proceeding, there is identity of

parties. Whether res judicata bars Starship’s claims therefore turns on whether an

identity as to causes of action is present as well.

When resolving that issue, Georgia courts look to see whether the claims

arise from the same subject matter. Fowler v. Vineyard, 261 Ga. 454, 458, 405

S.E.2d 678 (1991). “[O]ne must assert all claims for relief concerning the same

subject matter in one lawsuit and any claims for relief concerning that same subject

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matter which are not raised will be res judicata pursuant to OCGA § 9-12-40.” Id.

(quoting Lawson v. Watkins, 69 Ga. 147, 149, 401 S.E.2d 719 (1991) (emphasis in

original)).

As we set out in part II, supra, Starship claimed that rejection of its business

license application deprived it of the use of its property between the date it filed its

application for a business license and the date the writ of mandamus issued, in

violation of the substantive component of the Fourteenth Amendment’s Due

Process Clause (Count 1), and denied it equal protection of the law (Count 3).

Starship also claimed that the County violated the First Amendment by delaying

consideration of Starship’s application for a business license (Count 5) and

denying the application for the purpose of preventing Starship from exercising

speech (Count 7). Finally, Starship claimed that the Business License Ordinance is

an unconstitutional prior restraint on its face because it fails to provide a time limit

for the approval or rejection of a business license application (Count 4). These

claims arise from the same subject matter as Starship’s claim for mandamus relief

in the Superior Court. That claim stemmed from Wagner’s denial of Starship’s

application for a business license based on her determination that Starship could

not qualify under the Business License Ordinance and Sexually Oriented Business

Ordinance, and the Board of Commissioners’ affirmance of the denial. The claims

asserted in Counts 1, 3, 4, 5, and 7 arise from that same administrative ruling.

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In its mandamus petition, Starship alleged that the County’s ordinances

“provide no guidelines on how the Board of Commissioners shall treat a

recommendation from the Appeals Committee” and that the Board of

Commissioners “exercised unbridled discretion”; that the County’s “business

license procedures included numerous errors of law … as applied to Starship”; that

Starship met all requirements of the ordinances, including the 25 percent threshold;

that Wagner “committed error by ruling that Starships’ [sic] application must be

considered pursuant to amendments to the County’s ordinances enacted two

months after a building permit issued”; and that Wagner erred in denying its

application for a business license based on the “prospective possibility of unlawful

conduct.” Record, vol. 2, no. 21-2.

In the case at hand, Starship asserted the same factual basis in support of its

claims. Starship maintained that the ordinances vest the County with unfettered

discretion and impose no time limit for its approval or rejection of a license

application; that the County applied its ordinances to Starship in violation of the

First Amendment; that Starship notified the County that it would comply with the

new Sexually Oriented Business Ordinance; that it would not operate its store as an

adult bookstore; that the County “establish[ed] laws which were then retroactively

applied to Starship to prevent its business operation;” and that the County engaged

in a policy to deny the business license based on “the asserted ground that the

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applicant will—at a time in the future—engage in conduct in violation” of the laws

of the County. Record, vol. 1, no. 16, at 17–18. All of these claims arose from the

same facts that Starship asserted in its petition for a writ of mandamus: that

Starship met the requirements of the County ordinances and that the County erred

when it denied Starship’s application.

Starship could have presented these additional claims in its mandamus

petition, but it did not. In Georgia, res judicata applies not only to claims that were

actually litigated, but to claims that could have been litigated in a prior action.15

15

Starship contends that because Georgia law precluded a prayer for damages in a

petition for a writ of mandamus, the District Court’s application of the doctrine of res judicata

was inappropriate. Starship is wrong. True, the writ of mandamus is an “extraordinary remed[y]

available in limited circumstances to compel action or inaction on the part of a public officer

when there is no other adequate legal remedy.” Ford Motor Co. v. Lawrence, 279 Ga. 284, 285,

612 S.E.2d 301 (2005) (citation omitted). Here, mandamus relief was appropriate because no

other remedy, such as damages, could adequately compensate Starship for the wrongful denial of

a business license and its consequent inability to open its bookstore. The extraordinary nature of

mandamus does not necessarily bar incidental damages for past harm, however. Georgia courts

have allowed plaintiffs to recover damages for past harm as well as relief to prevent future harm,

such as an injunction or writ of mandamus. See, e.g., Georgia Dept. of Transp. v. Edwards, 267

Ga. 733, 738, 482 S.E.2d 260, 265 (Ga. 1997) (affirming injunction requiring the Department of

Transportation to remove a turn lane improperly constructed on plaintiff’s property as well as

damages to compensate the plaintiff for the temporary taking of his property, stating, “Recovery

of damages for the temporary taking as well as an injunction requiring return of the property did

not, as DOT suggests, constitute a double recovery”). Georgia courts will not allow double

recovery. See, e.g., Rabun Cnty. v. Mountain Creek Estates, L.L.C., 280 Ga. 855, 857–59, 632

S.E.2d 140 (2006) (reversing award of damages for inverse condemnation because plaintiff had

not suffered any diminished utility or functionality of property that would constitute a viable

claim; the county thus had sovereign immunity, and mandamus was therefore the proper (and

sole) remedy). In this case, damages to compensate Starship for the delay in opening its

bookstore combined with a writ of mandamus to compel issuance of the business license would

not constitute double recovery; it would merely provide relief for Starship’s past and future

harm.

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See OCGA § 9-12-40. Accordingly, the District Court did not err in granting the

County’s motion to dismiss Counts 1, 3, 4, 5, and 7.

IV.

For the foregoing reasons, the judgment of the District Court is

AFFIRMED

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