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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10191
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:14-cv-01501-MMH-MCR



ROSANA BOULHOSA NASSAR,

                                                            Plaintiff-Appellant,

                                   versus

EDUARDO BOULHOSA NASSAR,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (September 18, 2017)

Before TJOFLAT, WILLIAM PRYOR and FAY, Circuit Judges.


PER CURIAM:
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      Rosana Boulhosa Nassar, pro se, appeals the dismissal of her amended

complaint and the denial of her motion for leave to file a second amended

complaint. We affirm.

                               I. BACKGROUND

A. Underlying Facts

      According to Nassar’s amended complaint, Eduardo Boulhosa Nassar

(“Eduardo”), a Brazilian citizen and Nassar’s older brother, sexually assaulted her

when she was a child. When Nassar was an adolescent, Eduardo also violated her

privacy by entering her gynecologist’s examination room without permission while

she was being examined. In 1998, “to recover from her childhood trauma,” Nassar

wrote and published a book in Portuguese titled (as translated) “The Freeing Power

of Speech,” in which she detailed “the abuse [Eduardo] committed against her.” R.

at 1988-89.

      Since the publication of Nassar’s book, Eduardo has published false

statements online regarding what she had written about him. Eduardo also accused

her of having serious psychological problems, a personality disorder, and paranoia

on those websites, which she alleged could still be viewed through internet

archives. Eduardo purchased the domain names “www.rosananassar.com” and

“www.newglobalpublishing.net” (a reference to Nassar’s publishing business, New

Global Publishing); he also published false statements on these websites.


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       Since 2005, Eduardo has hired 35 private investigators and security officers

“to stalk, investigate, place . . . under surveillance, guard, protect, recover and

follow” Nassar. R. at 1990. Nassar also received an anonymous text message that

read, “I am gonna kill u! Don’t give anybody my cell number,” which she

perceived to be a threat and, based on the area code, has concluded was sent by

Eduardo. R. at 2004. Nassar’s publishing business has suffered as a result of

Eduardo’s actions because Nassar had to spend “most of her time investigating the

investigators and security officers who [Eduardo] has been hiring.” R. at 1990.

B. Prior State-Court Proceedings

        In 2012, Eduardo filed a complaint in Florida state court against Nassar,

alleging claims of defamation and intentional infliction of severe emotional

distress.1 Eduardo claimed that Nassar published false allegations on the internet

that he had sexually abused and tortured her by placing her under surveillance.

Nassar filed a counterclaim against Eduardo; Eduardo moved to dismiss the

counterclaim based, in part, on lack of personal jurisdiction over him. Nassar filed

an amended counterclaim; Eduardo again moved to dismiss. The state court

granted Eduardo’s motion to dismiss and granted Nassar leave to amend.

       Nassar filed a third amended counterclaim. She alleged intellectual property

damage based on Eduardo’s purchase of the domain names associated with her and

1
 The district court took judicial notice of this background information from the state court. R. at
3013 n.2.
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her business, defamation based on Eduardo’s online comments, stalking based on

Eduardo’s alleged hiring of private investigators and security officers, and

intentional infliction of severe emotional distress based on stalking. Eduardo

moved to dismiss the counterclaims with prejudice and noted that the claims did

not arise out of the same facts as his claims, so they might constitute compulsory

counterclaims and thus lack jurisdiction. Eduardo mainly argued that Nassar had

failed to allege a short and plain statement of the ultimate facts, Nassar’s

defamation claim was time-barred, Nassar failed to state a claim for defamation,

and Florida law does not recognize a claim for intellectual property damage. The

state court granted the motion to dismiss with prejudice for the reasons contained

in Eduardo’s motion. Eduardo later dismissed his suit without prejudice.

C. Nassar’s Federal Case

      In March 2016, Nassar filed an amended complaint against Eduardo in the

Middle District of Florida, alleging claims of cyberpiracy and cybersquatting in

connection with internet domain names, in violation of 15 U.S.C. § 1125(d),

defamation, and intentional infliction of severe emotional distress. Eduardo filed a

motion to dismiss, arguing the amended complaint was barred by res judicata

because Nassar previously had filed a counterclaim in state court that was

dismissed with prejudice that had raised nearly identical allegations and requests

for relief based on the same factual predicate. He also argued the statute of


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limitations barred her defamation claim and the complaint failed to allege the

elements of a claim for intentional infliction of severe emotional distress.

      Nassar subsequently filed a motion for leave to file a second amended

complaint. She argued that the second amended complaint would resolve any

doubt as to the legal sufficiency of her allegations, contain more allegations of the

incidents of stalking, eliminate the defamation claim, and add a claim of

cyberpiracy and invasion of privacy. She also sought leave to amend to include

new evidence that was discovered after Eduardo’s former attorney disclosed that

he had conducted surveillance on Nassar on behalf of Eduardo. The magistrate

judge denied her motion for leave to file a second amended complaint without

prejudice. The magistrate judge determined that while Nassar had demonstrated

good cause for filing the motion two months after the deadline to amend pleadings,

Nassar could not be allowed to file her proposed second amended complaint

because it did not comply with Federal Rules of Civil Procedure 8 and 10. Nassar

then filed a renewed motion for leave to file a second amended complaint.

      After taking judicial notice of the state-court proceedings, the district court

determined that Nassar’s suit was barred by res judicata. The court concluded the

identity of the thing sued for was the same in the state-court action and the current

action, the identity of the parties was the same, and the parties were suing and

being sued in the same capacity. Additionally, the court determined that the state


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court’s dismissal was a final judgment on the merits and, because Eduardo

voluntarily dismissed his case, Nassar’s counterclaims were final and appealable.

The court concluded that the state court was a court of competent jurisdiction

because Eduardo impliedly consented to personal jurisdiction and that Nassar’s

claims were sufficient to support that the actions arose from Eduardo’s alleged

commission of tortious acts in Florida, satisfying Florida’s long-arm statute.

      The district court also denied Nassar’s motion to amend her complaint. The

court determined that any allegations of stalking that predated 2014 necessarily

would have been encompassed in Nassar’s counterclaim and amending would be

futile. To the extent that Nassar included incidents that postdated the filing of her

third amended state-court counterclaim, the court determined that her claims would

not be barred by res judicata; but the court declined to permit Nassar to supplement

her pleadings because it would not promote the efficient administration of justice

under the totality of the circumstances. The court noted that none of the newly

alleged incidents occurred after she filed her amended complaint; Nassar had

unreasonably delayed in requesting leave to supplement her pleading with those

allegations and allowing her to do so would unduly delay the proceedings.

      On appeal, Nassar argues that the district court erred by dismissing her

complaint based on res judicata because the Florida state court dismissed her

complaint for lack of personal jurisdiction rather than on the merits and that the


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district court erred by failing to consider the merits of her claims. Nassar also

argues that the district court erred by denying her leave to file a second amended

complaint because her claims were based on newly discovered evidence.

                                  II. DISCUSSION

A. Motion to Dismiss

      We review de novo the district court’s grant of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, “accepting the

allegations in the complaint as true and construing them in the light most favorable

to the plaintiff.” Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d 1301,

1305 (11th Cir. 2009). We also review de novo the district court’s application of

res judicata. Griswold v. County of Hillsborough, 598 F.3d 1289, 1292 (11th Cir.

2010). Although we read briefs filed by pro se litigants liberally, issues not briefed

on appeal by a pro se litigant are deemed abandoned. Timson v. Sampson, 518

F.3d 870, 874 (11th Cir. 2008).

      When we are asked to give res judicata effect to a state-court judgment, we

must apply the res judicata principles of the state whose decision is set up as a bar

to further litigation. Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th

Cir. 2006). Under Florida law, res judicata applies where there is (1) identity of

the thing sued for, (2) identity of the cause of action, (3) identity of the persons and

parties to the action, (4) identity of the quality or capacity of the person for or


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against whom the claim is made, and (5) the original claim was disposed on the

merits. Lozman v. City of Riviera Beach, 713 F.3d 1066, 1074 (11th Cir. 2013). A

judgment on the merits prohibits not only relitigation of claims previously raised

but also the litigation of claims that could have been raised. State v. McBride, 848

So. 2d 287, 290 (Fla. 2003). Florida’s claim-preclusion law defines identity of

causes of action as causes sharing similar facts essential to the maintenance of both

actions—that is, the claims must be substantially the same. See Amey, Inc. v. Gulf

Abstract & Title, Inc., 758 F.2d 1486, 1510 (11th Cir. 1985).

      First, Nassar does not challenge on appeal the district court’s determination

that the identity of the thing sued for, the identity of the persons and parties to the

action, the identity of the causes of action, and the identity of the quality or

capacity of the person for or against whom the claim was made are the same in her

federal action as they were in state court. Nassar therefore has abandoned any

argument as to those issues on appeal. See Timson, 518 F.3d at 874.

      According to the state-court order granting Eduardo’s motion to dismiss

Nassar’s third amended counterclaim, the court granted the motion for the reasons

included in the motion to dismiss. Although Eduardo made passing reference to

the fact that Nassar’s counterclaims might constitute compulsory counterclaims

that did not result in personal jurisdiction, this reference was one sentence in a

seven-page motion to dismiss. Because the majority of his motion focused on the


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dismissal of Nassar’s counterclaims based on her failure to state a claim and the

claims being time barred, it is clear that the state court, by adopting Eduardo’s

reasoning, was dismissing her counterclaims with prejudice. This is further

supported by the fact that, in its judgment dismissing the counterclaims, the state

court specified that Nassar would not be permitted to further amend.

      Moreover, under Florida law, an involuntary dismissal operates as an

adjudication on the merits, unless the order otherwise specifies or the dismissal

was for lack of jurisdiction, improper venue, or for lack of an indispensable party.

Fla. R. Civ. P. 1.420(b). This provision applies to dismissal of any counterclaim.

Fla. R. Civ. P. 1.420(c). Here, because the state court did not explicitly dismiss

Nassar’s counterclaims for lack of jurisdiction and the order did not otherwise

specify that it was dismissing without prejudice, the state court’s involuntary

dismissal of her claims operated as an adjudication on the merits. See Fla. R. Civ.

P. 1.420(b), (c). Accordingly, the district court properly concluded that the state-

court order disposed of Nassar’s claims on the merits.

      Finally, Nassar’s argument that the district court erred by only considering

the merits of one of her claims is unavailing. The court was not required to

determine the merits of her claims because it determined that they were barred by

res judicata. While the court considered the merits of Nassar’s claim that Eduardo

sent her a threatening text message to the extent it could be construed as a new


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claim not barred by res judicata, it found Nassar misread the telephone number and

the message came from the United States and not Brazil. Furthermore, even

assuming that the text message was sent from Eduardo, the claim is still barred by

res judicata. Although Nassar did not include this specific allegation in her state-

court counterclaim, this allegation was provided in her current complaint to

support the stalking allegations as part of her claim for intentional infliction of

emotional distress. Therefore, this claim is part of the same factual basis as her

state-court claim for intentional infliction of severe emotional distress and is barred

by res judicata. See Amey, 758 F.2d at 1510.

B. Leave to Amend

      While we review the denial of leave to amend the complaint for abuse of

discretion, a legal determination that amendment to the complaint would be futile

is reviewed de novo. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).

Even after the time has expired for amending a complaint as of right under Federal

Rule of Civil Procedure 15(a)(1), a court should give leave to amend freely “when

justice so requires.” Fed. R. Civ. P. 15(a)(2). Generally, a party must be given at

least one opportunity to amend before the district court dismisses the complaint.

Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). Pro se pleadings

are held to an even less stringent standard than pleadings drafted by attorneys.

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, a


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district court need not allow an opportunity to amend if any amendment would be

futile. See Cockrell, 510 F.3d at 1310 (“Leave to amend a complaint is futile when

the complaint as amended would still be properly dismissed . . . .”).

      Although Nassar raised new claims for invasion of privacy and cyberpiracy,

the factual basis for the allegations that occurred prior to the third amended

counterclaim arose from the same factual basis and could have been raised in the

state-court action. See McBride, 848 So. 2d at 290 (recognizing that res judicata

“prohibits not only relitigation of claims raised but also the litigation of claims that

could have been raised in the prior action”). Additionally, the proposed

amendment to her complaint based on the allegedly “new” evidence would be

futile because the evidence was not actually new. The alleged discovery of new

evidence regarding the domain names does not change the outcome that her claims

are barred by res judicata because they previously were raised in state court. As to

the allegedly new evidence about Eduardo’s stalking from disclosures made by his

former attorney, her allegations fail to demonstrate that these alleged incidents

occurred after she filed her state-court counterclaims and were not part of the same

factual basis. Accordingly, the district court did not err in determining that

amending her complaint on these grounds would be futile.

      Further, Nassar did not show that the interests of justice required leave to

amend her complaint when the district court already had allowed her to amend her


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complaint once and she could have raised these allegations in her first amended

complaint. See Fed. R. Civ. P. 15(a)(2). The district court therefore did not abuse

its discretion in denying Nassar leave to amend her complaint to include

allegations that were not barred by res judicata.

      AFFIRMED.




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