           Case: 12-12821   Date Filed: 01/10/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-12821
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:12-cv-00116-TWT



FELICIA TUITAMA,

                                                            Plaintiff-Appellant,

                                  versus

BANK OF AMERICA, NA,
RECONTRUST,
LEHMAN XS TRUST 2005-5N,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (January 10, 2014)

Before MARCUS, ANDERSON, and BLACK, Circuit Judges.

PER CURIAM:
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       Felicia Tuitama appeals the dismissal of her complaint in her diversity action

against Bank of America, N.A. and others involved in the foreclosure of her

property in California. The district court dismissed Tuitama’s complaint under the

doctrine of res judicata based on a previously-dismissed action before the United

States District Court for the Central District of California. Tuitama concedes that

the instant case and the California case involve the same parties and causes of

action but contests whether the California court was a court of competent

jurisdiction and whether it rendered a final judgment on the merits. Upon review, 1

we conclude that the California court did have jurisdiction over Tuitama’s claims

and that its dismissal 2 constituted a final judgment on the merits for the purposes of

res judicata. We therefore affirm.

       Res judicata bars a subsequent suit when (1) a court of competent

jurisdiction (2) has rendered a final judgment on the merits (3) in a prior action

between identical parties (or their privies) (4) involving the same causes of action.

Ragsdale v. Rubbermaid, Inc., 193 F.3d at 1235, 1238 (11th Cir. 1999). Tuitama

challenges the first and second elements.


       1
       We review de novo a district court’s conclusions on res judicata. Ragsdale v.
Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).
       2
          The California court titled its dismissal order “Dismissal by the Court for Failure to
Prosecute,” but the text of the order describes Tuitama’s failure to respond to the court’s order to
show cause, despite making other filings. The order can therefore be read either as a dismissal
for failure to prosecute or a dismissal for failure to comply with the court’s orders. We note this
ambiguity but find it inconsequential to the disposition of this appeal.
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      As to the first element, Tuitama argues the California court lacked subject

matter jurisdiction over her claims because the action “rightly belonged in

Georgia’s Northern District.” Tuitama fails to explain why this is true, however,

and her argument fails as a matter of logic because whether federal subject matter

jurisdiction exists does not depend on the location of a particular district court.

Diversity jurisdiction establishes the power of any federal court to hear a claim, so

if the District Court for the Northern District of Georgia possesses subject matter

jurisdiction over Tuitama’s claims, so too did the District Court for the Central

District of California. Federal subject matter jurisdiction does, in fact, exist

because the parties are completely diverse—regardless of whether Tuitama is a

citizen of Georgia or California—and the amount in controversy exceeds $ 75,000.

28 U.S.C. § 1332; see also Fritz v. Am. Home Shield Corp., 751 F.2d 1152, 1153

(11th Cir. 1985). At most, Tuitama’s arguments may concern venue, but a defect

in venue has no bearing on res judicata. See Wachovia Bank, N.A. v. Schmidt, 546

U.S. 303, 316 (2006) (“Venue is largely a matter of litigational convenience [and]

is waived if not timely raised.”).

      As to the second element, Tuitama argues the California court’s dismissal

for failure to prosecute was not a decision on the merits in light of California state

law. However, contrary to Tuitama’s assertion, federal law controls. CSX

Transp., Inc. v. Bhd. of Maintenance of Way Employees, 327 F.3d 1309, 1316


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(11th Cir. 2003). Although the federal common law that governs the claim-

preclusive effect of a dismissal by a federal court sitting in diversity may in some

instances incorporate state law, it does not do so in the instant case because no

state substantive rights were at issue in the California court’s ruling. See Semtek

Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508-09 (2001). Rather, the

California court dismissed Tuitama’s claim for failure to prosecute and failure to

comply with the court’s orders, reasons that concern the court’s “interest in the

integrity of [its] own processes.” Id. at 509; see also Vasquez v.

Bridgestone/Firestone, Inc., 325 F.3d 665, 678-79 (5th Cir. 2003) (“The district

court, although exercising diversity jurisdiction, dismissed on federal procedural

grounds, thus distinguishing Semtek.”).

      We therefore need not consult California law and can instead rely

exclusively on federal law, which clearly dictates that dismissal for failure to

prosecute or for noncompliance with a court order is a judgment on the merits with

claim-preclusive effect. Bank of America points to Federal Rule of Civil

Procedure 41(b), which states that dismissal for failure to prosecute or to comply

with a court order “operates as an adjudication on the merits.” However, this rule

is not always dispositive of the “adjudication on the merits” element of res

judicata. Semtek, 531 U.S. at 503 (“In short, it is no longer true that a judgment

‘on the merits’ is necessarily a judgment entitled to claim preclusive effect; and


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there are a number of reasons for believing that the phrase ‘adjudication on the

merits’ does not bear that meaning in Rule 41(b).”). Nevertheless, numerous

decisions support the conclusion that a dismissals like the one at issue are

preclusive. See, e.g., Bierman v. Tampa Elec. Co., 604 F.2d 929, 930-31 (5th Cir.

1979); 3 Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776-77 (6th Cir. 2009); Kimmel

v. Tex. Commerce Bank, 817 F.2d 39, 40-41 (7th Cir. 1987); see also 18A Charles

A. Wright & Arthur R. Miller, Federal Practice and Procedure § 4435 (2d ed.

2002) (“[D]ismissals for failure of the plaintiff to prosecute or to comply

with . . . any order of the court . . . operate as an adjudication on the merits unless

the court specifies otherwise . . . . Ordinarily no difficulty is encountered in this

area.”). Moreover, the traditional interests underlying res judicata justify giving

the California court’s order preclusive effect even without reliance on the text of

Rule 41(b). See Nasser v. Isthmian Lines, 331 F.2d 124, 128 (2d Cir. 1964)

(“[E]ven if this result were not required by the terms of Rule 41(b), it would seem

necessary as a matter of sound judicial administration.” (footnote omitted)); Wright

& Miller, supra, § 4440 (noting that the purpose of establishing “a strong sanction

to enforce compliance with proper procedure[—][q]uite apart from Rule 41(b)[—

]would suggest that penalty dismissals often should preclude a second action on


       3
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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the same claim.”). For these reasons, we conclude that the California court’s

dismissal operated as an adjudication on the merits entitled to preclusive effect. 4

       Accordingly, all four elements of res judicata have been established, and the

district court did not err in dismissing Tuitama’s claims.

       AFFIRMED.




       4
          Tuitama suggests she intended to respond to the California court’s order to show cause
with a motion to transfer venue to Georgia but failed to do so through an innocent mistake. This
suggestion is inconsequential because, under those circumstances, Tuitama should have sought
relief on the basis of excusable neglect before the California court. See Fed. Election Comm’n v.
Al Salvi for Senate Comm., 205 F.3d 1015, 1020 (7th Cir. 2000). In any event, the record
discloses no reason the California court would have granted a motion for change of venue to the
Northern District of Georgia, nor any reason jurisdiction would have been valid there but not in
California.
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