                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT             FILED
                      _____________________________U.S. COURT OF APPEALS
                                                    ELEVENTH CIRCUIT
                               No. 07-14590            DEC 22, 2008
                      _____________________________ THOMAS K. KAHN
                                                         CLERK
                     D. C. Docket No. 07-20570-CV-CMA


FRANZ A. WAKEFIELD,

                                                  Plaintiff-Appellant,

      versus

CORDIS CORPORATION, a Johnson & Johnson Co.,

                                                  Defendant-Appellee.

                      ______________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                    _______________________________

                              (December 22, 2008)

Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.

PER CURIAM:

      Franz A. Wakefield, proceeding pro se, appeals the dismissal of his

employment discrimination suit against his former employer, Cordis Corporation.
No reversible error has been shown; we affirm.

      The district court determined that Wakefield’s claims were barred by res

judicata and granted summary judgment in favor of Cordis. On appeal, Wakefield

argues that the district court erred in applying res judicata because he presented

new facts that were not litigated in his previous Title VII suit. We review a

district court’s grant of summary judgment de novo; and we view the evidence and

all reasonable factual inferences in the light most favorable to the nonmoving

party. Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir. 1999). We review de

novo a district court’s decision that a claim is barred by res judicata. Ragsdale v.

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

      Almost a year after his termination from Cordis, Wakefield filed a

discrimination complaint with the Florida Commission on Human Relations

(“FCHR”). The FCHR issued a notice of determination that it lacked jurisdiction

to consider Wakefield’s claim because he had executed a separation agreement

and release with Cordis, wherein he agreed to give up all claims against Cordis on

discrimination and retaliation in exchange for compensation. Wakefield’s later

administrative appeal was dismissed.

      Wakefield then filed a Title VII suit in federal district court. The district

court granted Cordis’s motion for summary judgment and dismissed Wakefield’s

                                          2
case without prejudice, determining that (1) he had failed to obtain the necessary

“right-to-sue” letter from the EEOC, and (2) even if the FCHR’s notice of

determination constituted a “right-to-sue” letter, Wakefield’s suit still was

untimely because he filed it more than 90 days after the issuance of the notice.

The district court also determined, on reconsideration, that Wakefield was

unentitled to equitable tolling of the 90-day period.

       A later action is barred by res judicata if, among other things (1) there is a

prior final judgment on the merits, and (2) the same cause of action is involved in

both cases. Ragsdale, 193 F.3d at 1238.1 After review, we conclude that the

district court committed no reversible error in determining that Wakefield’s suit

was barred by res judicata.2

       First, the district court’s prior ruling was on the merits. While a dismissal

without prejudice does not constitute “an adjudication on the merits and thus does


       1
         The other two parts of res judicata -- that the prior decision be rendered by a court of
competent jurisdiction and that the parties were identical in both suits -- clearly were met and are
not in dispute. See id.
       2
         We note that the district court did err to the extent it gave preclusive effect to the state
administrative proceeding. See Bishop v. Birmingham Police Dep’t, 361 F.3d 607, 610 (11th
Cir. 2004) (unreviewed state administrative proceedings are not entitled to preclusive effect in
Title VII proceedings). To the extent the district court’s res judicata decision rested on federal
law, the court erred in applying state res judicata principles. See EEOC v. Pemco Aeroplex, Inc.,
383 F.3d 1280, 1285 (11th Cir. 2004) (a court applies federal res judicata principles to prior
federal decisions). But as we explain, the court’s ultimate res judicata decision was correct under
federal law.

                                                 3
not have a res judicata effect,” Hughes v. Lott, 350 F.3d 1157, 1161 (11th Cir.

2003), a ruling based on statute of limitations is a decision on the merits for res

judicata purposes, Mathis v. Laird, 457 F.2d 926, 927 (5th Cir. 1972).

      In Wakefield’s prior Title VII suit, the district court granted Cordis’s

summary judgment motion because Wakefield’s complaint did not comply with

procedural requirements and was untimely: he did not obtain a “right-to-sue”

letter, and he filed suit more than 90 days after issuance of the notice of

determination. See 42 U.S.C. § 2000e-16(c) (an employee must file a Title VII

complaint within 90 days of exhausting his administrative remedies and after

receipt of a “right-to-sue” letter from the EEOC). Thus, the district court’s

decision was based on the statute of limitations for filing a Title VII suit and was,

in effect, with prejudice despite the label of “without prejudice.” See Davila v.

Delta Air Lines, Inc., 326 F.3d 1183, 1188-89 (11th Cir. 2003) (looking past the

jurisdictional label employed by the district court to dismiss Davila’s prior suit,

and concluding that, as a substantive matter, the decision was on the merits for res

judicata purposes); Burden v. Yates, 644 F.2d 503, 505 (5th Cir. Unit B 1981) (a

dismissal without prejudice after the applicable statute of limitations has run has

the effect of precluding a party from pursuing his case in a later action).

      We also conclude that the two Title VII lawsuits involved the same cause of

                                          4
action. To determine whether the same cause of action is involved, a court must

decide “whether the actions arise out of the same nucleus of operative fact, or are

based upon the same factual predicate.” Davila, 326 F.3d at 1287 (internal

quotation omitted). Here, the two complaints are nearly identical and stem from

the same factual predicate. In both complaints, Wakefield alleged that Cordis

discriminated against him because of his race and created a hostile work

environment during his employment there. He also alleged civil theft, claiming

that Cordis misappropriated patents from him that issued in 2004.

      He attempts to premise the instant complaint on another patent allegedly

misappropriated by Cordis that issued in 2006 and a right-to-sue letter issued to

him by the EEOC in December 2006 based on this misappropriation. He describes

the 2006 patent misappropriation as a “continuing act of retaliation” by Cordis.

But even if the 2006 patent constitutes an additional wrong by Cordis, this

allegation still stems from the same nucleus of operative fact already alleged; and

the district court already determined that these facts were alleged in an untimely

manner. See Carter v. West Publ’g Co., 225 F.3d 1258, 1264 (11th Cir. 2000)

(continuing violation doctrine does not exist to give a second chance to employee




                                         5
who allowed a legitimate Title VII claim to lapse).3

       Wakefield also argues that the district court erred in denying his motion for

a continuance so that he could conduct additional discovery before responding to

Cordis’s summary judgment motion. We review for an abuse of discretion a

district court’s order denying a Fed.R.Civ.P. 56(f) motion for discovery. Harbert

Int’l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998). We discern no abuse

here. Wakefield sought a continuance so he could obtain depositions and expert

testimony about patents Cordis allegedly stole from him. This discovery was not

relevant to the claim raised by Cordis in its summary judgment motion: that

Wakefield’s claims were barred by res judicata.

       We also reject Wakefield’s argument that the district court abused its

discretion in awarding costs to Cordis on Wakefield’s civil theft claim.4 See


       3
         The law-of-the-case doctrine also precludes us from considering Wakefield’s present
claims. In Wakefield’s previous appeal to this Court, we affirmed the district court’s denial of
the motion for reconsideration, determining that he was unentitled to equitable tolling. See
Wakefield v. Cordis Corp., No. 06-13043 (11th Cir. Nov. 20, 2006) (unpub.). Thus, because he
is raising the same Title VII claims that we already have determined were untimely, the law of
the case doctrine precludes us from considering them now. See United States v. Jordan, 429 F.3d
1032, 1035 (11th Cir. 2005) (the law-of-the-case doctrine bars relitigation of issues that were
decided, either explicitly or by necessary implication, in an earlier appeal of the same case). And
we conclude that none of the exceptions to the doctrine apply here. See Jackson v. State of
Alabama State Tenure Comm’n, 405 F.3d 1276, 1283 (11th Cir. 2005).
       4
         Though Wakefield raises this issue for the first time in a reply brief, we address it
because it was in response to Cordis’s raising of the issue in its initial brief. See United States v.
Dacus, 408 F.3d 686, 687 (11th Cir. 2005) (allowing an appellant to argue an issue raised for the
first time in the appellee’s brief when the appellant later argued the issue in his reply brief

                                                  6
Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007), cert. denied, 128 S.Ct.

865 (2008). Because Wakefield admitted that he executed secrecy agreements

with Cordis, which gave Cordis the rights to any inventions or other intellectual

property in consideration of his employment, his civil theft claim was without

substantial factual or legal support. See Fla. Stat. § 772.11 (defendant is entitled

to recover reasonable attorney’s fees and court costs in the trial and appellate

courts upon a finding that the claimant raised a claim that was without substantial

fact or legal support).

       AFFIRMED.




“because both parties [had] joined the issue without objection”).

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