                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            MAY 31, 2005
                             No. 04-13750                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 04-80218-CV-JCP

PEPI SCHAFLER, Dr.,

                                                       Plaintiff-Appellant,

                                  versus

INDIAN SPRING MAINTENANCE ASSOCIATION AND EACH
INDIVIDUAL MEMBER OF THE BOARD, et. al.,

                                                       Defendants-Appellees.

                       ________________________

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


                             (May 31, 2005)


Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:
      Pepi Schafler appeals pro se the district court’s dismissal of her civil

diversity complaint, which was brought pursuant to 28 U.S.C. § 1332, as barred by

the doctrine of res judicata. Although the district court erred by not applying the

federal law of res judicata, the error was harmless in light of the fact that

Schafler’s claim met all of the federal requirements of res judicata. Accordingly,

we AFFIRM.

                                 I. BACKGROUND

      Schafler, a California citizen, filed the instant complaint against the

following Florida citizens: (1) Indian Springs Maintenance Association (“ISMA”),

and unknown members of its board; (2) unknown participants in the “trash and

defame sessions;” (3) Fairway Park Condominium Association (“FPCA”), and

unknown members of its board; and (4) the law firm of Nason, Yeager, Gerson,

White, and Licoce, P.A. (“Firm”). R1-1 at 1-2. Schafler alleged that she owned,

and annually placed on the rental market, a condominium in Boynton Beach,

Florida, that was part of the Fairway Park development, which ISMA managed.

Schafler alleged that ISMA (1) wrongfully spent association fees that it received

from its members, (2) failed to provide its members with annual financial

statements, as required by law, and (3) harassed Schafler when she attempted to

obtain these records. She further contended that ISMA harassed her by blocking



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access to her apartment with construction. Next, she alleged that, for the past

several years, ISMA’s periodic association meetings had been a “‘trashing orgy, . .

. during which [she] was discussed and ridiculed, insulted, trashed, intending to

defame, slander, and present [her] in a false light.” Id. at 4-5. Schafler also alleged

that ISMA: (1) embezzled and wrongly converted her association fees; (2) falsely

claimed that she had not paid her fees and then “gave themselves permission to

trespass to and occupy [her] real property;” and (3) kept track of her presence on

the property. Id. at 5-7. Schafler further alleged that FPCA (1) violated Florida

law by failing to provide her with financial statements, (2) converted or embezzled

her funds, (3) falsely alleged that she had failed to pay her association fees, and (4)

trespassed on her property. She next contended that the Firm was a “paid

enabler[],” and aided and abetted FPCA and ISMA in their wrongdoings. Id. at 8-

9. Finally, she claimed that all three defendants (1) were involved in a civil

conspiracy, (2) made false allegations against her, and (3) intentionally caused her

to suffer emotional distress. Schafler sought, inter alia, damages exceeding

$5,000,000.

      FPCA filed a motion to dismiss, in which it argued, inter alia, that, because

Schafler had filed actions arising from the same factual situations on a yearly basis

against the same defendants, her complaint was barred by the doctrine of res



                                           3
judicata. According to FPCA (1) Schafler had filed at least two prior lawsuits

seeking the same or similar relief against the same defendants, (2) the lawsuits

arose out of the same set of facts, and res judicata also precludes consideration of

issues that could have been raised, but were not, in the previous lawsuits, and (3)

the parties were identical. The Firm and ISMA filed substantially similar motions.

      The defendants attached copies of Schafler’s previous lawsuits to their

motions to dismiss. These materials show that Schafler previously filed a lawsuit

in state court against ISMA, which was dismissed without prejudice for lack of

prosecution on 26 February 2003. See R1-8 at exhibit A. They also show that

Schafler filed a diversity lawsuit, pro se, on 12 February 2002, in the Southern

District of Florida against FPCA, ISMA, the associations’ individual board

members, the Firm, and its counsel. This lawsuit concerned Schafler’s ownership

of a condominium, in the Fairway Park complex, and her central allegation was

that the defendants interfered with her business relationship with her tenants.

There, the district court granted the defendants’ motion to dismiss, finding that (1)

Schafler’s complaint failed to state a claim of tortious interference with a business

relationship, civil conspiracy, trespass to chattel, extortion, defamation, or legal

malpractice, and (2) no facts would support a jury award of punitive damages




                                           4
sufficient to meet the threshold for diversity jurisdiction. We affirmed. Id. at

exhibit C.

       In the instant case, Schafler filed two amended complaints that did not

substantially differ from her original complaint. R1-11, 16. She also filed a reply

to the defendants’ motions to dismiss, arguing, inter alia, that the defendants’

contention that her claims were barred by the doctrine of res judicata was

erroneous, since the Supreme Court, in Commissioner v. Sunnen, 333 U.S. 591,

598-99, 68 S.Ct. 715, 719-20, 92 L.Ed. 898 (1948), held that collateral estoppel

has no bearing on a situation where the legal matters determined in a previous case

differ even slightly from those raised in the second case. She also argued that,

under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938),

the defendants’ reliance on state and local law was erroneous.

       The district court dismissed Schafler’s amended complaint with prejudice

pursuant to the doctrine of res judicata. R1-23 at 3-4.1 Taking judicial notice of

the orders issued in Schafler’s previous lawsuits, the court found that all four of

Florida’s requirements of res judicata were met because Schafler had filed two or

more prior lawsuits, arising out of the same set of facts, with some complaints



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         The court noted that, although it was dismissing Schafler’s complaint on the basis of res
judicata, upon a cursory review of the merits, it felt that failure to state a claim would probably “be
an alternative method to dismissal.” R1-23 at 4 n.5.

                                                  5
repeated verbatim, that sought the same or similar relief against the same

defendants. Id. at 3-4. The court warned Schafler that her behavior bordered on

being “vexatious” and cautioned her against reasserting her claims against these

defendants. Schafler filed a motion for reconsideration, alleging that the district

court’s decision was based on “falsehoods and deceit,” and bias, which the district

court denied. R1-24, 26.

                                 II. DISCUSSION

      On appeal, Schafler concedes that she brought a “similar” claim in February

2002 against these defendants, but argues that the district court erred by not

applying the doctrine of “repeated offense and offender.” Appellant Brief at 2, 24-

25. She argues that, since the defendants prevented her from renting her property

during December 2001, which provided the basis for her 2002 lawsuit, they have

continued to prevent her from renting her property, and such subsequent harms are

not barred from adjudication by res judicata. Additionally, she argues that her

prior lawsuit was not a final judgment on the merits, since it was dismissed for lack

of subject-matter jurisdiction, and therefore one of the requirements for res

judicata remains unmet. She also contends that the district court, under Erie,

should not have applied Florida law. She further argues that the district court’s




                                           6
decision violated due process and equal protection by denying her the right to an

unbiased court. Schafler also argues the merits of her claims.

      As a preliminary matter, “[w]hen a prior action is brought in diversity in

federal court, the federal law of res judicata governs in a second suit brought in

diversity.” Commercial Box & Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 373

(5th Cir. 1980). Therefore, to the extent that the district court applied Florida law

to determine whether Schafler’s prior federal litigation barred the instant claim, it

erred. Nonetheless, the error appears harmless because Schafler’s complaint would

also be barred by res judicata under federal law.

      Res judicata is a legal determination that we review de novo. Jang v. United

Technologies Corp., 206 F.3d 1147, 1149 (11th Cir. 2000). “Res judicata bars the

filing of claims which were raised or could have been raised in an earlier

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

An action is barred by prior litigation if all of “the following elements are present:

(1) there is a final judgment on the merits; (2) the decision was rendered by a court

of competent jurisdiction; (3) the parties, or those in privity with them, are

identical in both suits; and (4) the same cause of action is involved in both cases.”

Id. It is well-settled that a dismissal for lack of subject matter jurisdiction “is not

an adjudication on the merits that would give rise to a viable res judicata defense.”



                                            7
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1188 (11th Cir. 2003), cert. denied,

540 U.S. 1016 (2003). We have observed:

      [that w]e do not believe that the res judicata preclusion of claims that
      ‘could have been brought’ in earlier litigation includes claims which
      arise after the original pleading is filed in the earlier litigation.
      Instead, [this Court] believe[s] that, for res judicata purposes, claims
      that ‘could have been brought’ are claims in existence at the time the
      original complaint is filed or claims actually asserted . . . in the earlier
      action . . . The underlying core of facts must be the same in both
      proceedings.

In re Piper Aircraft Corp., 244 F.3d 1289, 1298-1301 (11th Cir. 2001) (internal

quotations and citations omitted).

      Because all of the federal requirements for res judicata are met, the district

court correctly found that Schafler’s February 2002 lawsuit barred the instant

complaint. First, the district court’s 2002 order was effectively a final judgment on

the merits. In that case, the district court fully analyzed the merits of Schafler’s

case and found that it failed to state a claim for relief. See R1-8 at exh. B. The

court then noted that, because Schafler failed to allege any facts that would entitle

her to relief, no reasonable jury could determine that she was entitled to damages

that would meet the jurisdictional amount, and dismissed the claim as also lacking

subject-matter jurisdiction. In Davila, where the district court reached the merits

of the case and then found that subject-matter jurisdiction was lacking, we held that

the decision was on the merits, noting that “if the district court truly had dismissed

                                            8
the case for lack of subject matter jurisdiction it could not legitimately have

reached the merits of [the plaintiff’s] contentions.” Davila, 326 F.3d at 1188-89.

Likewise, here, the district court’s determination that Schafler’s claims lacked

merit was the basis for its discussion of subject-matter jurisdiction. Therefore,

Schafler’s February 2002 lawsuit was a final judgment on the merits.

      Next, the U.S. District Court for the Southern District of Florida was a court

of competent jurisdiction over this case, pursuant to 28 U.S.C. § 1332, assuming

that the jurisdictional amount was met. Additionally, it is clear that the parties in

the suits were identical, so the third requirement is met.

      The final requirement for res judicata was also met in this case. Although

the specific claims in each case differed somewhat, both suits involved tort claims

for damages against these three defendants regarding Schafler’s ownership of a

particular condominium. See R1-1, 8 at Exh. B, C. A careful reading of

Schafler’s complaint shows that all of her instant claims could have been raised in

her February 2002 lawsuit. See Davila, 326 F.3d at 1187. The instant suit

involved two main complaints: (1) mismanagement of association fees; and (2)

harassment and mistreatment of Schafler. See R1-1. There is no evidence in the

record to suggest that these claims were not in existence at the time of her original

action. See In re Piper Aircraft Corp., 244 F.3d at 1299. Regarding the



                                           9
defendants’ management of association fees, Schafler’s complaint contained no

dates and referred to “annual audited financial statement[s]” that were not

delivered, suggesting that she allegedly had not been receiving her statements for

some time. See R1-1 at 3-4. Regarding the harassment claims, her complaint

referred to “trashing” that had occurred for several years during ISMA’s periodic

association meetings, and otherwise failed to orient temporally any of the other

alleged harassment. See id. at 1-10. Both Schafler’s complaint and briefs on

appeal contain extremely general allegations that fail to aver that these claims arose

after her previous lawsuit or to clarify exactly when they arose. Therefore, because

it appears that Schafler’s claims were in existence at the time of her previous

lawsuit, and she fails to show otherwise, the fourth requirement for res judicata

was met.

                                II. CONCLUSION

      Schafler’s arguments on appeal are without merit. She offers no legal

support for her contention that continuing conduct is not barred by the doctrine of

res judicata. Additionally, there is no evidence in the record to support her

allegations of bias, and the record shows that she did not file a motion for recusal.

Accordingly, the district court correctly concluded that the instant complaint was

barred by the doctrine of res judicata. Because we affirm the district court’s order



                                          10
on res judicata grounds, we need not consider the defendants’ contention that

Schafler’s brief violated the Federal Rules of Appellate Procedure. Accordingly,

we AFFIRM.




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