             Case: 10-13623     Date Filed: 01/07/2013     Page: 1 of 22

                                                                           [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 10-13623
                           ________________________

                       D.C. Docket No. 1:08-cv-23386-ASG



INACIO LOBO,
JOHN GOMEZ,
et al., each on their own behalf and on
behalf of all other current and former
employees of Celebrity Cruises, Inc. similarly situated,

                                                    Plaintiffs,

INACIO LOBO,
JOHN GOMEZ,
JOAO RODRIGUES,
RAIMUNDO REBELLO,
ANTONIO MENEZES,
LAZARO D'COSTA,
MENINO SERRAO,
LUIS PEREIRA,
ALEXIO FERNANDES,
AGNELO FERNANDES,
MINGUEL PEREIRA,

                                                    Plaintiffs - Appellants,

                                       versus
             Case: 10-13623     Date Filed: 01/07/2013     Page: 2 of 22



CELEBRITY CRUISES, INC.,
FEDERAZIONE ITALIANAN TRANSPORTI,

                                                    Defendants - Appellees.


                           ________________________

                                 No. 10-10406
                           ________________________

                       D.C. Docket No. 1:09-cv-22991-PCH



JOHN GOMEZ,
JOAO RODRIGUES,
et al., each on their own behalf and on
behalf of all other current and former
employees of Celebrity Cruises, Inc. similarly situated,

                                                    Plaintiffs,

JOHN GOMEZ,
JOAO RODRIGUES,
RAIMUNDO REBELLO,
AGENELO ANTONIO MENEZES,
LAZARO D'COSTA,
MENINO SERRAO,
LUIS PEREIRA,
ALEXIO FERNANDES,
AGNELO FERNANDES,
MINGUEL PEREIRA,

                                                    Plaintiffs - Appellants,

                                       versus

                                         2
               Case: 10-13623        Date Filed: 01/07/2013      Page: 3 of 22



CELEBRITY CRUISES, INC.,

                                                           Defendant - Appellee.


                               ________________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                             ________________________
                                   (January 7, 2013)

Before TJOFLAT, PRYOR and RIPPLE,* Circuit Judges.

TJOFLAT, Circuit Judge:

                                               I.

                                               A.

       In Lobo v. Celebrity Cruises, Inc. (“Lobo I”), 488 F.3d 891 (11th Cir. 2007),

we held that the Convention on the Recognition and Enforcement of Foreign

Arbitral Awards (“Convention”) and its implementing legislation, 9 U.S.C. §§ 202-

208, superceded the Seaman’s Wage Act, 46 U.S.C. § 10313, and required the

District Court to grant a motion to compel arbitration of a foreign seaman’s claim

for wages allegedly due under a collective bargaining agreement. We accordingly

affirmed the District Court’s order compelling the arbitration of a cabin steward’s


       *
          Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.

                                               3
                  Case: 10-13623         Date Filed: 01/07/2013        Page: 4 of 22

claim for wages—in the form of tips passengers paid for his services—that his

employer, a cruise line, allegedly withheld.1

       The cabin steward was Inacio Lobo. After his case was submitted to

arbitration, Lobo became dissatisfied with the representation his union,

Federazione Italianan Transporti (“FIT”), was providing him; so he returned to the

District Court—this time with a class action2 against the union and the cruise line

under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185,3

asserting both hybrid and non-hybrid claims for the tips he and other cabin

stewards had not received.4 Lobo v. Celebrity Cruises, Inc. (“Lobo II”), No. 08-

23386 (S.D. Fl. 2008). His hybrid claim against his employer, Celebrity Cruises,

Inc. (“Celebrity”), was that it breached the wage provisions of the collective

bargaining agreement (“CBA”) it had with FIT. His hybrid claim against FIT was

       1
           Lobo I was brought as a class action, but the plaintiff did not seek class certification.
       2
           As in Lobo I, the plaintiff did not seek class certification.
       3
        Lobo’s complaint invoked the District Court’s subject matter jurisdiction under 28
U.S.C. § 1331 (federal question) and 28 U.S.C. § 1333 (admiralty).
       4
          A hybrid claim is a suit in which a plaintiff may simultaneously assert a claim against
his employer and a claim against his union. This type of claim supersedes the Convention and
permits a suit in federal court. See DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151,
163-65, 103 S.Ct. 2281, 2290-92, 76 L.Ed.2d 476 (1983) (“Ordinarily . . . an employee is
required to attempt to exhaust any grievance or arbitration remedies provided in the collective-
bargaining agreement. . . . [But] when the union representing the employee in the
grievance/arbitration procedure . . . breach[es] its duty of fair representation . . . an employee
may bring suit against both the employer and the union, notwithstanding the outcome or finality
of the grievance or arbitration proceeding.”).

                                                    4
                Case: 10-13623       Date Filed: 01/07/2013        Page: 5 of 22

that it breached the duty of fair representation it owed him under § 9(a) of the

National Labor Relations Act (“NLRA”), 29 U.S.C. § 159.5 Lobo’s non-hybrid

claim was lodged against FIT; it replicated the § 9(a) allegations of the hybrid

claim.

         Lobo and the members of the putative class were citizens and residents of

India. FIT is an Italian union. Celebrity is a Liberian corporation; its cruise ships

are registered in the Bahamas. The defendants, citing Benz v. Compania Naviera

Hidalgo, S.A., 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957) and McCulloch v.

Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9

L.Ed.2d 547 (1963), separately moved the District Court to dismiss Lobo’s

complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim for relief. FIT also moved the court to dismiss it from the case under Federal

Rule of Civil Procedure 12(b)(5) for insufficient service of process. In an order

entered on September 10, 2009, the court granted FIT’s Rule 12(b)(5) motion and

dismissed the complaint against it without prejudice. It agreed with both

defendants that Benz foreclosed Lobo’s hybrid claims; as Benz explicitly held, the


         5
         This claim arises under federal common law. See Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 44, 119 S.Ct. 292, 299, 142 L.Ed.2d 242 (1998) (“When a labor organization
has been selected as the exclusive representative of the employees in a bargaining unit, it has a
duty, implied from its status under § 9(a) of the NLRA as the exclusive representative of the
employees in the unit, to represent all members fairly.”).

                                                5
                Case: 10-13623       Date Filed: 01/07/2013       Page: 6 of 22

LMRA does not apply to labor disputes between foreign crew members and a

foreign ship owner. 353 U.S. at 143, 77 S.Ct. at 702. The court therefore

dismissed the complaint as to Celebrity with prejudice.

                                               B.

       After perfecting service of process on FIT, Lobo filed an amended complaint

against FIT alone. He reasserted a non-hybrid breach of fair representation claim

under § 9(a) as well as under federal common law. He also added a state law claim

for breach of a duty of “good faith and fair dealing.”6 FIT moved the District

Court to dismiss the amended complaint under Federal Rule of Civil Procedure

12(b)(1) for lack of subject matter jurisdiction. On July 7, 2010, the court granted

the motion. In its view, since the non-hybrid claim could not be brought under the

LMRA and the NLRA, the court lacked the subject matter jurisdiction needed to

entertain the amended complaint. On July 8, 2010, the District Court, in

conformance with its orders of September 10, 2009, and July 7, 2010, entered final

judgment in favor of Celebrity and FIT.



                                               C.

       6
         Lobo brought the state law claim under the District Court’s supplemental jurisdiction,
28 U.S.C. § 1367. The CBA contained a provision stating that the agreement was to be
construed under Florida law. The amended complaint alleged that parties to a contract are
obligated to deal with one another in good faith and fairly.

                                                6
                  Case: 10-13623         Date Filed: 01/07/2013        Page: 7 of 22

       While Lobo II was pending in the District Court, John Gomez and nine of

the cabin stewards named in that case brought a class action against Celebrity

under the Seaman’s Wage Act, seeking damages in the amount of the tips Celebrity

had allegedly withheld. Gomez v. Celebrity Cruises, Inc., No. 09-22991 (S.D. Fl.

2009).7 Rather than invoking the arbitration provision of the CBA, Celebrity

moved the court to dismiss the case under the doctrine of res judicata. Celebrity

argued that the plaintiffs should have, but did not, assert their Seaman’s Wage Act

claim in Lobo II. The District Court agreed and on December 23, 2009, dismissed

the case with prejudice.8

       Gomez and the nine other cabin stewards who had joined him in Lobo II and

Gomez (the “Stewards”) appealed the District Court’s judgments in both cases,

Appeal Nos. 10-13623 and 10-10406, respectively. We address the appeals

separately, beginning with Lobo II.




                                                   II.


       7
         Inacio Lobo was not included as a named plaintiff because he and Celebrity had settled
the claim he had brought in Lobo I and, again, in Lobo II.
       8
           The court did so without having first certified the plaintiffs’ class.

                                                    7
               Case: 10-13623        Date Filed: 01/07/2013       Page: 8 of 22

                                               A.

       The hybrid claims in Lobo II were dismissed under Rule 12(b)(6) for failure

to state a claim. We review Rule 12(b)(6) dismissals de novo, accepting the

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

to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).

       The District Court dismissed the Stewards’ hybrid claims against Celebrity

and FIT after determining that the Supreme Court’s decisions in Benz and

McCulloch foreclosed the application of the LMRA and the NLRA to wage

disputes between foreign ships and foreign seamen.9 We agree.

       It is well-settled that these statutes do not apply to wholly-foreign disputes.

In Benz, the Supreme Court concluded that “Congress did not fashion [the LMRA]

to resolve labor disputes between nationals of other countries operating ships under

foreign laws. The whole background of the Act is concerned with industrial strife

between American employers and employees.” 353 U.S. at 143-44, 77 S.Ct. at

702. The Benz court found this legislative history compelling, as “inescapably

describ[ing] the boundaries of the Act as including only the workingmen of our

own country and its possessions.” Id. at 144, 77 S.Ct. at 703. Similarly, the

       9
         The LMRA was actually a series of amendments to the NLRA. Because the implied
duty of fair representation has been found under § 9(a) of the original NLRA, and the vehicle to
bring a hybrid claim has been found under the later addition of § 301 of the LMRA, we join the
parties and the District Court in distinguishing between the acts.

                                                8
              Case: 10-13623     Date Filed: 01/07/2013     Page: 9 of 22

Supreme Court has held that the NLRA does not extend to foreign crews working

aboard foreign ships because such an application would interfere with the “internal

management and affairs” of the ship. McCulloch, 372 U.S. at 20-21, 83 S.Ct. at

677. Thus, as the Supreme Court indicated in Spector v. Norwegian Cruise Line

Ltd., 545 U.S. 119, 130, 125 S.Ct. 2169, 2177, 162 L.Ed.2d 97 (2005), Benz and

McCulloch stand for the proposition that “[a]bsent a clear statement of

congressional intent, general statutes [like the LMRA or the NLRA] may not apply

to foreign-flag vessels insofar as they regulate matters that involve only the

internal order and discipline of the vessel.”

      We need not labor long to determine whether a wage dispute between a

foreign-flag vessel and its foreign crew falls within the internal affairs of a ship.

Benz and McCulloch have plainly answered that question. See Benz, 353 U.S. at

142-44, 77 S.Ct. at 701-02 (holding the LMRA inapplicable to the picketing of a

foreign ship operated entirely by foreign seamen); McCulloch, 372 U.S. at 12-13,

83 S.Ct. at 672-73 (holding that the National Labor Relations Board could not

order a union election because the NLRA did not apply to foreign seamen aboard

foreign vessels). As the Supreme Court has made clear, the LMRA and NLRA do

not apply to “wage disputes arising on foreign vessels between nationals of other




                                           9
               Case: 10-13623        Date Filed: 01/07/2013        Page: 10 of 22

countries,” even when “the vessel comes within our territorial waters.”10 Benz, 353

U.S. at 142, 77 S.Ct. at 702.

       Here, the Stewards are engaged in a wage dispute with their employer,

Celebrity, and their labor union, FIT. All parties in this dispute are foreign. The

holdings of Benz and McCulloch control.

       The Stewards contend that Benz is inapplicable. They attempt to distinguish

the case by noting that Benz concerned the picketing of ships, whereas the

Stewards’ claim concerns a contractual breach over wages. The seamen in Benz,

however, were picketing because they “demanded that their term of service be

reduced, their wages be increased, and more favorable conditions of employment

be granted.” 353 U.S. at 139, 77 S.Ct. at 700. Just like the Stewards, the Benz

plaintiffs were engaged in (among other things) a wage dispute arising from their

employment contract with their foreign-flag vessel. The LMRA does not apply to

these disputes.

       The Stewards next argue that, even if Benz is on point, it was implicitly

overruled by Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26

L.Ed.2d 252 (1970). According to the Stewards, Hellenic Lines replaced the Benz


       10
          The Stewards raise the argument that the presumption against extraterritorial
application should not apply here. This contention is inapposite. The question of applicability
turns on the identity of parties, not whether their conduct occurred within United States territory.

                                                10
             Case: 10-13623     Date Filed: 01/07/2013   Page: 11 of 22

and McCulloch “internal affairs” framework with a choice of law analysis

determined by the points of contact an employer has with the United States. This

mode of analysis was rejected by the Supreme Court in McCulloch. 372 U.S. at 19

n.9, 83 S.Ct. at 676 n.9 (noting that points of contact analysis is inappropriate when

application of the NLRA would interfere with the internal order of the ship, though

could be applied to contexts arising under the Jones Act). Hellenic Lines did not

disturb McCulloch’s holding. In Hellenic Lines the Supreme Court found that tort

claims brought under the Jones Act could be maintained by a foreign seaman

against a foreign ship. 372 U.S. at 308-310, 83 S.Ct. at 1733-34. The Supreme

Court, however, has not extended the Hellenic Lines analysis to maritime contract

cases—such as this case—and this court has expressly declined to do so. See

Dresdner Bank AG v. M/V Olympia Voyager, 446 F.3d 1377, 1381 (11th Cir.

2006) (declining to extend the Lauritzen and Hellenic Lines points of contact

analysis to maritime contracts). Indeed, the Supreme Court reaffirmed the

reasoning of Benz and McCulloch in Spector—a case post-dating Hellenic

Lines—where it determined the applicability of the Americans with Disabilities

Act to foreign ships. 545 U.S. at 129-30, 125 S.Ct. at 2177. The analysis in Benz

and McCulloch continues to be the relevant inquiry.

      The Stewards claim that, even if Benz and McCulloch control, the internal


                                         11
             Case: 10-13623      Date Filed: 01/07/2013    Page: 12 of 22

affairs of Celebrity’s ships would not be disrupted were we to apply the LMRA

and the NLRA to this dispute. They argue that applying these statutes would

merely compel the paying of wages, not affect the “movement and functioning” of

the ships. This argument misapprehends the internal affairs inquiry. Federal

courts are not charged with predicting the operational consequences of applying

these statutes on a case-by-case basis. Nor have the Stewards presented support

suggesting otherwise. To adopt this reasoning would lead to the kind of inquiry

into the “internal order and discipline” that McCulloch concluded would be

“entirely infeasible in actual practice.” 372 U.S. at 19, 83 S.Ct. at 676. Because

the Supreme Court has already determined that wage disputes between a foreign

vessel and its foreign crew fall within the internal affairs of a ship, we are

foreclosed from revisiting the question. Benz, 353 U.S. at 142-43, 77 S.Ct. at 702.

      The Stewards also contend that applying these statutes will not negatively

impact international comity. This argument addresses the canon of statutory

construction applied in Benz and McCulloch that, absent an express statement from

Congress, we do not construe statutes to extend to disputes between foreign parties

where the United States maintains no interest. See Spector, 545 U.S. at 131-32,

125 S.Ct. at 2178 (“It is reasonable to presume Congress intends no interference

with matters that are primarily of concern only to the ship and the foreign state in


                                           12
             Case: 10-13623      Date Filed: 01/07/2013   Page: 13 of 22

which it is registered.”). The Supreme Court has refused to disrupt this rule unless

clearly instructed by Congress, Benz, 353 U.S. at 147, 77 S.Ct. at 704, particularly

where, as here, the legislative record bears no mention of foreign application. See

Windward Shipping (London) Ltd. v. Am. Radio Ass’n, AFL-CIO, 415 U.S. 104,

113, 94 S.Ct. 959, 964, 39 L.Ed.2d 195 (1974) (“We are even more reluctant to

attribute to Congress an intention to disrupt this comprehensive body of law by

construction of an Act unrelated to maritime commerce and directed solely at

American labor relations.”).

      This canon is rooted in a general concern for international comity.

Nevertheless, the Stewards argue that this canon should be applied on a case-by-

cases basis and not under these facts. They argue that, unlike in McCulloch where

Honduras had a strong interest in applying its laws to Honduran citizens, the

Bahamas has no interest in applying its labor laws here because the Stewards are

citizens of India, not the Bahamas.

      A case-specific inquiry into the effect on international relations is not

permitted. Though the McCulloch court had occasion to illustrate how the

application of these statutes could readily arouse international discord, see 372

U.S. at 21, 83 S.Ct. at 677, the case-specific facts of a particular dispute do not

govern the analysis. Benz clearly illustrates that the concern for international


                                          13
              Case: 10-13623     Date Filed: 01/07/2013     Page: 14 of 22

comity in these cases is general in nature and not allayed by a case-by-case,

effects-oriented inquiry. Though that case was about the LMRA, the Benz court

recounted the international rancor that was aroused when Congress proposed

certain amendments to the Seamen’s Wage Act11—a statute unrelated to the

LMRA. The Court explained that the extension of the LMRA to disputes between

foreign parties had the potential to create an analogous reaction. The Court

mentioned no brewing international backlash over the potential extension of the

LMRA itself; it merely used the Seaman’s Wage Act tensions to illustrate the

potential for international discord were the Court to apply generally-worded

statutes to wholly-foreign disputes without express instruction from Congress. See

Benz, 353 U.S. at 146, 77 S.Ct. at 703-04. An actual or imminent international

quarrel therefore is not necessary to deny the application of these statutes;

Congress must speak clearly regardless of the specific facts of a particular case.

We would upend this principle were we to entertain the Stewards’ argument here.

      Lastly, the Stewards contend that § 301 of the LMRA is coextensive with

the remedies under the Seaman’s Wage Act, which expressly permits foreign

seamen to bring suit against foreign ships. The Stewards base this argument on



      11
          These amendments would have extended the Seaman’s Wage Act to advance payments
given to foreign seaman by foreign vessels. See Benz, 353 U.S. at 146, 77 S.Ct. at 703-04.

                                            14
               Case: 10-13623       Date Filed: 01/07/2013      Page: 15 of 22

U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 357, 91 S.Ct. 409, 413, 27

L.Ed.2d 456 (1971), which held that § 301 functions as “an optional remedy” to

seamen in addition to those available under the Seaman’s Wage Act. The holding

in Bulk Carriers was a narrow one: the Court held that the express remedy in the

Seaman’s Wage Act was not implicitly overruled by the addition of arbitration

procedures in § 301 of the LMRA; rather, the LMRA merely afforded seamen an

additional path to recovery. Id. at 357-58, 91 S.Ct. at 413. Furthermore, the

plaintiff in Bulk Carriers was an alien resident of Baltimore that was represented

by an American union and worked aboard an American ship. Arguelles v. U.S.

Bulk Carriers, Inc., 408 F.2d 1065, 1066, 1068 (4th Cir. 1969). Because the

dispute in Bulk Carriers involved an American ship and an American union, there

is no justification for reading that case as extending § 301 to disputes between

foreign parties. See Int’l Longshoremen’s Local 416, AFL-CIO v. Ariadne

Shipping Co., 397 U.S. 195, 199-200, 90 S.Ct. 872, 874, 25 L.Ed.2d 218 (1970)

(holding that American residents hired by a foreign ship to work on an American

dock did not involve the internal affairs of a foreign ship).12

       12
          The Stewards’ have also presented plain meaning and legislative purpose arguments.
They are foreclosed by Benz and McCulloch. Benz, 353 U.S. at 144, 77 S.Ct. at 702-03 (noting
the complete absence of legislative history indicating the LMRA’s application to disputes
between foreign parties); McCulloch, 372 U.S. at 19-20, 83 S.Ct. at 676-77 (rejecting a literal
reading of the NLRA’s language given the extensive legislative history suggesting the Act
applies only to American workingmen and their employers).

                                              15
             Case: 10-13623      Date Filed: 01/07/2013    Page: 16 of 22

                                           B.

      Next, we address the District Court’s decision to dismiss the Stewards’ non-

hybrid claims under Rule 12(b)(1). We review dismissal for lack of subject matter

jurisdiction de novo. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th

Cir. 2009). In its July 7, 2010, order, the District Court considered the

applicability of the judicially-created duty of fair representation. Finding no other

source for the duty of fair representation other than in the NLRA and finding the

NLRA inapplicable to the Stewards’ case, the District Court dismissed the

Stewards’ claim under Rule 12(b)(1) for lack of subject matter jurisdiction.

      To determine whether a complaint states a federal cause of action is a merits

question. Morrison v. Nat’l Australia Bank, Ltd., — U.S. —, 130 S. Ct. 2869,

2877, 177 L.Ed.2d 535 (2010). “Subject-matter jurisdiction, by contrast, refers to

a tribunal’s power to hear a case.” Id. (internal quotation marks omitted). Where a

plaintiff’s well-pleaded complaint alleges a cause of action arising under federal

law, subject matter jurisdiction exists for a federal court to determine whether the

allegations entitle him to relief. City of Chicago v. Int’l Coll. of Surgeons, 522

U.S. 156, 163, 118 S.Ct. 523, 529, 139 L.Ed.2d 525 (1997); see Bell v. Hood, 327

U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (“Jurisdiction . . . is not

defeated . . . by the possibility that the averments might fail to state a cause of


                                           16
                Case: 10-13623        Date Filed: 01/07/2013        Page: 17 of 22

action on which petitioners could actually recover.”). Because the Stewards

sufficiently alleged a breach of the federal common law duty of fair representation

under the NLRA, the District Court had subject matter jurisdiction to hear the case

under 28 U.S.C. § 1331. See Marquez, 525 U.S. at 49, 119 S.Ct. at 302 (“[W]hen a

plaintiff alleges a breach of the duty of fair representation, this claim is cognizable

in . . . federal court.”).

       Nevertheless, we affirm the dismissal of the fair representation claim under

Rule 12(b)(6) for failure to state a claim.13 See Lucas v. W.W. Grainger, Inc., 257

F.3d 1249, 1256 (11th Cir. 2001) (“[W]e may affirm [the District Court’s]

judgment on any ground that finds support in the record.”) (internal quotation

marks omitted).

       The Stewards contend that even if the hybrid mechanism of § 301 of the

LMRA is inapplicable, they can still maintain a non-hybrid claim against FIT

under § 9(a) of the NLRA. They argue that our precedent dictates that the NLRA

applies when a foreign union engages in wrongful conduct through its agents



       13
          Though the District Court had jurisdiction to hear the fair representation claim, this
does not revive the Stewards’ state law claim for breach of good faith and fair dealing. The
District Court indicated that even if it if had original jurisdiction it would decline to exercise
supplemental jurisdiction over the Stewards’ state law claim. We need not disturb this
disposition. See Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004) (“We have
encouraged district courts to dismiss any remaining state claims when . . . the federal claims
have been dismissed prior to trial.”).

                                                  17
             Case: 10-13623     Date Filed: 01/07/2013   Page: 18 of 22

within the United States. To support this contention, the Stewards look to our

decision in Dowd v. Int’l Longshoremen’s Assoc., AFL-CIO, 975 F.2d 779 (11th

Cir. 1992). Dowd does not support this argument. Dowd concerned the

application of the NLRA to an American labor union that induced a foreign union

to pressure foreign importers to establish a secondary boycott in the United States.

Id. at 781. The application of the NLRA to the American union in that case—and

the noticeable absence of NLRA claims against the foreign union—actually

supports the argument that the NLRA does not apply to the Stewards’ claims.

Indeed, in Dowd we restated the Supreme Court’s holding in McCulloch. 975 F.2d

at 788 (“[T]he NLRA does not regulate the practices of owners of foreign vessels

which are temporarily present in an American port with regard to foreign

employees working on these vessels.”). The Stewards have failed to identify a

source for the duty of fair representation other than the NLRA. Because the NLRA

does not apply when its application would only concern the internal affairs of a

foreign vessel, the Stewards cannot bring a fair representation claim under it here.



                                         III.

      We now move to Gomez. The doctrine of res judicata, or claim preclusion,

bars the parties to an action from litigating claims that were or could have been


                                         18
             Case: 10-13623     Date Filed: 01/07/2013   Page: 19 of 22

litigated in a prior action between the same parties. Jaffree v. Wallace, 837 F.2d

1461, 1466 (11th Cir. 1988). The party asserting claim preclusion as a defense

must establish four elements: (1) the prior decision must have been rendered by a

court of competent jurisdiction; (2) there must have been a final judgment on the

merits; (3) both cases must involve the same parties or their privies; and (4) both

cases must involve the same causes of action. In re Piper Aircraft Corp., 244 F.3d

1289, 1296 (11th Cir. 2001). We review a claim preclusion decision de novo. Id.

at 1295.

      The question before us is whether the dismissal of the LMRA claim in Lobo

II precluded the Stewards from bringing a claim under the Seaman’s Wage Act in

Gomez. The parties agree that the District Court exercised competent jurisdiction

and that the actions involve the same parties. The parties dispute whether the

District Court’s order dismissing the LMRA claim was a final judgment on the

merits and whether the cases share the same cause of action.



                                         A.

      We agree with the Stewards that the District Court’s September 10, 2009,

order dismissing the LMRA claims in Lobo II was not a final judgment. Although

the Stewards appealed that order, we dismissed the appeal for lack of jurisdiction


                                         19
               Case: 10-13623        Date Filed: 01/07/2013       Page: 20 of 22

because the order was not final or immediately appealable. This order was not

claim preclusive. See First Ala. Bank, N.A. v. Parsons Steel, Inc., 825 F.2d 1475,

1480 n.5 (11th Cir. 1987) (“Nonappealable interlocutory orders are not entitled to

collateral estoppel or res judicata effect.”)14 Nevertheless, we take judicial notice

of the District Court’s entry of judgment on July 8, 2010, in Lobo II. This

judgment rendered the September 10, 2009, dismissal final.

       We also conclude that the September 10, 2009, order was an adjudication on

the merits because the order was a Rule 12(b)(6) dismissal with prejudice. Hall v.

Tower Land & Inv. Co., 512 F.2d 481, 483 (5th Cir. 1975) (“[G]ranting

defendant’s motion to dismiss for plaintiff’s failure to state a claim upon which

relief can be granted operates as an adjudication on the merits.”); see Citibank,

N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir. 1990) (“[D]ismissal

of a complaint with prejudice satisfies the requirement that there be a judgment on

the merits.”). The Stewards’ contention that a judgment on the merits occurs only


       14
          Celebrity correctly observes that the categories of appealable orders and orders entitled
to preclusive effect do not always overlap. Yet the differences between the two arise not
because some preclusive orders are non-final, but because some non-preclusive orders are
nevertheless appealable. See, e.g., 18 Moore’s Federal Practice - Civil § 131.30[2][c][i] (3d ed.
2010) (“The Supreme Court has construed the term ‘final decision’ to embrace some collateral
orders the effect of which cannot be rectified on appeal from final judgment. Furthermore, 28
U.S.C. § 1292 provides for appeals of certain interlocutory orders. Even though such matters are
‘appealable,’ they could not be the basis for claim preclusion.” (footnotes omitted)). 9 U.S.C. §
16(a)(1) is particularly on point: interlocutory orders denying a motion to compel arbitration are
generally appealable.

                                                20
               Case: 10-13623       Date Filed: 01/07/2013       Page: 21 of 22

when the rendering court has addressed the substance of every claim to be later

precluded is baseless. The District Court’s judgment of July 8, 2010, constitutes a

final adjudication on the merits as to Celebrity.15

                                               B.

       Next, the parties dispute whether the cause of action in Gomez is the same as

the one in Lobo II. A cause of action is the same for res judicata purposes if it

“arises out of the same nucleus of operative fact, or is based upon the same factual

predicate, as a former action.” Piper, 244 F.3d at 1297. The Stewards argue that

there is no common nucleus of operative fact here because the LMRA claim in

Lobo II arose out of Celebrity’s conduct during the arbitration and not out of the

company’s failure to pay wages. But claim preclusion “applies not only to the

precise legal theory presented in the prior case, but to all legal theories and claims

arising out of the same nucleus of operative fact.” NAACP v. Hunt, 891 F.2d

1555, 1561 (11th Cir. 1990).

       The test for a common nucleus of operative fact is “whether the same facts

are involved in both cases, so that the present claim could have been effectively

       15
          The Stewards also argue that the District Court’s dismissal of the claim against
Celebrity in Lobo II was “purely a dismissal for lack of subject matter jurisdiction”—and thus
lacks claim-preclusive effect. In its September 10, 2009 order, the District Court dismissed the
Stewards’ hybrid claim against Celebrity for failure to state a claim, not for lack of subject
matter jurisdiction. The Stewards’ characterization of the District Court’s September 10, 2009,
order is meritless.

                                               21
              Case: 10-13623   Date Filed: 01/07/2013   Page: 22 of 22

litigated with the prior one.” Piper, 244 F.3d at 1301. A comparison of the

complaints reveals that the facts in the LMRA claim in Lobo II and the Seaman’s

Wage Act claim in Gomez were alleged verbatim. This satisfies the same cause of

action requirement.

                                        IV.

      We affirm the District Court in Appeal No. 10-13623. Because the Stewards

are foreign employees involved in an internal wage dispute with a foreign ship,

neither the LMRA nor the NLRA apply to the Stewards’ challenges. Since their

claims are dependant upon the protections of those acts, the District Court properly

dismissed their claims against Celebrity and FIT in Lobo II.

      We affirm the District Court in Appeal No. 10-10406. Because the Stewards

could have raised their Seaman’s Wage Act claim in Lobo II but did not, we affirm

the District Court’s order in Gomez to dismiss the claim as barred by the doctrine

of res judicata.

AFFIRMED




                                         22
