                                                                             [PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10823         ELEVENTH CIRCUIT
                                   Non-Argument Calendar     OCTOBER 13, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 6:07-cv-01974-GAP-GJK

CARLOS SHURICK,

lllllllllllllllllllll                                          Plaintiff - Appellant,

                                            versus

THE BOEING COMPANY,
Agent of Boeing Space Operations Company,
d.b.a. Boeing Space Operations Company,

lllllllllllllllllllll                                          Defendant - Appellee.

                                ________________________

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

                                      (October 13, 2010)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
      Carlos Shurick sued The Boeing Company, his former employer, in federal

court under the False Claims Act. He also sued Boeing in state court under the

Florida Whistleblower Act. We must decide whether a final judgment in the

former action precludes further litigation of the whistleblower claim here. In

accordance with our decision in Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235

(11th Cir. 1999), we hold that it does.

                                          I

      Carlos Shurick’s job with Boeing occasionally required him to wear a

protective respirator. But when he grew frustrated with Boeing’s failure to supply

a respirator that accommodated his eyeglasses, he refused to submit to further

respirator-fit testing, and Boeing fired him. In response, Shurick filed two

lawsuits. First, he sued Boeing in federal court as a qui tam relator on behalf of

the United States, alleging that the company had submitted false claims to the

Government for services rendered in violation of federal safety regulations. See

31 U.S.C. §§ 3729(a), 3730(b). Second, he sued Boeing in state court under the

Florida Whistleblower Act, Fla. Stat. § 448.102, alleging that the company had

fired him for complaining about its safety violations.




                                          2
       Boeing removed the whistleblower suit to federal court on the basis of

diversity jurisdiction,1 and both actions proceeded—separately—before the same

district judge. In 2008, Boeing prevailed on a motion to dismiss the qui tam action

with prejudice, and we affirmed the district court’s judgment. United States ex rel.

Shurick v. Boeing Co., 330 Fed. Appx. 781 (11th Cir. 2009). In early 2010,

Boeing prevailed on a motion for summary judgment in the whistleblower suit.

This is Shurick’s appeal.

                                               II

       The district court granted Boeing’s motion for summary judgment on the

merits after concluding that Shurick had not engaged in activity protected by the

Whistleblower Act. But although Boeing noted the dismissal of the qui tam action

in its motion for summary judgment, neither the company nor the district court

considered whether that dismissal might have any preclusive effect. We therefore

requested supplemental briefing on the question and turn now to the substance of

the issue.2


       1
           See 28 U.S.C. §§ 1332, 1441.
       2
         Although Federal Rule of Civil Procedure 8(c) classifies claim preclusion as an
affirmative defense, “[d]ismissal by the court sua sponte on res judicata grounds . . . is
permissible in the interest of judicial economy where both actions were brought before the same
court.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980); cf. Bonner v. City of Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981) (en banc) (“[T]he decisions of the United States Court of
Appeals for the [former] Fifth Circuit . . . shall be binding as precedent in the Eleventh

                                               3
       The doctrine of claim preclusion (or res judicata) bars the parties to an

action from relitigating matters that were or could have been litigated in an earlier

suit. The doctrine facilitates “the conclusive resolution of disputes” by reducing

“the expense and vexation attending multiple lawsuits, conserv[ing] judicial

resources, and foster[ing] reliance on judicial action by minimizing the possibility

of inconsistent decisions.” Montana v. United States, 440 U.S. 147, 153–54

(1979). In accordance with those values, the doctrine bars a claim whenever (1) a

court of competent jurisdiction has (2) rendered a final judgment on the merits in

another case involving (3) the same parties and (4) the same cause of action.

Rubbermaid, 193 F.3d at 1238.

       The parties here agree only that the district court had jurisdiction over the

qui tam action. Although Boeing contends that the other requirements for claim

preclusion have been met as well, Shurick argues that his whistleblower suit

implicates different parties and a different cause of action than the qui tam suit. In

addition, he stresses that no final judgment issued in the qui tam action until after

he had filed his whistleblower suit in state court.




Circuit . . . .”). And “[w]e may affirm the district court’s judgment on any ground that appears in
the record, whether or not that ground was relied upon or even considered by the court below.”
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

                                                 4
      Shurick’s argument concerning the identity of the parties is that the qui tam

action involved an additional defendant who is not a party to this litigation. But

claim preclusion operates to prevent parties “from contesting matters that they

have had a full and fair opportunity to litigate” between themselves, Montana, 440

U.S. at 153, and we have no reason to suspect that the presence of another

defendant in the qui tam action impaired Shurick’s ability to litigate his

employment dispute with Boeing.

      Nor are we are convinced by Shurick’s argument that the two lawsuits

involve different causes of action. In Ragsdale v. Rubbermaid, we considered an

appeal from the dismissal of a federal whistleblower claim under the False Claims

Act, 31 U.S.C. § 3730(h). Like Shurick, the plaintiff there had previously filed a

separate qui tam action on behalf of the United States. In holding that a settlement

in the qui tam litigation precluded the plaintiff’s subsequent whistleblower claim,

we readily concluded that the claims involved the same cause of action:

      [Because] both [the plaintiff’s] claim for retaliatory discharge under
      the FCA and his FCA qui tam claim arose from the same nucleus of
      operative fact, we conclude that the cause of action in Rubbermaid I
      and the cause of action in Rubbermaid II are the same for purposes of
      res judicata.

193 F.3d at 1240.




                                          5
       Shurick tries to distinguish Rubbermaid, but none of his distinctions are

persuasive. First, he notes that his whistleblower claim arose under Florida law

instead of the False Claims Act. Yet the differences between the two, for our

purposes, are purely cosmetic. What mattered in Rubbermaid was that

“Rubbermaid [had] engaged in illegal conduct[,] and [the plaintiff’s] discovery of

that conduct led to his discharge[:] a series of transactions closely related in time,

space, and origin.” 193 F.3d at 1240. Here, Shurick’s two lawsuits share

precisely the same common nucleus of operative fact. And although he insists that

his claims are so different that considering them together would have confused a

jury, we concluded on the similar facts of Rubbermaid that “[i]n terms of trial

convenience, there [was] a substantial overlap” between the plaintiff’s qui tam and

whistleblower claims.

       Shurick’s strongest argument is that he, unlike the Rubbermaid plaintiff,

pursued his claims concurrently rather than sequentially.3 In other words, because

he filed his lawsuits at the same time, Shurick argues that he avoided the

“textbook res judicata” situation we considered in Rubbermaid, where our primary

       3
          Shurick also observes that he filed his lawsuits in different courts, a fact of no
consequence here. Cf. Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 383 n.3
(1985) (“[P]reclusion rules bar the splitting of a cause of action between a court of limited
jurisdiction and one of general jurisdiction . . . .”).



                                               6
concern was preventing qui tam plaintiffs from strategically severing their claims

“in the hope of obtaining a second bite at the apple should their first action prove

unsuccessful.” 193 F.3d at 1240.

      The problem with this argument is that it misconstrues the claim-preclusion

doctrine’s final-judgment requirement. Although “a judgment is only conclusive

regarding the matters that the parties might have litigated . . . , for res judicata

purposes, claims that could have been brought are claims in existence at the time

the original complaint [was] filed.” Pleming v. Universal-Rundle Corp., 142 F.3d

1354, 1357 (11th Cir. 1998) (quotation marks omitted). Shurick was fired months

before filing either of his lawsuits against Boeing, and “[a] person having only a

single cause of action is generally not permitted to split up the cause of action and

maintain several suits for different parts of it.” 1 Am. Jur. 2d Actions § 103; cf.

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)

(“As between federal district courts, . . . the general principle is to avoid

duplicative litigation.”). Under these circumstances, a final judgment in one

action precluded further litigation in the second.

      Having thus concluded that all the requirements for claim preclusion have

been met, we AFFIRM the judgment of the district court.




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