                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JULY 01, 2008
                             No. 07-14528                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 06-81064-CV-KLR

M.D. BRUCE DAVID BURSTEIN,

                                                           Plaintiff-Appellant,

                                  versus

M.D. CASWELL RUMBALL,
                                                          Defendant-Appellee,

M.D. JOSEPH DEGIOANNI,
EMTEL, INC.,                                              Defendants.


                       ________________________

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

                              (July 1, 2008)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
       Bruce David Burstein, a physician, appeals from the district court’s

dismissal with prejudice of his 42 U.S.C. § 1981 suit against Caswell Rumball, in

which he alleged Rumball retaliated against him for filing a race discrimination

complaint.1 The district court, noting Burstein had brought two other suits

stemming from the same facts against the same defendants or those in privity with

them, dismissed the present action pursuant to Federal Rule of Civil Procedure

12(b)(6) on the grounds of res judicata, improper claim splitting, and collateral

estoppel. Burstein asserts Rumball was not in privity with defendants in a prior

proceeding, Burstein v. Emtel, Inc., No. 0:03-cv-60474-WJZ (S.D. Fla. 2006)

(unpublished) (Burstein I), and the issues of liability in the present case differ from

those in Burstein I and a second action which was dismissed without prejudice,

Burstein v. Rumball, No. 9:05-cv-80544-DTKH (S.D. Fla. 2005) (unpublished)

(Burstein II). After review, we affirm the district court’s dismissal.

       We review a grant of a motion to dismiss under Rule 12(b)(6) for failure to

state a claim de novo, accepting the allegations in the complaint as true and

construing them in the light most favorable to the plaintiff. Swann v. S. Health

Partners, Inc., 388 F.3d 834, 836 (11th Cir. 2004). “We also review de novo a



       1
          Burstein also sued Joseph Degioanni and Emtel, Inc. (Emtel Texas), and the district
court likewise dismissed the suit with respect to them. Nevertheless, because Burstein has since
settled his claims against those parties, they are not at issue in this appeal.

                                                2
district court’s determination of res judicata or collateral estoppel.” EEOC v.

Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004). Whether a party is in

privity with another for claim preclusion purposes is a question of fact reviewed

for clear error. Id. Whether a party is a virtual representative of another is also a

question of fact. Id. at 1287. Likewise, a district court’s conclusion that an issue

was actually litigated in a prior action is also reviewed for clear error. Richardson

v. Miller, 101 F.3d 665, 667-68 (11th Cir. 1996). Clear error is a highly deferential

standard of review and will not be found unless, although there is evidence in the

record to support the finding, “the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been committed.”

Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir.

2007) (quotations omitted).

      “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). “The purpose behind the doctrine of res judicata is that the

full and fair opportunity to litigate protects a party’s adversaries from the expense

and vexation attending multiple lawsuits, conserves judicial resources, and fosters

reliance on judicial action by minimizing the possibility of inconsistent decisions.”

Id. (quotations and alteration omitted). Four elements are required for res judicata



                                           3
to bar a subsequent suit: “(1) there must be a final judgment on the merits; (2) the

decision must be rendered by a court of competent jurisdiction; (3) the parties, or

those in privity with them, must be identical in both suits; and (4) the same cause

of action must be involved in both cases.” I.A. Durbin, Inc. v. Jefferson Nat’l

Bank, 793 F.2d 1541, 1549 (11th Cir. 1986).

      Privity applies when a person, though not a party to the suit, has interests

adequately represented by someone who is a party in the suit. Pemco, 383 F.3d at

1286. Privity may be found, under the doctrine of virtual representation, “when

the respective interests are closely aligned and the party to the prior litigation

adequately represented those interests.” Jaffree v. Wallace, 837 F.2d 1461, 1467

(11th Cir. 1988) (quotations omitted). In other words, “a person may be bound by

a judgment even though not a party if one of the parties to the suit is so closely

aligned with his interests as to be his virtual representative.” Pemco, 383 F.3d

at 1287 (quotations omitted). In determining whether virtual representation exists,

we examine several factors, including: (1) participation in the first litigation;

(2) apparent consent to be bound; (3) apparent tactical maneuvering; and (4) close

relationships between the parties and non-parties. Jaffree, 837 F.2d at 1467.

Although the existence of only one factor may be insufficient, all the factors need

not be found. Pemco, 383 F.3d at 1287. Privity may also be established based on



                                            4
the doctrine of control, i.e., if a party effectively controlled the previous litigation.

Id. at 1290.

       A corporation and its directors are not in privity merely because identical

claims are made against each of them. Citibank, N.A. v. Data Lease Fin. Corp.,

904 F.2d 1498, 1502 (11th Cir. 1990). “When a person suffers injury as the result

of the concurrent or consecutive acts of two or more persons, he has a claim

against each of them.” Id. (quotations omitted). Nevertheless, we have noted

“[m]ost other federal circuits have concluded that employer-employee or principal-

agent relationships may ground a claim preclusion defense, regardless which party

to the relationship was first sued.” Id. (quoting Lubrizol Corp. v. Exxon Corp., 871

F.2d 1279, 1288 (5th Cir. 1989)).

       In determining whether the causes of action are the same, we examine

whether the primary right and duty are the same in each case and compare the

substance of the actions, not their form. Ragsdale, 193 F.3d at 1239. “It is now

said, in general, that if a case arises out of the same nucleus of operative fact, or is

based upon the same factual predicate, as a former action, that the two cases are

really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.” Id.

(quotations omitted). We examine whether the factual issues in both cases arose

out of the same transaction or series of transactions. See id.



                                             5
      The Burstein I complaint, brought against Medical Director Kenneth

Scheppke and Emtel, Inc. (Emtel Florida), raised several claims, including race

discrimination and retaliation under 42 U.S.C. § 1981, race discrimination under

Title VII, 42 U.S.C. 2000e-2(a), and a claim under the Florida Civil Rights Act,

§ 760.10, Fla. Stat. The complaint alleged that, after complaining about

Scheppke’s attacks on his race and religion, Burstein was terminated. Burstein was

ultimately awarded $675,000 against Emtel Florida for retaliation. The Burstein II

complaint, brought against Rumball and Degioanni, raised a single 42 U.S.C.

§ 1981 retaliation claim and reiterated the same core facts as the Burstein I

complaint. The district court dismissed it without prejudice based on claim

preclusion, and Burstein did not appeal.

      Here, the first two elements of res judicata clearly exist. A final judgment

on the merits was entered in Burstein I, and that decision was entered by the same

court involved in the present case–the Southern District of Florida.

      The district court did not specifically state it was relying on “virtual

representation” or the doctrine of control in finding privity, although it made clear

that Rumball was an employee and/or agent of Emtel Florida, and Emtel Florida

was vested with the authority of representation. With respect to Emtel Florida

acting as Rumball’s virtual representative, although high-ranking employees of a



                                           6
corporation are not in privity with the corporation merely because identical claims

are made against them, see Citibank, N.A., 904 F.2d at 1502, Rumball was Emtel’s

medical director, and was also instrumental in making the decision to terminate

Burstein. Although Rumball suggested in Burstein II, which involved the same

retaliation claim as the present case, that he lacked control over the Burstein I

litigation by noting he had not conducted any discovery or been represented by

counsel in that case, he also stated that Burstein’s claims were identical, even

though issues of liability may have differed. Burstein himself also contended that

the same employment dispute was involved. To the extent his position as medical

director gave him control over the litigation, Rumball also satisfied the

requirements of the doctrine of control. See Pemco, 383 F.3d at 1290.

Accordingly, the district court did not clearly err by finding Rumball was in privity

with Emtel Florida. See Morrissette-Brown, 506 F.3d at 1319.

        With respect to the fourth element of res judicata, the same retaliation claim

was raised in Burstein I. Accordingly, all four elements exist and the district court

did not err in finding the present suit was barred by res judicata.2

        AFFIRMED.



        2
          In light of our conclusion, we need not address the district court’s holdings, in the
alternative, that the suit is also barred by a prohibition against claim splitting and collateral
estoppel.

                                                   7
