                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            OCT 27, 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.

                       ________________________

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

                            (October 27, 2008)

                 ON PETITION FOR REHEARING AND
                SUGGESTION OF REHEARING EN BANC

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
       The petition for rehearing filed by Appellant is GRANTED,1 and we order

that the prior opinion be withdrawn, and substitute the following opinion.

       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.2 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(unpublished) (Burstein I), and the issues of liability in the present case differ from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Burstein v. Rumball, No. 9:05-cv-80544-DTKH (S.D. Fla. 2005) (unpublished)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

       1
           The petition for rehearing en banc is denied as moot.
       2
          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
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

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

Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004). A district court’s

conclusion that an issue was actually litigated in a prior action is 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).

      “When claim preclusion does not apply to bar an entire claim or set of

claims, the doctrine of collateral estoppel, or issue preclusion, may still prevent the

relitigation of particular issues which were actually litigated and decided in a prior

suit.” Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir.

1990). The party seeking to bar an issue on collateral estoppel grounds must

establish four factors: (1) the issue was identical in both the prior and current

action; (2) the issue was actually litigated in the prior action; (3) the determination

of the issue was critical and necessary to the judgment in the prior action; and



                                            3
(4) the party against whom the earlier decision is asserted had a full and fair

opportunity to litigate the issue in the earlier proceeding. Barger v. City of

Cartersville, Ga., 348 F.3d 1289, 1293 (11th Cir. 2003). This Court has also noted

another factor: that the burden of persuasion in the subsequent action was not

significantly heavier than in the prior proceeding. Johnson v. Florida, 348 F.3d

1334, 1347 (11th Cir. 2003). Although res judicata requires a final judgment, the

finality requirement for collateral estoppel is “less stringent.” In re Bayshore Ford

Trucks Sales, Inc., 471 F.3d 1233, 1253 (11th Cir. 2006) (citing Christo v. Padgett,

223 F.3d 1324, 1339 (11th Cir. 2000)).

       Burstein is incorrect that he could not appeal the dismissal without

prejudice of Burstein II. See Justice v. United States, 6 F.3d 1474, 1481 (11th Cir.

1993) (“A plaintiff may appeal from an involuntary dismissal without prejudice.”).

Contrary to the assertion in Rumball’s appellate brief and consistent with the

assertion in his 12(b)(6) motion, no evidence in the record exists that Burstein

moved for reconsideration of the dismissal of Burstein II.

      Collateral estoppel bars this action. The complaint in the present case is

identical to the complaint in Burstein II, except for an additional defendant here,

Emtel Texas. Both cases were dismissed based on claim preclusion principles.

This issue–i.e., whether the action was barred by principles of claim



                                           4
preclusion–was litigated in Burstein II via Burstein’s failed motion to consolidate

Burstein II with Burstein I, and Burstein’s response to the court’s order to show

cause regarding why Burstein II was not subject to dismissal. This issue was also

litigated in this case via Burstein’s response to Rumball’s 12(b)(6) motion, and

failed motion for reconsideration. Considering that both Burstein II and the

present action were dismissed based on claim preclusion, the determination of the

issue was critical and necessary to the judgment in the prior action, i.e., Burstein II.

See Barger, 348 F.3d at 1293. Finally, Burstein had a full and fair opportunity to

litigate the issue in the earlier proceeding, see id., considering that he had the

opportunity to move for reconsideration and appeal, see Justice, 6 F.3d at 1481.

Accordingly, the issue of whether the current action is barred by claim preclusion

is itself barred by collateral estoppel.3

        AFFIRMED.




        3
          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 res judicata.

                                                   5
