               Case: 11-15448        Date Filed: 04/01/2013      Page: 1 of 27


                                                                                [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT


                                        No. 11-15448


                         D.C. Docket No. 9:08-cv-80134-DTKH


FANE LOZMAN,

                                                           Plaintiff-Appellant,

                                            versus

CITY OF RIVIERA BEACH, FLORIDA, a Florida municipal corporation,
MICHAEL BROWN, GLORIA SHUTTLEWORTH, NORMA DUNCOMBE,
VANESSA LEE, individuals, et al.,

                                                           Defendants-Appellees.



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


                                       (April 1, 2013)

Before CARNES and BLACK, Circuit Judges, and RESTANI, * Judge.

       *
           Honorable Jane A. Restani, Judge of the United States Court of International Trade,
sitting by designation.
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RESTANI, Judge:

       Plaintiff-Appellant Fane Lozman (“Lozman” or “Appellant”) appeals from

the district court’s dismissal of his amended complaint asserting, inter alia,

violations of his Constitutional rights, based on the Rooker-Feldman doctrine1 and

res judicata principles. For the following reasons, we reverse.

                JURISDICTION AND STANDARD OF REVIEW

       The jurisdiction of the federal courts to decide this matter is the primary issue

here. We have jurisdiction pursuant to 28 U.S.C. § 1291 to review a final order of a

district court. We review de novo the application of the Rooker-Feldman doctrine,

res judicata, and collateral estoppel. Doe v. Fla. Bar, 630 F.3d 1336, 1340 (11th

Cir. 2011) (Rooker-Feldman); Miccosukee Tribe of Indians v. U.S. Army Corps of

Eng’rs, 619 F.3d 1289, 1296 (11th Cir. 2010) (collateral estoppel); EEOC v. Pemco

Areoplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004) (res judicata).

                                    BACKGROUND

       At issue here is the preclusive effect of a prior state court eviction action

initiated by Defendant-Appellee City of Riviera Beach, Florida (the “City”) against

Lozman. In August 2006, the City initiated a suit in state court to evict Lozman


       1
          Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460
U.S. 462 (1983).



                                              2
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from the City-owned marina where Lozman lived in a floating home (the “eviction

action”). Lozman responded to the eviction action by filing a counterclaim, a first

amended counterclaim and, eventually, a second amended counterclaim. The

second amended counterclaim alleged that the City: violated Lozman’s Petition

Clause rights by filing the eviction action in retaliation for Lozman’s initiation of a

separate suit against the City (the “sunshine action”) (Count I); violated Lozman’s

Free Speech Clause rights by filing the eviction action in retaliation for Lozman

speaking at public meetings (Count II); and violated Federal and Florida Fair

Housing Acts (Counts III and IV). Count II may be interpreted as alleging that the

City violated Lozman’s Free Speech Clause rights by removing him from various

city council meetings and by arresting him during a meeting.

      In March 2007, a Florida jury returned a verdict in favor of Lozman, finding

that Lozman’s protected speech was a substantial or motivating factor in the City’s

decision to terminate his lease. The state court issued a Final Order Denying

Eviction. The state court had severed the eviction issue from any other issue, and

thus, the Final Order Denying Eviction was entered before the counterclaims were

resolved.

      In December 2007, Lozman filed a third amended counterclaim. The third

amended counterclaim contained two causes of action: breach of the marina


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agreement and violation of Florida’s Strategic Lawsuits Against Public Participation

(“SLAPP”) statute, which bars state entities from filing actions against individuals

in retaliation for constitutionally protected activity. On January 14, 2008, although

the third amended counterclaim had by that time been filed, the state court dismissed

the second amended counterclaim without prejudice based upon an agreement

between counsel.

      On February 8, 2008, Lozman filed his initial federal complaint in the current

case, alleging deprivation of his Constitutional rights, retaliation, harassment, and

false arrest by the City and various city officials (the “Individual Defendants”)

(collectively “Defendants”). In December 2008, the federal district court stayed

proceedings pending resolution of the state court eviction action.

      In July 2008, Lozman filed a fourth amended counterclaim in state court.

The fourth amended counterclaim contained the same causes of action as the third

amended counterclaim: breach of the marina agreement and retaliation in violation

of Florida’s SLAPP statute. The third and fourth amended counterclaims did not

repeat the causes of action based on violations of the First Amendment, as alleged in

Counts I and II of the second amended counterclaim.

      In August 2010, the state court entered a Stipulation and Order for Dismissal

of Counterclaim with Prejudice, which dismissed “the entire case, including the


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Counter-claim . . . .” In November 2010, Lozman moved to reopen his federal case

and attached a proposed amended complaint, which contained the causes of action

Lozman believed remained viable after the conclusion of the state court eviction

action. The amended federal complaint alleges that during a closed meeting on

June 28, 2006, the Defendants formulated an official policy to harass Lozman as

retaliation for bringing his sunshine action against the City and for publicly

opposing the city council’s redevelopment efforts. Specifically, Lozman alleges

the Defendants violated his rights by: (a) attempting to coerce Lozman into

dismissing his sunshine action; (b) attempting to censor Lozman from speaking out

on issues of redevelopment and corruption; (c) hiring a private investigator to follow

Lozman; (d) arresting Lozman during a November 15, 2006 meeting; (e) publicly

stating that Lozman had no First Amendment right to speak during a January 3, 2007

meeting; (f & g) removing Lozman from meetings on January 3, 2007 and May

2007; and (h) censoring Lozman’s comments at meetings from June 2007 to

November 2010 (the “non-admiralty-based claims”). The amended complaint also

alleges that the City retaliated against him by filing an in rem action in federal

district court (the “Admiralty Action”) against Lozman’s floating home for

violations of the marina rules (the “admiralty-based claim”). The district court

deemed the amended complaint filed. The City and the Individual Defendants


                                           5
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moved to dismiss the complaint on various grounds, including Rooker-Feldman, res

judicata, and collateral estoppel.

       In May 2011, the district court dismissed all of Lozman’s

non-admiralty-based claims on the Rooker-Feldman doctrine and res judicata

principles, based on the state eviction action. The district court reserved ruling on

the admiralty-based claim because the Admiralty Action was ongoing in federal

court. In August 2011, we affirmed the City’s ability to foreclose on Lozman’s

floating home and concluded that Lozman had failed to show that the Admiralty

Action was retaliatory. City of Riviera Beach v. That Certain Unnamed Gray,

Two-Story Vessel Approximately Fifty-Seven Feet in Length, 649 F.3d 1259, 1262

(11th Cir. 2011), rev’d 133 S. Ct. 735 (2013). In October 2011, the district court

relied on our opinion to dismiss Lozman’s admiralty-based claim on collateral

estoppel grounds and entered an Order of Final Dismissal with Prejudice and

Close-Out. Lozman now appeals the dismissal of his amended complaint.

                                         DISCUSSION

I.      Rooker-Feldman Doctrine2

       2
           Although this appeal is before us on a motion to dismiss, we may consider matters
outside the complaint because this is a factual attack on the complaint for lack of subject matter
jurisdiction. See Carmichael v. Kellogg, Brown & Root Serv., 572 F.3d 1271, 1279 (11th Cir.
2009) (“[W]here a defendant raises a factual attack on subject matter jurisdiction, the district court
may consider extrinsic evidence such as deposition testimony and affidavits.”).



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      Appellant argues that the Rooker-Feldman doctrine does not deprive the

lower federal courts of subject matter jurisdiction over his amended complaint

because he commenced his federal action before the state court issued judgment and

he is not a state court loser complaining of injuries resulting from a state judgment.

The Defendants argue that the Rooker-Feldman doctrine bars subject matter

jurisdiction here because the federal action was commenced after the state court

proceedings ended and involves essentially the same claims as the state eviction

action.

      The Rooker-Feldman doctrine states that federal district courts have “no

authority to review final judgments of a state court . . . .” Nicholson v. Shafe, 558

F.3d 1266, 1271 (11th Cir. 2009) (quoting Feldman, 460 U.S. at 482); see Casale v.

Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009) (per curiam) (“The Rooker-Feldman

doctrine makes clear that federal district courts cannot review state court final

judgments because that task is reserved for state appellate courts or, as a last resort,

the United States Supreme Court.”).

      The Supreme Court has reiterated that the scope of the doctrine is narrow and

is “confined to cases of the kind from which the doctrine acquired its name: cases

brought by state-court losers complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced and inviting



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district court review and rejection of those judgments.” Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). “We determine the

applicability of Rooker-Feldman by ‘adhering to the language in Exxon Mobil

delineating the boundaries of the Rooker-Feldman doctrine.’” Vasquez v. YII

Shipping Co., 692 F.3d 1192, 1196 n.1 (11th Cir. 2012) (brackets deleted) (quoting

Nicholson, 558 F.3d at 1274).

       Here, Lozman commenced his federal action on February 8, 2008, when he

filed his complaint in federal court.3 Thus, the Rooker-Feldman doctrine will apply

only if state court proceedings ended before February 8, 2008. See Nicholson, 558

F.3d at 1274 (finding Rooker-Feldman did not apply when appellants “commenced

the federal district court action before the end of state proceedings”). The City

argues that the Rooker-Feldman doctrine applies because state court proceedings

ended, at least to the First Amendment claims raised in the second amended

counterclaim, on January 14, 2008, twenty-five days prior to Lozman filing his
       3
           In Nicholson, we relied on the date the plaintiff filed his federal complaint to calculate
when federal proceedings commenced. 558 F.3d at 1276. The Individual Defendants argue the
applicable date for when a federal action is commenced is the date the amended federal complaint
is filed. Such a rule, however, would conflict with our decision in Nicholson, where we noted that
based on Exxon Mobil, “the Rooker-Feldman doctrine cannot spring into action and vanquish
properly invoked subject matter jurisdiction in federal court . . . .” 558 F.3d at 1279 n.13 (quoting
Exxon Mobil, 544 U.S. at 294). Accordingly, if a federal court has properly invoked subject
matter jurisdiction at the time of the initial federal complaint, the Rooker-Feldman doctrine cannot
spring into action and eliminate jurisdiction merely because an amended complaint is filed. Thus,
the Rooker-Feldman analysis here depends on whether there is properly invoked jurisdiction at the
time of Appellant’s initial federal complaint.



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initial federal complaint, when the state court dismissed Lozman’s second amended

counterclaim without prejudice. According to the City, the dismissal without

prejudice of the second amended counterclaim finally resolved the First Amendment

claims because Lozman did not re-plead those claims in state court.

       In Nicholson, we noted that state court proceedings end for Rooker-Feldman

purposes in three scenarios: “(1) when the highest state court in which review is

available has affirmed the judgment below and nothing is left to be resolved, (2) if

the state action has reached a point where neither party seeks further action, and (3)

if the state court proceedings have finally resolved all the federal questions in the

litigation, but state law or purely factual questions (whether great or small) remain to

be litigated.” See Nicholson, 558 F.3d at 1275 (quoting Federacion de Maestros de

P.R. v. Junta de Relaciones del Trabajo de P.R., 410 F.3d 17, 25 (1st Cir. 2005))

(internal quotations omitted).

      The third scenario is based on a hypothetical federal action described in

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989). See Federacion, 410 F.3d at 25. In

ASARCO, a state’s highest court issued declaratory judgment invalidating a state

statute but remanded the case for the trial court to determine whether the plaintiffs

were entitled to any further relief. 490 U.S. at 610. The defendants successfully

petitioned for certiorari and the U.S. Supreme Court reviewed whether the state’s


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highest court was correct in concluding that the state statute was inconsistent with

federal law. Id. at 625. In deciding whether it had jurisdiction, the Supreme Court

rejected the argument that the state court defendants should have pursued their

certiorari petition as a new action in federal district court. Id. at 622B23. The

Court explained that a federal district court would have lacked jurisdiction under

Rooker-Feldman to decide whether the state court’s decision was in error. Id. at

623; see Exxon Mobil, 544 U.S. at 287 n.2 (noting that the hypothetical district court

action described in ASARCO was consistent with the court’s limited interpretation

of Rooker-Feldman).

       Here, the state court’s stipulated dismissal without prejudice and with leave to

amend cannot reasonably be interpreted as “finally resolving” the First Amendment

claims raised in the second amended counterclaim. 4 Unlike in ASARCO, where

the highest state court had entered final judgment, the state court here had not issued

any decision on the First Amendment claims raised in the second amended

counterclaim. ASARCO, 490 U.S. at 611B12. A voluntary dismissal without

       4
           The City argues that when the dismissal without prejudice is considered in conjunction
with the Final Order Denying Eviction, the dismissal of the second amended counterclaim finally
resolved the issue of whether Lozman could recover monetary damages as a result of the
retaliatory eviction. Assuming this is a correct interpretation of the state court proceedings, the
Final Order Denying Eviction is not relevant to Lozman’s First Amendment claims that are based
on conduct other than the eviction, which are the only type of claims raised in the federal amended
complaint.



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prejudice does not prevent Lozman from re-pleading the First Amendment claims in

state court. This is true even though the dismissal order granted Lozman fifteen

days to amend and Lozman did not re-plead the First Amendment claims within this

time frame. See Sekot Labs., Inc. v. Gleason, 585 So. 2d 286, 287 (Fla. Dist. Ct.

App. 1990) (rejecting argument that order granting twenty days leave to amend had

automatically become a dismissal with prejudice upon expiration of the time

allowed); Neu v. Turgel, 480 So. 2d 216, 217 (Fla. Dist. Ct. App. 1985) (noting that

“[o]nce a court has dismissed a complaint with leave to amend, it cannot

subsequently dismiss with prejudice for failure to timely amend unless” separate

notice is given or the order specifies that no notice will be given). Thus, regardless

of the fact that Lozman did not re-plead the First Amendment claims in state court

before initiating the federal action and regardless of whether state law eventually

converts the dismissal without prejudice into a final determination, at the time of the

commencement of the federal action, the state court had not yet finally resolved the

First Amendment issues.

       We decline to expand Nicholson’s third scenario beyond situations similar to

those of ASARCO or interpret Lozman’s voluntary dismissal without prejudice as

equivalent to a state court decision finally resolving the First Amendment issues. 5

       5
          We need not decide whether there are other types of state court decisions that finally
(continued . . .)

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Expanding the Rooker-Feldman doctrine to encompass the factual scenario here is

contrary to the warning against expansion made in Exxon Mobil. See 544 U.S. at

284 (confining the doctrine to cases of the kind from which the doctrine acquired its

name). Thus, state court proceedings as to the First Amendment issues raised in the

second amended counterclaim did not end prior to the commencement of the federal

action, and Rooker-Feldman does not divest the court of jurisdiction, regardless of

whether the claims raised in state court are identical to those raised in federal court.

Id. at 292 (noting “the pendency of an action in the state court is no bar to

proceedings concerning the same matter in the Federal court”). Because

Rooker-Feldman does not apply, we need not address Defendant’s arguments as to

whether any of the claims asserted in the federal amended complaint are

“inextricably intertwined” with a state court judgment under Casale v. Tillman, 558

F.3d 1258, 1260 (11th Cir. 2009).




resolve federal issues for Rooker-Feldman purposes but lack the finality of the state court
judgment described in ASARCO (i.e. a final judgment under 28 U.S.C. § 1257 by the state’s
highest court). See Nicholson, 558 F.3d at 1275 n.9 (citing Federacion, 410 F.3d at 24) (noting
that state proceedings may have ended for Rooker-Feldman purposes even if § 1257 jurisdiction is
not available). Regardless of whether there may be other types of state judgments and decisions
that fall short of § 1257 but, nevertheless, finally resolve federal issues sufficient to end state court
proceedings, the stipulated dismissal without prejudice under the facts presented here is not such a
decision.



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II.    Res Judicata

       Appellant argues that Florida’s res judicata principles do not bar his federal

action here because the causes of action raised in the state eviction action are not

identical to the causes of action raised in the federal amended complaint.

Defendants argue that the state court’s eviction action has a preclusive effect on all

of Lozman’s claims currently before the court.

       Under Florida law, 6 res judicata applies where there is: “(1) identity of the

thing sued for; (2) identity of the cause of action; (3) identity of the persons and

parties to the action; (4) identity of the quality [or capacity] of the persons for or

against whom the claim is made”; and (5) the original claim was disposed on the

merits. Andela v. Univ. of Miami, 692 F. Supp. 2d 1356, 1371 (S.D. Fla. 2010)

(applying Florida law); Heney v. Windsor Corp., 777 F. Supp. 1575, 1577 (M.D.

Fla. 1991) (applying Florida law). “For res judicata or collateral estoppel to apply,

there must also exist in the prior litigation a ‘clear-cut former adjudication’ on the

merits.” State St. Bank & Trust Co. v. Badra, 765 So. 2d 251, 254 (Fla. Dist. Ct.

App. 2000) (quoting Suniland Assocs. v. Wilbenka, Inc., 656 So. 2d 1356, 1358
       6
           The Defendants concede that the district court erred in applying federal, instead of
Florida, res judicata law. “In considering whether to give preclusive effect to state-court
judgments under res judicata or collateral estoppel, the federal court applies the rendering state’s
law of preclusion.” Cmty. State Bank v. Strong, 651 F.3d 1241, 1263 (11th Cir. 2011) (citations
omitted); see 28 U.S.C. § 1738. Because we are interpreting a Florida judgment, we apply
Florida preclusion law.



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(Fla. Dist. Ct. App. 1995)). Identity of the cause of action is a question of “whether

the facts or evidence necessary to maintain the suit are the same in both actions.”

Tyson v. Viacom, Inc., 890 So. 2d 1205, 1209 (Fla. Dist. Ct. App. 2005) (en banc

and per curiam).

       Defendants do not argue that the causes of action raised in the third and fourth

amended counterclaims are identical to those raised in the federal amended

complaint. Instead, whether res judicata applies depends on whether the causes of

action alleged in the second amended counterclaim are identical to those raised in

the federal amended complaint and whether the claims alleged in the second

amended counterclaim were disposed of on the merits.7 See Heney, 777 F. Supp. at

1577 (listing elements of Florida res judicata law).

       In the amended federal complaint, Lozman brings 42 U.S.C. § 1983

deprivation, harassment, and retaliation claims and a common law false arrest claim.

Lozman alleges violations of his First (free speech and right to petition), Fourth

(unreasonable seizures), and Fourteenth (substantive and procedural due process
       7
            Res judicata applies only when the parties to the action, or their privies, are identical in
the prior and subsequent action. Huff Groves Trust v. Caulkins Indiantown Citrus Co., 810 So.
2d 1049, 1050 (Fla. Dist. Ct. App. 2002). Here, the Individual Defendants were not a party to the
state eviction action, and thus, they cannot rely on res judicata unless they are in privity with the
City. Generally, a government official sued in his or her official capacity is considered to be in
privity with the government, but a government official sued in his or her individual capacity is not.
See 18 Moore’s Federal Practice - Civil § 131.40(2)(a). We need not discuss Florida law on this
issue, as res judicata does not apply to any of the claims asserted here.



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and equal protection) Amendment rights. Specifically, Lozman alleges his rights

were violated by the Defendants’ conduct of: (a) attempting to coerce Lozman into

dismissing his sunshine action; (b) attempting to censor Lozman on issues of

redevelopment and corruption; (c) hiring a private investigator to follow Lozman;

(d) arresting Lozman for disorderly conduct during a November 15, 2006 meeting;

(e) publicly stating that Lozman had no First Amendment right to speak during a

January 3, 2007 meeting; (f) removing Lozman from a meeting on January 3, 2007;

(g) removing Lozman from a meeting in May 2007; (h) censoring Lozman’s

comments at meetings from June 2007 to November 2010; and (i) filing a federal

admiralty action against Lozman’s floating home. 8

       Lozman’s second amended counterclaim filed in the state eviction action

alleged that the City violated his free speech rights by preventing him from speaking

at various city council meetings and arresting Lozman because of his speech. 9 The


       8
           The district court dismissed the admiralty-based claim (i.e. filing the Admiralty Action
was retaliatory) based on collateral estoppel and not res judicata. Defendants, however, argue
that all claims, including the admiralty-based claim, are barred by res judicata. Accordingly, we
address the admiralty-based claim here, as well.
       9
          Although this matter is before the court on a motion to dismiss, we may take judicial
notice of the court documents from the state eviction action. See Fed. R. Evid. 201(b); Long v.
Slaton, 508 F.3d 576, 578 n.3 (11th Cir. 2007) (citation omitted) (noting the court is not always
limited to the four corners of the complaint at the Rule 12(b)(6) stage and taking judicial notice of
undisputed facts contained in a report from a state agency); Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007) (noting that “courts must consider the complaint in its entirety, as
well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss,
(continued . . .)

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second amended counterclaim does not allege that the Defendants attempted to

coerce Lozman into dismissing the sunshine action, hired a private investigator,

publicly stated that Lozman had no First Amendment right to speak at a city council

meeting, or filed a retaliatory Admiralty Action. Because these causes are action

are based on conduct that is distinct from the conduct alleged in the state eviction

action (arrest and removal from meetings), the causes of action are not identical.

See Tyson, 890 So. 2d at 1208B09 (stating that claims based on different facts and

evidence are not identical). Additionally, the second amended counterclaim is

dated January 8, 2007, and did not allege conduct that occurred after this date. In

contrast, the federal amended complaint alleges that the Defendants caused Lozman

to be physically removed from a meeting in May 2007 and attempted to censor

Lozman from June 2007 to November 2010. The federal causes of action based on

conduct occurring from May 2007 to November 2010 will involve different facts

and evidence than the causes of action alleged in the eviction action based on prior

meetings, and thus, the causes of action are not identical. In sum, the federal claims

based on the conduct described in paragraph 26 subsections (a), (c), (e), (g), (h) and

(i), as listed above, are not precluded based on the state eviction action.



in particular, documents incorporated into the complaint by reference, and matters of which a court
may take judicial notice.”).


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      The remaining causes of action asserted in the federal amended complaint

(subsections (b), (d), and (f)) are identical to those alleged in Count II of the second

amended counterclaim. Specifically, the causes of action based on the Defendants’

attempt to censor Lozman during city council meetings, the arrest of Lozman at a

city council meeting, and the removal of Lozman from meetings during 2006 and

2007 were alleged in the state eviction action and in the federal amended complaint.

Thus, whether res judicata bars these claims depends on whether the state court

issued an adjudication on the merits of the claims asserted in the second amended

counterclaim.

      Although the Defendants bear the burden to demonstrate that res judicata

applies and that there was a clear-cut adjudication on the merits in the prior suit, the

Defendants did not provide legal or factual support, either before the district court or

in its brief before this court, to demonstrate that claims alleged in the second

amended counterclaim were incorporated into and addressed by the state court’s

Order for Dismissal of Counterclaim with Prejudice. At oral argument, the City

suggested that the state court’s final judgment dismissing the entire action, including

Lozman’s “Counter-claim,” necessarily converted the prior dismissal without

prejudice of the second amended counterclaim into a dismissal on the merits.

      Although this issues has not been addressed directly by Florida courts, the


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case of Tyson v. Viacom is instructive. 890 So. 2d at 1205. In Tyson, the plaintiff

filed suit in a Florida state court alleging breach of contract and a whistle-blower

claim. Id. at 1207B08. The plaintiff voluntarily dismissed without prejudice his

breach of contract claim and continued litigation on the whistle-blower claim. Id.

at 1208. The state court eventually entered final judgment against the plaintiff on

the whistle-blower claim. Id. The plaintiff then filed a second suit in state court,

alleging an identical breach of contract claim and a fraud in the inducement claim.

Id. A divided Florida panel found that the breach of contract and fraud in the

inducement claim were barred by res judicata based on the final judgment in the first

suit. Tyson v. Viacom, Inc., 2003 Fla. App. LEXIS 15808, at *16B17 (Fla. Dist. Ct.

App. Oct. 22, 2003) (opinion withdrawn). The panel noted that although the breach

of contract claim was not independently adjudicated in the prior suit, the final

judgment on the whistle-blower claim “necessarily disposed of the entire cause of

action” based on a combination of res judicata principles and the rule against

splitting a cause of action. Id.

      Florida’s Fourth District Court of Appeals granted a motion for rehearing en

banc, reversed the first panel, and substituted a new opinion. Tyson, 890 So. 2d at

1207. The en banc panel stated that because the final judgment in the first suit

addressed only the whistle-blower claim, it had no res judicata effect on the breach


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of contract claim. Id. at 1210. The court noted that because the breach of contract

claim was voluntarily dismissed without prejudice and was not included in the

judgment, res judicata could not, by definition, apply. Id. The court also rejected

an expansive definition of a “cause of action” and instead noted that allegations of

separate, wrongful acts give rise to separate causes of action, even if the wrongful

acts occurred within the context of a larger set of facts or relationship. Id. at

1212B13.

      If the City were correct that a final judgment on one claim necessarily acts as

an adjudication on the merits of all claims previously raised in a case, even if such

claims were previously dismissed without prejudice and not re-pled, then the en

banc panel in Tyson would have found an adjudication of the breach of contract

claim and reached the opposite result. Moreover, to the extent the City is arguing

that the First Amendment claims raised in the second amended counterclaim are

barred here because those claims and the retaliatory eviction claim fall within a

single “cause of action,” this expansive view of a cause of action was explicitly

rejected in Tyson. See 890 So. 2d at 1212 (noting that without a limited res judicata

approach, “a slippery slope could soon bar a range of suits related only by the

broadest of contexts”). The fact that all of Lozman’s claims fall within a broad set

of facts related to his interaction with the City does not prevent him from bringing


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separate suits based on separate allegations of wrongful conduct. See id.

      Furthermore, Florida courts view the issue of whether a judgment acted as an

adjudication on claims, including previously dismissed claims, as a question of fact.

See Hicks v. Hoagland, 953 So. 2d 695, 698 (Fla. Dist. Ct. App. 2007) (finding res

judicata could not apply at summary judgment stage when record was not clear as to

whether prior state court judgment intended to adjudicate certain claims that may

have been dismissed prior to trial). “[T]he party claiming the benefit of the former

adjudication has the burden of establishing, with sufficient certainty by the record or

by extrinsic evidence, that the matter was formerly adjudicated.” State St. Bank &

Trust, 765 So. 2d at 254 (citation omitted); Hicks, 953 So. 2d at 698 (“For res

judicata to apply, there must exist in the prior litigation a clear-cut former

adjudication on the merits.”) (citation and internal quotation marks omitted).

      Based on the current factual record before the court, we cannot conclude that

the First Amendment claims based on the Defendants’ conduct of censoring

Lozman, removing him from meetings, and arresting him were subject to a final

adjudication on the merits in the eviction action. The final judgment in the eviction

action states that the entire case is dismissed with prejudice, including Lozman’s

“Counter-claim.” The judgment does not specify which “Counter-claim” was

dismissed, but at the time of the dismissal, the live counterclaim was the fourth


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amended counterclaim. Thus, it is not clear whether the stipulated judgment

intended to act as an adjudication on the merits as to all counterclaims alleged during

the litigation, regardless if they were still live before the court, or to the claims

alleged in the fourth amended counterclaim only.

      Additionally, although Count II of the second amended counterclaim may be

interpreted as alleging a deprivation claim based on conduct other than the eviction,

the record suggests that the parties did not interpret the counterclaim in this manner

during the eviction action. This adds to the ambiguity as to whether the judgment in

the state court eviction action applied to the First Amendment claims based on

conduct other than the eviction. Thus, because Defendants failed to demonstrate

that there was a clear-cut adjudication on the First Amendment claims for conduct

other than the eviction, we cannot affirm the dismissal of the federal amended

complaint on this ground.

      Florida’s transaction test also does not bar the causes of action raised in the

federal amended complaint. Florida’s transaction test states that res judicata will

apply to those causes of action that were actually litigated, as well as “every other

matter which the parties might have litigated . . . within the issues as framed by the

pleadings or as incident to or essentially connected with the subject matter of the

first litigation.” Zikofsky v. Mktg. 10, Inc., 904 So. 2d 520, 523 (Fla. Dist. Ct. App.


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2005) (citation, quotation, and brackets deleted). Despite the broad “every other

matter” language, the transaction test is “narrow” and extends to “essentially

connected claims that a defendant in a former action failed to raise as a defense.”

Id. (internal quotations omitted).

       Here, the subject matter of the state eviction action was the legality of the

state’s attempt to evict Lozman from the marina. The § 1983 allegations in the

federal amended complaint, which are largely based on conduct occurring in city

council meetings, are not “incident to or essentially connected” with the subject

matter of whether the eviction was retaliatory. Zikofsky, 904 So. 2d at 523.

Instead, the amended complaint alleges separate acts of wrongful conduct occurring

at different times than the eviction action. Additionally, the false arrest and § 1983

causes of actions in the federal amended complaint, which are not based on the

retaliatory eviction, would not have been a defense to the eviction because they

would not prevent an otherwise valid eviction. Thus, none of the federal causes of

action is barred by res judicata under Florida’s transaction test.

III.   Collateral Estoppel

       The district court dismissed Lozman’s admiralty-based claim on collateral

estoppel grounds. Although the district court did not rely on collateral estoppel

grounds to dismiss Lozman’s non-admiralty-based claims, the Defendants argue we


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should affirm the dismissal of the non-admiralty-based claims on this alternative

ground. Defendants argue that all issues raised in the federal amended complaint,

except the admiralty-based claim, were fully litigated in the state eviction action.

Defendants also argue that all of the issues raised in the federal amended complaint,

except the false arrest claim, were fully litigated in the Admiralty Action.

              A.    State Eviction Action

       Defendants argue that all of Lozman’s non-admiralty-based claims were

“actually raised by Lozman in the State proceeding, litigated against Riviera, and

adjudicated on the merits” by the state court.

      “Collateral estoppel principles are applicable to a subsequent proceeding only

if, 1) the identical issues were presented in a prior proceeding; 2) there was a full and

fair opportunity to litigate the issues in the prior proceeding; 3) the issues in the prior

litigation were a critical and necessary part of the prior determination; 4) the parties

in the two proceedings were identical; and 5) the issues were actually litigated in the

prior proceeding.” Porter v. Saddlebrook Resorts, Inc., 679 So. 2d 1212, 1214B15

(Fla. Dist. Ct. App. 1996) (citing Dep’t of Health and Rehab. Servs. v. B.J.M., 656

So. 2d 906 (Fla. 1995)).

      “The courts have emphasized that collateral estoppel precludes relitigation of

issues actually litigated in a prior proceeding.” B.J.M., 656 So. 2d at 910 (emphasis


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in original); Seaboard Coast Line R.R. Co. v. Indus. Contracting Co., 260 So. 2d

860, 865 (Fla. Dist. Ct. App. 1972) (“It is not enough for the court to apply collateral

estoppel where the former cause involved the same issues if it cannot be shown that

such issues were clearly adjudicated.”); see also Brown v. R.J. Reynolds Tobacco

Co., 611 F.3d 1324, 1334 (11th Cir. 2010) (noting Florida courts enforce the

“actually adjudicated” requirement with rigor). As with res judicata, collateral

estoppel is an affirmative defense, and the party asserting it “bears the burden to

show that such an issue was formerly determined with sufficient certainty.”

Freehling v. MGIC Financial Corp., 437 So. 2d 191, 193 (Fla. Dist. Ct. App. 1983).

      The Defendants have not specified what issues they believe are identical in

the federal amended complaint and in the eviction action. Instead, the Defendants

seem to merely re-state their res judicata argument as a collateral estoppel argument.

Under Florida law, however, collateral estoppel is not res judicata by another name,

but applies “where the two causes of action are different” but issues B “that is to say

points and questions” B are common to both actions. Gordon v. Gordon, 59 So. 2d

40, 44 (Fla. 1952); Zikofsky, 904 So. 2d at 525 (noting the two doctrines are related

but different).

      Even if there were identity of issues raised in the state court eviction action

and the federal amended complaint, the City has not shown the issues raised in the


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state eviction action were “fully litigated.” Andela, 692 F. Supp. 2d at 1372; see

Seaboard, 260 So. 2d at 864B65 (noting the burden is on the party asserting collateral

estoppel to show issues clearly adjudicated). Although a stipulated dismissal

qualifies as a dismissal on the merits for res judicata purposes, Florida courts do not

seem to recognize issued resolved with a judgment entered into by consent or

stipulation as being actually or fully litigated for collateral estoppel purposes. See

JFK Med. Ctr. v. Price, 647 So. 2d 833, 834 n.1 (Fla. 1994) (“Moreover, a judgment

by consent, though it terminates the claim to which it refers, is not an actual

adjudication.”) (citing Restatement (Second) of Judgments § 51); Hanover Ins. Co.

v. Marriott Int’l, Inc., 685 So. 2d 894, 895 (Fla. Dist. Ct. App. 1996) (finding

“Agreed Order Granting Partial Summary Judgment” insufficient for collateral

estoppel because the issues were never “actually litigated” and also not a final

judgment); Restatement (Second) of Judgments § 27, cmt. e (“In the case of a

judgment entered by confession, consent, or default, none of the issues is actually

litigated.”).

       Here, the claims raised in the state court eviction action were ended pursuant

to a dismissal stipulated to by the parties. Any issues, therefore, were ended by

consent and were not fully and actually litigated. Ambiguity as to whether the

stipulated Order for Dismissal of Counterclaim with Prejudice intended to actually


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litigate any issues, whether it applied to the First Amendment claims raised in the

second amended counterclaim, and whether it intended to apply to claims not based

on the eviction also counsels against the application of collateral estoppel here. See

Freehling, 437 So. 2d at 193 (noting it must be shown that an issue was “formerly

determined with sufficient certainty”).

             B.    Federal Admiralty Action

      Although Lozman stated in his brief that he was not challenging the dismissal

of his admiralty-based claim while the Admiralty Action was still pending before the

Supreme Court, he indicated that the dismissal would not be valid if the Supreme

Court reversed or vacated our decision. We interpret Lozman’s brief as preserving

the ability to challenge the dismissal of his admiralty-based claim not on the merits

but on the limited issue of the effect of a reversal by the Supreme Court. Because

the Supreme Court reversed our decision in the Admiralty Action, Lozman v. City of

Riviera Beach, 133 S. Ct. 735, 746 (2013), we reach the issue of whether Lozman’s

admiralty-based claim is collaterally estopped. Defendants argue that our decision

in the Admiralty Action acts to collaterally estop not only the admiralty-based claim,

but also all other claims in the amended federal complaint, except the false arrest

claim, and we should affirm the dismissal of the complaint on this alternative

ground.


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       Federal 10 collateral estoppel law applies when, inter alia, the issue at stake is

identical to the one involved in the prior proceeding and the issue was actually

litigated and decided in the prior proceeding. Pleming v. Universal-Rundle Corp.,

142 F.3d 1354, 1359 (11th Cir. 1998). Additionally, the issue must have been

“actually litigated and resolved in a valid court determination essential to the prior

judgment . . . .” Taylor v. Sturgell, 553 U.S. 880, 892 (2008).

       Because the Supreme Court reversed our decision and concluded that the

district court lacked subject matter jurisdiction over the case, the issues raised in the

Admiralty Action have not been resolved in a valid or final judgment from a court of

competent jurisdiction. Accordingly, the Admiralty Action has no preclusive effect

on any of the issues raised here.

                                      CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s dismissal of

Appellant’s amended complaint and remand for further proceedings not inconsistent

with this opinion.




       10
           Federal collateral estoppel principles apply here because the court is reviewing the
effect of a federal court decision. See CSX Transp., Inc. v. BMWE, 327 F.3d 1309, 1316 (11th
Cir. 2003).


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