                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15362         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        MAY 23, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                                D.C. Docket No. 5:10-cv-02090-CLS

MARK E. BENNICK,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                               versus

THE BOEING COMPANY,
GRACE THOMPSON,
HR Boeing,

llllllllllllllllllllllllllllllllllllllll                           Defendants-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Alabama
                                  ________________________

                                           (May 23, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Mark Bennick, proceeding pro se, appeals the district court’s order

dismissing his complaint against Boeing and Grace Thompson in a diversity action

brought pursuant to 28 U.S.C. § 1332. On appeal, Bennick argues that the district

court erred in concluding that his defamation claim against Boeing was barred by

the doctrine of res judicata. He also asserts that the district court abused its

discretion by dismissing Thompson as a defendant under Fed.R.Civ.P. 21. For the

reasons stated below, we affirm.

                                           I.

      Bennick filed a pro se complaint, naming Boeing and Thompson, a Boeing

human resource employee, as defendants. His complaint raised a claim of

defamation per se under Alabama law. Bennick was a former Boeing employee.

After his employment with Boeing ended, he went to work for Teledyne Brown

Engineering (“TBE”) as an engineer. As part of his duties with TBE, he was

granted a security clearance to work at Boeing’s Jetplex site. However, shortly

after Bennick started working at the Jetplex, Thompson told TBE managers that

Bennick had a criminal history involving drugs and alcohol. Bennick’s complaint

asserted that he had no such criminal history and that Thompson’s statements

about him were false and defamatory.




                                           2
      The defendants moved to dismiss Bennick’s complaint on the ground that

his defamation claim was barred by the doctrine of res judicata. The defendants

explained that Bennick had filed two previous lawsuits related to his termination

from Boeing and his subsequent termination from TBE. The defendants observed

that both of Bennick’s earlier complaints had raised claims concerning

Thompson’s statements about Bennick’s substance abuse problems. Therefore,

the defendants argued, Bennick’s defamation claim was barred by res judicata.

      Court records reveal that Bennick filed his first lawsuit against Boeing in

February 2009. Bennick’s first complaint raised claims of “wrongful termination,

violation of civil rights, [and] unethical business conduct.” The complaint

explained that Bennick had worked as an engineer for Boeing, but had been fired

after he allegedly failed an alcohol test. Bennick then obtained employment with

TBE, but lost that job after Thompson falsely informed TBE that

Bennick had been fired by Boeing for violating the company’s drug-free

workplace policy. The district court dismissed Bennick’s first complaint for

failure to state a claim on which relief could be granted.

      Bennick filed his second lawsuit against Boeing in March 2010. His second

complaint was based on the same set of facts as his first complaint. The district




                                          3
court dismissed Bennick’s second complaint after concluding that it was barred by

res judicata.

      In the present case, the district court issued a show cause order directing

Bennick to explain why his case should not be dismissed for lack of subject matter

jurisdiction. The court observed that the only possible basis for its jurisdiction

was diversity of citizenship because Bennick’s complaint only raised a state-law

claim for defamation. The court pointed out, however, that Bennick had not

alleged that he and Thompson were citizens of different states.

      In his response to the show cause order, Bennick asserted that Thompson’s

citizenship was “not a concern” because Boeing had taken full responsibility for

all of Thompson’s actions. He moved to “have all mention of Grace Thompson

. . . be synonymous with Boeing. From this point forward, Boeing assumes

full/sole responsibility as the defendant.” Bennick noted that there was diversity of

citizenship between himself and Boeing because Boeing’s corporate headquarters

was located in Chicago, Illinois.

      The district court dismissed Bennick’s complaint. As an initial matter, the

court observed that Bennick had not shown that he and Thompson were citizens of

different states. Rather than dismiss the complaint for lack of subject matter

jurisdiction, however, the district court construed Bennick’s response to the show


                                          4
cause order as a motion under Fed.R.Civ.P. 21 to drop Thompson from the case as

a misjoined defendant. The court granted the motion and dismissed Thompson as

a defendant.

      The district court also concluded that Bennick’s defamation claim against

Boeing was barred by res judicata. The court observed that Bennick’s earlier

lawsuits against Boeing had involved the same parties, and had resulted in final

judgments on the merits, rendered by courts of competent jurisdiction. Moreover,

the district court concluded that all three cases involved the same nucleus of

operative facts—the statements that Thompson had made regarding Bennick’s

alleged criminal history and substance abuse problems. Because all four elements

of res judicata were present, the district court dismissed Bennick’s complaint.

                                           II.

      Whether a plaintiff’s claims are barred by res judicata is a legal question

that we review de novo. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th

Cir. 1999). The doctrine of res judicata, or claim preclusion, prohibits a party

from filing claims that he raised or could have raised in an earlier case. Id. By

requiring a party to raise all of his claims in a single case, res judicata “protects [a

party’s] adversaries from the expense and vexation attending multiple lawsuits,

conserves judicial resources, and fosters reliance on judicial action by minimizing


                                           5
the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147,

153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979).

      Res judicata applies if four elements are present: (1) there was a final

judgment on the merits in the earlier case; (2) the judgment was rendered by a

court of competent jurisdiction; (3) “the parties, or those in privity with them, are

identical in both suits;” and (4) “the same cause of action is involved in both

cases.” Ragsdale, 193 F.3d at 1238. Two cases involve the same cause of action

if they arise out of the same nucleus of operative fact. Id. at 1239. “Res judicata

applies not only to the precise legal theory presented in the previous litigation, but

to all legal theories and claims arising out of” the same set of facts. Manning v.

City of Auburn, 953 F.2d 1355, 1358-59 (11th Cir. 1992) (quotation omitted).

      In this case, the district court correctly concluded that Bennick’s defamation

claim against Boeing was barred by res judicata. Although Bennick’s complaints

set forth different legal theories, all three complaints were based on the same

nucleus of operative fact—that Thompson made false assertions that Bennick had

a criminal history involving the misuse of drugs and alcohol. Thus, all three

complaints involved the same “cause of action” for purposes of res judicata. See

Ragsdale, 193 F.3d at 1239; Manning, 953 F.2d at 1358-59.




                                          6
        The other three elements of res judicata also are present here. Both of

Bennick’s prior cases ended in a final judgment on the merits rendered by a court

of competent jurisdiction. In addition, the parties to the present case, Bennick and

Boeing, are the same as the parties in Bennick’s earlier cases. Although

Thompson was not a defendant in Bennick’s other cases, that fact is of no

consequence as to whether his claim against Boeing is barred by res judicata.

Bennick has not shown that Thompson’s absence from his earlier lawsuits

impaired his ability to litigate his claims against Boeing in those cases. Because

all four elements of res judicata are present here, the district court properly

dismissed Bennick’s defamation claim against Boeing. See Ragsdale, 193 F.3d at

1238.

                                          III.

        A district court’s decision to dismiss a party from a lawsuit under

Fed.R.Civ.P. 21 is reviewed for an abuse of discretion. See Fritz v. American

Home Shield Corp., 751 F.2d 1152, 1154 (11th Cir. 1985) (noting that “the district

court generally has discretion to determine whether to allow dropping of parties”).

Rule 21 provides that “the court may at any time, on just terms, add or drop a

party.” “Courts have employed Rule 21 to preserve diversity jurisdiction by




                                           7
dropping a nondiverse party not indispensable to the action.” Fritz, 751 F.2d at

1154.

        Here, the district court did not abuse its discretion by dismissing Thompson

as a defendant. In his response to the district court’s show cause order, Bennick

moved to “have all mention of Grace Thompson . . . be synonymous with Boeing.

From this point forward, Boeing assumes full/sole responsibility as the

defendant.” It was reasonable for the district court to construe this statement as a

motion to dismiss Thompson from the case under Fed.R.Civ.P. 21.

        Moreover, had the district court not dropped Thompson as a defendant, it

would have been obligated to dismiss the entire case for lack of subject matter

jurisdiction because Bennick had not established that he and Thompson were

citizens of different states. See Underwriters at Lloyd’s, London v.

Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010) (“For federal diversity

jurisdiction to attach, all parties must be completely diverse . . .”). Although

Bennick now contends that Thompson is a citizen of Tennessee, he did not make

any such assertion in his complaint or the other pleadings that he filed in the

district court. We conclude that the district court committed no abuse of discretion

by dismissing Thompson as a defendant under Rule 21. See Fritz, 751 F.2d at

1154.


                                          8
      Accordingly, after review of the record and the parties’ briefs, we affirm the

order of the district court dismissing Bennick’s complaint.

      AFFIRMED.




                                         9
