                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-14775                ELEVENTH CIRCUIT
                                                         FEBRUARY 17, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                    D. C. Docket No. 08-01008-CV-AR-S

CAROLYN BROWN,
DELOISE R. FIKES,
JAMES RUSSELL,


                                                         Plaintiffs-Appellants,

                                  versus

ONE BEACON INSURANCE COMPANY INC.,
a foreign corporation,

                                                          Defendant-Appellee.


                       ________________________

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

                            (February 17, 2009)

Before BIRCH, HULL and WILSON, Circuit Judges.
PER CURIAM:

       Carolyn Brown, James Russell, and Deloise Fikes (collectively, “Insured”),1

proceeding pro se, appeal the district court’s dismissal of their complaint for

breach of an insurance contract. They argue that the district court should have

considered the merits of their claims against One Beacon Insurance Company

(“One Beacon”) instead of dismissing their complaint as barred by the doctrine of

res judicata.

                                                I.

       We review de novo the dismissal of a complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6). Davila v. Delta Air Lines, Inc., 326 F.3d 1183,

1185 (11th Cir. 2003). We may affirm a dismissal “on any grounds supported in

the record.” See Koziara v. City of Casselberry, 392 F.3d 1302, 1306 n.2

(11th Cir. 2004).


       1
           Brown and Russell did not personally sign the complaint filed with the district court.
The parties did not raise this issue on appeal. Every pleading must be signed by either an
attorney of record or by a party personally, if the party is unrepresented. See FED . R. CIV . P.
11(a). “[T]he requirements of the rules of procedure should be liberally construed,” however,
and “‘mere technicalities’ should not stand in the way of consideration of a case on the merits.”
Torres v. Oakland Scavenger Co., 487 U.S. 312, 315, 108 S. Ct. 2405, 2408 (1988). This applies
to situations where “a litigant files papers in a fashion that is technically at variance with the
letter of a procedural rule . . . [but is nevertheless] the functional equivalent of what the rule
requires.” Id. at 316-17, 108 S.Ct. at 2408. In light of the plaintiffs’ pro se status, Brown’s
appearance before the district court in support of the complaint, and the filing of a post-judgment
motion properly signed by Brown and Russell referencing the signature dispute, we deem Brown
and Russell to have cured their failure to sign the complaint in the first instance and confirm
their status as plaintiffs - and now appellants - in the action.

                                                2
      Dismissal is appropriate if, when accepting the plaintiff’s factual allegations

as true, “the plaintiff can prove no set of facts that would support the claims in the

complaint.” Davila, 326 F.3d at 1185. “Generally, the existence of an affirmative

defense will not support a motion to dismiss.” Quiller v. Barclays

American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984), en banc reh’g,

764 F.2d 1400, 1400 (11th Cir. 1985) (per curiam) (reinstating panel opinion).

“Nevertheless, a complaint may be dismissed under Rule 12(b)(6) when its own

allegations indicate the existence of an affirmative defense, so long as the defense

clearly appears on the face of the complaint.” Id. When determining a motion to

dismiss, a court may consider the complaint, its attachments, and documents

attached to the defendant’s motion to dismiss if the attached documents are central

to the plaintiff’s claims and referred to by the plaintiff without converting the

motion to a motion for summary judgment. Brooks v. Blue Cross & Blue Shield of

Fla., Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997) (per curiam). We also review

res judicata determinations de novo. Jang v. United Techs. Corp., 206 F.3d 1147,

1149 (11th Cir. 2000). Although pro se pleadings are liberally construed, “this

leniency does not give a court license to serve as de facto counsel for a party or to

rewrite an otherwise deficient pleading in order to sustain an action. . . .” GJR

Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)



                                           3
(citations omitted).

       In a diversity case, federal courts will “give preclusive effect to the judgment

of a state court provided that two conditions are met: first, that the courts of the

state from which the judgment emerged would do so themselves; and second, that

the litigants had a full and fair opportunity to litigate their claims and the prior state

proceedings otherwise satisfied the applicable requirements of due process.”

Shields v. BellSouth Adver. & Publ’g Co., Inc., 228 F.3d 1284, 1288 (11th Cir.

2000) (internal quotation marks and citations omitted).

       “Res judicata and collateral estoppel . . . are two separate rules or sets of

rules for determining the conclusiveness of judgments.” Wheeler v. First Alabama

Bank of Birmingham, 364 So.2d 1190, 1199 (Ala. 1978). “Under Alabama law,

the essential elements of res judicata are (1) a prior judgment on the merits,

(2) rendered by a court of competent jurisdiction, (3) with substantial identity of

the parties, and (4) with the same cause of action presented in both suits.” Wesch

v. Folsom, 6 F.3d 1465, 1471 (11th Cir. 1993); see also Wheeler, 364 So.2d at

1199 (state supreme court case stating elements of res judicata). “If these elements

are present, then the former judgment is an absolute bar to any subsequent suit on

the same cause of action, including any issue which was or could have been

litigated in the prior action.” Wheeler, 364 So.2d at 1199.



                                            4
      “Collateral estoppel operates where the subsequent suit between the same

parties is not on the same cause of action.” Id. Collateral estoppel requires that:

(1) the issue be identical to one the issue involved in previous suit; (2) the issue be

actually litigated in prior action; and (3) the resolution of the issue be necessary to

the prior judgment. Id. “If these elements are present, the prior judgment is

conclusive as to those issues actually determined in the prior suit.” Id.

      “[R]es judicata is an affirmative defense. . . .” Norfolk S. Corp. v. Chevron,

U.S.A., Inc., 371 F.3d 1285, 1289 (11th Cir. 2004). The doctrine of res judicata in

conjunction with 28 U.S.C. § 1738, the Full Faith and Credit Statute, bars

relitigation of matters that were previously litigated in a prior state suit. Saboff v.

St. John’s River Water Mgmt. Dist., 200 F.3d 1356, 1359 (11th Cir. 2000). Section

1738 requires “a federal court must give to a state-court judgment the same

preclusive effect as would be given that judgment under the law of the State in

which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ.,

465 U.S. 75, 81, 104 S. Ct. 892, 896 (1984). Thus, the “relevant inquiry is whether

[Alabama’s] law of res judicata would ordinarily bar [the plaintiffs’] subsequent

federal claim[]”. Saboff, 200 F.3d at 1360.

      When the parties “consent” to the dismissal of a suit “based on a settlement

agreement . . . the principles of res judicata apply (in a somewhat modified form)



                                            5
to the matters specified in the settlement agreement, rather than the original

complaint.” Norfolk, 371 F.3d at 1288. “In determining the res judicata effect of

an order of dismissal based upon a settlement agreement, [the court] should also

attempt to effectuate the parties’ intent. The best evidence of that intent is, of

course, the settlement agreement itself.” Id. at 1289. Ultimately, Alabama law

does give judgments approving settlements conclusive and binding effect. See

A LA. C ODE § 25-5-56; see also Lawrence v. U.S. Fidelity & Guar. Co., 145 So.

577 (Ala. 1933) (holding that judgment approving settlement may be given

res judicata effect).

      Alabama uses the substantial evidence test to determine whether two causes

of action are the same for res judicata purposes. Equity Res. Mgmt., Inc. v. Vinson,

723 So.2d 634, 637 (Ala. 1998). Under this test, res judicata applies when the

same evidence substantially supports both actions. Id.

As the Supreme Court of Alabama has explained:

      it is well-settled that the principal test for comparing causes of action
      [for the application of res judicata] is whether the primary right and
      duty or wrong are the same in each action. Res judicata applies not
      only to the exact legal theories advanced in the prior case, but to all
      legal theories and claims arising out of the same nucleus of operative
      facts.

Old Republic Ins. Co. v. Lanier, 790 So.2d 922, 928 (Ala. 2000) (emphasis added)

(internal quotation marks and citations omitted).

                                            6
      Here, the Insured filed a claim in state court against One Beacon for breach

of contract. The parties mediated their claims, and in 2005, One Beacon settled

with the Insured. Subsequently, the Insured alleged to the state trial court that One

Beacon had failed to pay the full amount required by the mediation settlement

agreement. However, the state trial court enforced the agreement against the

Insured, terminating the litigation. The Insured were unsuccessful in their appeal

to the Alabama Court of Appeals.

      The Insured then brought suit against One Beacon in federal court. In their

federal complaint, the Insured request compensation for their destroyed home and

furnishings and for living expenses incurred, as well as for One Beacon’s

malicious, grossly negligent, and willful breach of their insurance contract.

Because the Insured have fully litigated these claims in state court, their federal

complaint is barred by res judicata.

      The Insured’s complaint demonstrates that their federal action involves the

same parties and causes of action that were fully and previously resolved by a state

court of competent jurisdiction. The district court properly dismissed the action

under Rule 12(b)(6) as barred by the doctrine of res judicata in accord with

Alabama law. See Saboff, 200 F.3d at 1359. Moreover, to the extent the cause of

action in state court action differed from any cause of action which could be



                                           7
liberally construed as underlying the present case (e.g., breach of the state court

settlement agreement), collateral estoppel applied to preclude relitigation of

whether the settlement agreement was binding and should be enforced, and

warranted dismissal on that basis. See Wheeler, 364 So.2d at 1199.

                                   CONCLUSION

      Upon review of the record and the parties’ briefs, we discern no reversible

error. Accordingly, we affirm.

      AFFIRMED.




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