           Case: 20-10120   Date Filed: 07/27/2020   Page: 1 of 7



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-10120
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:18-cv-01931-MHH



MANDY POWRZANAS,

                                                           Plaintiff-Appellant,

                                  versus

JONES UTILITY AND CONTRACTING CO. INC.,
RICHARD JONES,
PATRICIA JONES,

                                                        Defendants-Appellees.

                      ________________________

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

                             (July 27, 2020)

Before ROSENBAUM, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Mandy Powrzanas appeals the district court’s grant of Jones Utility and

Contracting Co., Inc.’s (“Jones Utility”), Richard Jones’s, and Patricia Jones’s

(collectively “the Defendants”) motions to dismiss the instant matter (“Powrzanas

II”). Powrzanas had unsuccessfully sued Jones Utility before in Powrzanas v.

Jones Utility and Contracting Co., Inc., No. 2:17-cv-975-GMB (N.D. Ala. Sept.

11, 2019) (“Powrzanas I”). Powrzanas challenges two conclusions of the district

court in the instant matter: (1) that her retaliation claim 1 under the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12203(a), was barred by claim

preclusion; and (2) her 42 U.S.C. § 1985(2) conspiracy claims 2 were barred by

issue preclusion. We address each of Powrzanas’s challenges in turn. 3

                                                 I.

       We review an order granting a motion to dismiss de novo, applying the same

standards as the district court. Young Apartments, Inc. v. Town of Jupiter, Fla.,

529 F.3d 1027, 1037 (11th Cir. 2008). In the Rule 12(b) context, a court generally

may not consider materials outside of the complaint without first converting the

motion to dismiss into a motion for summary judgment. Day v. Taylor, 400 F.3d


1
        Powrzanas’s ADA retaliation claim alleged that Jones Utility filed a state lawsuit against
her in retaliation for her making ADA complaints against Jones Utility, her former employer
(complaining of disability discrimination and a failure to accommodate).
2
        Powrzanas’s § 1985(2) conspiracy claims alleged that Richard Jones had attempted to
intimidate or threaten her by following her car or by pulling out into a street in front of her car
when they met on a public street.
3
        Other claims asserted by Powrzanas in the district court are either expressly abandoned
on appeal, or are abandoned by failing to fairly raise them in her appellate briefing.
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1272, 1275-76 (11th Cir. 2005). A court may consider a document that has been

attached to a motion to dismiss, however, if it is central to the plaintiff’s claims and

its authenticity has not been challenged. Id. at 1276. Whether res judicata applies

is a question of law that we review de novo. Griswold v. Cty. of Hillsborough, 598

F.3d 1289, 1292 (11th Cir. 2010).

      Res judicata generally refers to two separate concepts: claim preclusion and

issue preclusion. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1

(1984). We first address Powrzanas’s challenge to the district court’s dismissal

(claim preclusion) of her ADA retaliation claim, and then address her challenge to

the district court’s dismissal (issue preclusion) of her § 1985(2) conspiracy claims.

                                          II.

      Claim preclusion refers to the effect of a judgment in foreclosing relitigation

of a matter that has already been litigated and decided. Id. A claim is precluded if

(1) there was a final judgment on the merits in the prior case; (2) a court of

competent jurisdiction rendered the prior decision; (3) the parties, or individuals in

privity with the parties, are identical in both cases; and (4) the same cause of action

is involved in both cases. Griswold, 598 F.3d at 1292.

      A judgment dismissing a case with prejudice acts as a judgment on the

merits for purposes of claim preclusion. Anthony v. Marion Cty. Gen. Hosp., 617

F.2d 1164, 1170 (5th Cir. 1980). On the other hand, a dismissal “without prejudice


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is not an adjudication on the merits and thus does not have a res judicata effect.”

Hughes v. Lott, 350 F.3d 1157, 1161 (11th Cir. 2003). A dismissal for failure to

state a viable claim, either under Rule 12(b)(6) or Rule 41(b), is an adjudication on

the merits if the district court did not indicate whether it dismissed the case with or

without prejudice. NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990); see also

Fed. R. Civ. P. 41(b) (“Unless the dismissal order states otherwise, a dismissal

under this subdivision (b) and any dismissal not under this rule—except one for

lack of jurisdiction, improper venue, or failure to join a party under Rule 19—

operates as an adjudication on the merits.”); Bryant v. Rich, 530 F.3d 1368, 1376

n.12 (11th Cir. 2008) (noting that a court generally decides a 12(b)(6) motion on

the merits). The res judicata consequences of a final, unappealed judgment on the

merits are not altered by the fact that the judgment may have been wrong. Juris v.

Inamed Corp., 685 F.3d 1294, 1335 (11th Cir. 2012).

      Here, the district court did not err in concluding that Powrzanas’s ADA

retaliation claim predicated upon Jones Utility’s state lawsuit was barred by claim

preclusion. In Powrzanas I, Jones attempted to bring an ADA retaliation claim

predicated upon Jones Utility’s state lawsuit in an amended complaint. The

Powrzanas I court, in addressing Jones Utility’s motion to dismiss that amended

complaint, reached the merits of that retaliation claim, and held that Powrzanas’s

allegations failed to state a claim upon which relief may be granted. Thus, the


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Powrzanas I court granted Jones Utility’s motion to dismiss and struck the

amended complaint. Because the Powrzanas I court’s order dismissing the

amended complaint did not specify it was doing so without prejudice, that

dismissal was an adjudication on the merits. Accordingly, we affirm as to this

issue and turn to Powrzanas’s challenge to the district court’s finding on issue

preclusion.

                                          III.

      Issue preclusion “refers to the effect of a judgment in foreclosing relitigation

of a matter that has been litigated and decided.” Migra, 465 U.S. at 77 n.1. Issue

preclusion has four elements:

      (1) the issue at stake must be identical to the one involved in the prior
      litigation; (2) the issue must have been actually litigated in the prior
      suit; (3) the determination of the issue in the prior litigation must have
      been a critical and necessary part of the judgment in that action; and (4)
      the party against whom the earlier decision is asserted must have had a
      full and fair opportunity to litigate the issue in the earlier proceeding.

CSX Transp., Inc. v. Bhd. of Maint. of Way Emps., 327 F.3d 1309, 1317 (11th Cir.

2003) (quotation marks omitted).

      To be identical, the issues must have been litigated expressly or by

implication in the prior case. See In re Justice Oaks II, Ltd., 898 F.2d 1544, 1149-

50 n.3 (11th Cir. 1990). The two cases must involve identical events or

transactions; it is not enough for events or transactions to be similar in nature and

close in time. In re McWhorter, 887 F.2d 1564, 1567-68 (11th Cir. 1989). To
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distinguish the issues, a party must identify only one materially different fact

altering the legal issue in the case. CSX Transp., Inc., 327 F.3d at 1317-18.

      “When an issue is properly raised, by the pleadings or otherwise, and is

submitted for determination, and is determined, the issue is actually litigated.”

Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998) (quoting

Restatement (Second) of Judgments § 27 cmt. d (1982)). Notably, “the finality

requirement is less stringent for issue preclusion than for claim preclusion.”

Christo v. Padgett, 223 F.3d 1324, 1339 (11th Cir. 2000). Claim preclusion

applies only when a final judgment is entered, but issue preclusion requires only

that the adjudication of an issue “be sufficiently firm to be accorded conclusive

effect.” See id. at 1339 n.47 (quotation marks omitted). When a judgment

addresses only one issue, that issue is a critical and necessary part of the judgment.

See Bush v. Balfour Beatty Bah., Ltd. (In re Bush), 62 F.3d 1319, 1321-22 (11th

Cir. 1995).

      Section § 1985(2) prohibits class-based retaliation for testifying in federal

courts. 42 U.S.C. § 1985(2); see Chavis v. Clayton Cty. Sch. Dist., 300 F.3d 1288,

1292-93 (11th Cir. 2002). The ADA makes it unlawful to coerce, intimidate,

threaten, or interfere with any individual for asserting her rights under the ADA.

42 U.S.C. § 12203(b). A court will grant preliminary injunctive relief if the

movant demonstrates that: (1) there is a substantial likelihood of success on the


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merits of the underlying case, (2) the movant will suffer irreparable harm in the

absence of an injunction, (3) the harm suffered by the movant in the absence of an

injunction would exceed the harm suffered by the opposing party if the injunction

is issued, and (4) an injunction would not disserve the public interest. Odebrecht

Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1273-74 (11th Cir.

2013).

      The district court did not err in finding that Powrzanas’s § 1985(2) claims

were barred by issue preclusion. The dispositive issue—whether Richard Jones

engaged in retaliatory conduct when he encountered Powrzanas in traffic—was

identical to the factual issue presented in Powrzanas’s two motions for a

restraining order in Powrzanas I, the issue was actually litigated in Powrzanas I

through briefs and two evidentiary hearings, the issue was a critical and necessary

part of the Powrzanas I court’s orders denying those motions, and Powrzanas had a

full and fair opportunity to litigate the issue. Accordingly, we affirm as to this

issue and uphold the district court’s grant of dismissal for the Defendants.

      AFFIRMED.




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