           Case: 15-10625   Date Filed: 10/14/2016   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                         ________________

                              No. 15-10625
                         Non- Argument Calendar
                          ________________

                D.C. Docket No. 3:14-cv-00328-MCR-CJK



ROBERT MICHAEL ARDIS,

                                                               Plaintiff-Appellant,

                                  versus

PAIGE ANDERSON,
THOMAS AUXTER,
K. BLAINE WALL,
THOMAS WAZLAVEK,
PENSAGOLA STATE COLLEGE FACULTY ASSOCIATION, et al.,

                                                         Defendants-Appellees.
                        ______________________

                Appeal from the United States District Court
                   for the Northern District of Florida
                        ______________________

                            (October 14, 2016)

Before TJOFLAT, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      On January 18, 2011, Pensacola State College (PSC) terminated Robert

Michael Ardis's employment as a tenured professor and coordinator of the

college's criminal justice program. PSC took such action because on his return

from a sabbatical taken in the Spring and early Summer of 2010 for the purpose of

obtaining a second master's degree, he "presented PSC with a degree from an

online "diploma mill." Ardis v. Pensacola State College, 128 So.2d 260, 261 (Fla.

1st Dist. Ct. App. 2013). PSC characterized Ardis' conduct as "a fraud upon the

College and ... misconduct in office." Id.


      Ardis challenged PSC's decision "in an arbitration proceeding at which he

was represented by counsel. The arbitrator held a three-day evidentiary hearing

and, on November 21, 2011, issued a 35-page decision containing detailed

findings of fact and legal conclusions." Id. The arbitrator found that "PSC

established that [he] committed misconduct in office based on his "academic

dishonesty."


      On receiving the arbitrator's decision, Ardis filed suit in the Escambia

County, Florida Circuit Court, seeking to void the decision. The Circuit Court

denied relief. Proceeding pro se, he appealed the decision to the District Court of

Appeal, which affirmed. Ardis, 128 So.2d at 261. Subsequent review was denied.

See Ardis v. Pensacola State College, 123 So.ed 557 (Fla. 2013); Ardis v.

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Pensacola State College, ___U.S. ____ , 133 S. Ct. 2836, 186 L. Ed.2d 893

(2013).


      Later in 2013, Ardis, again proceeding pro se, brought suit against the PSC

Board of Trustees and a host of others connected to the college, all in their

individual capacities, in the U.S. District Court for the Northern District of Florida,

Case No. 3:13cv352/MCR/CJK. In his complaint, Ardis sought relief under 42

U.S.C. §§ 1981 and 1983 and the Federal Arbitration Act, 9 U.S.C. § 1 et seq. The

case ended on April 16, 2014, when the parties filed a stipulation of dismissal with

prejudice pursuant to Federal Rule of Civil Procedure 41 (a)(l)(A)(ii).


      On July 11, 2014, Ardis, still proceeding pro se, returned to the District

Court with the instant lawsuit. In his second amended complaint, he sought relief

under 42 U.S.C. § 1983 and 9 U.S.C. § I et seq. against the PSC Board of Trustees,

other named individuals and numerous John and Jane Does connected with the

college, all in both their official and individual capacities, and various associations

involved with the college or the provision of education. The District Court referred

the case to a Magistrate Judge because Ardis was proceeding in forma pauperis.

His complaint could be dismissed if its allegations were "(i) frivolous or malicious,

(ii) fail[ed] to state a claim on which relief may be granted, or (iii) [sought]

monetary relief against a defendant who is immune from such relief." 28 U.S.C. §

1915(e)(2)(B). The Magistrate Judge, in his Report and Recommendation
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(R & R) to the District Court, recommended that the complaint be dismissed on the

ground that Ardis’ claims were barred by the doctrine of res judicata. The District

Court agreed, and adopting the R & R, dismissed the complaint with prejudice.


      Ardis appeals, arguing that the District Court erred in concluding that the

doctrine of res judicata barred his claims. We are unpersuaded. The doctrine

applies as the Magistrate Judge correctly explained in the portion of his R & R set

out in the Appendix.


      AFFIRMED.




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                                        APPENDIX


Res judicata

       "The doctrine of res judicata bars the filing of claims which were raised or

could have been raised in an earlier proceeding." Dixon v. Bd. of Cnty. Com'rs

Palm Beach Cnty., F1a., 518 Fed. Appx. 607, 609 (11th Cir. 2013). In determining

"whether to give res judicata effect to a state court judgment," a federal court

"must apply the res judicata principles of the law of the state whose decision is set

up as a bar to further litigation." Muhammad v. Sec 'y, Fla. Dept. of Corrections,

739 F.3d 683, 688 (11th Cir. 2014) (internal marks omitted). Under Florida law,

'"[a] judgment on the merits rendered in a former suit between the same parties or their

privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive

not only as to every matter which was offered and received to sustain or defeat the claim,

but as to every other matter which might with propriety have been litigated and

determined in that action.'" Id. (quoting Fla. Dep't ofTransp. v. Juliano, 801 So.2d 101,

105 (Fla. 2001)). "In other words, a judgment on the merits bars a later-filed complaint

when the following four conditions are present: (1) identity of the thing sued for; (2)

identity of the cause of action; (3) identity of persons and parties to the action; and (4)

identity of quality in persons for or against whom [the] claim is made." Id. (internal

marks omitted).



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       "Florida law defines identical causes of action as causes sharing similarity of

facts essential to both actions. Id. (internal marks omitted). Hence, under Florida

law, "[i]dentity 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.’" Lozman v.

City of Riviera Beach, Fla., 713 F.3d 1066, 1074-75 (11th Cir. 2013) (quoting

Tyson v.Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) {en banc and per

curiam)). In the Eleventh Circuit, "the determination of whether the causes of

action in two proceedings are the same is governed by whether the primary right

and duty are the same." Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir.

1992). "The test is one of substance, not form." Id. "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 'operative nucleus of fact.'" Id. at 1358-

59 (internal marks omitted).

       Here, plaintiff filed a complaint in state court seeking to vacate the

arbitrator's decision arguing, among other things, that the arbitrator was biased and

that the arbitrator exceeded her authority in finding that his termination was

justified. The state court found otherwise, stating that there was "no reasonable

basis for concluding that there was evident partiality by the arbitrator toward the

Defendant or against the Plaintiff and that the arbitrator determined the issue

before her - whether there was just cause for the plaintiff’s termination - in

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a decision based on competent and substantial evidence. Plaintiff lost.

       Plaintiff then challenged the very same arbitration - claiming procedural violations

- in the earlier suit filed in this court; he also challenged the validity of his termination,

claiming he was discriminated against based on his sex. Now, having stipulated to

dismissal of the first federal suit, plaintiff once again challenges the arbitration based on

alleged procedural violations and his termination based on alleged sex discrimination.

Because all of the claims asserted in this matter were raised, or could have been raised, in

the prior state and federal actions, and are based on the same facts underlying those

lawsuits, the first and second elements of res judicata are satisfied.1

       Turning to the third and fourth factors, identity of persons or parties to the action

and identity of quality in persons for or against whom the claim is made, Mr. Ardis

indisputably was the plaintiff in both the state court action and the prior federal court

action and is the plaintiff in the case at bar. PSC was the sole defendant in the state court

action, and the Pensacola State College Board of Trustees, Edward Moore, Herb Woll,

Carol Carlan, Monsignor Luke Hunt, Marjorie T. "Margie" Moore, John L. O'Connor,

________________
        1
          Res judicata applies to the Stipulation of Dismissal filed by the parties in the prior federal
action. See Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir. 2004) ("In the
absence of a settlement agreement [providing otherwise], a judgment of dismissal pursuant to Rule 41
should be given the same res judicata effect as any other judgment."). As the Eleventh Circuit explained,
"[a] judgment dismissing an action with prejudice based upon the parties' stipulation, unlike a judgment
imposed at the end of an adversarial proceeding, receives its legitimizing force from the fact that the
parties consented to it." Id.


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Dona Usry, Deidre Young, Charles Edward Meadows, Thomas Gilliam, Jr., Martin

Gonzalez, and Paul Snider were defendants in the earlier federal action. To the extent they

were sued in their official capacities, the defendants in the prior federal court action were

in privity with PSC. The parties in the state case and prior federal action thus were

identical for purposes of res judicata. See Muhammad, 739 F.3d at 689; Estevez v.

Nabers, 219 F.2d 321, 323 (5th Cir. 1955) ("The fact that the defendant is a different

person in the present action does not affect the availability of the plea of res judicata,

since the government, its officers, and its agencies are regarded as being in privity for

such purposes.").2

       In this case, plaintiff has sued Paige Anderson, Thomas Gilliam, Jr., Martin

Gonzalez, Charles Edward Meadows, K. Blaine Wall; Thomas Wazlavek; the Pensacola

State College Faculty Association; the United Faculty of Florida; and the Florida

Education Association. Plaintiff therefore has included many of the same defendants in

this action that were named in the prior federal action but has added several new

defendants. To the extent plaintiff seeks to avoid the preclusive effects of res judicata by

naming new defendants in this action, his effort, to put it mildly, is duplicitous and to no

avail. Indeed, the Eleventh Circuit has recognized that a party "may not avoid the

application of re judicata by adding new parties." Endsley v. City of Macon, Ga.,




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321 F. App'x 811, 814 (11th Cir. 2008). The claims plaintiff has asserted against the new

defendants in this action could and should have been brought in the prior lawsuits, as they

all stem from plaintiff’s termination and the ensuing arbitration. The ... the third and

fourth elements of res judicata [are] satisfied and ... plaintiff's claims are barred by the

doctrine of res judicata.3




_________________________

         2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
         3
         The court notes that the plaintiff participated in the arbitration proceeding through its
conclusion, while represented by counsel, without ever challenging the manner in which the arbitrator
was selected and thus waived his right to do so in subsequent proceedings. See, e.g., Brook v.
Peak Int'l, Ltd, 294 F.3d 668, 673-74 (2002) (holding that the failure to object to a defect in the
arbitrator selection process constituted a waiver); Own Capital, L.L.C. v. Johnny's Enters., Inc.,
No. 11-12772, 2011 WL 2560334, at *4-6 (E.D. Mich. June 28, 2011) (finding that the
defendants waived their right to object to the process by which the arbitrator was selected
because they failed to object during the arbitration proceeding) (and cases cited therein);
Flournoy v. Am. Interactive Media, Inc., No. CIV. A. 98-CV-6573, 2001 WL 177067, at *2
(E.D. Pa. Jan. 12, 2001) (finding that because the defendants "waited until after the arbitrators
entered an award to object to the selection of the arbitrators," they waived such objection)
(emphasis in original); see also McKnight v. Dillard's, Inc., No. 3:08-00153, 2008 WL 4329221,
at *7 (M.D. Ten. Sept. 16, 2008) (finding that party "effectively waived" objection to arbitrator
by failing to follow selection procedure set forth in arbitration agreement by failing to follow it);
Bullseye Telecom, Inc. v. Global Crossing Bandwidth, Inc., No. 06-13571, 2007 WL 2780541, at
*5 (E.D. Mich. Sept. 24, 2007) (noting that parties to an arbitration agreement may waive
provisions, including those regarding the selection of arbitrators, when they voluntarily and
 intentionally abandon their rights to insist upon strict adherence to the terms).

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