                                                                  [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-11692         ELEVENTH CIRCUIT
                                                                 NOVEMBER 18, 2011
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________
                                                                       CLERK

                                 D.C. Docket No. 0:10-cv-61758-UU



JUSSI K. KIVISTO,

llllllllllllllllllllllllllllllllllllllll                    Plaintiff - Appellant,

                                                 versus

MICHAEL DAVID SOIFER,
KENNETH LAWRENCE MARVIN,
MILLER, CRANFIELD, PADDOCK AND STONE, PLC,
SUSAN I. ROBBINS,

llllllllllllllllllllllllllllllllllllllll                    Defendants - Appellees.


                                     ________________________

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

                                           (November 18, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

      Jussi K. Kivisto, proceeding pro se, appeals the district court’s dismissal of

his claims as barred by res judicata. We affirm.

      In 2005, Susan I. Robbins, an attorney with Miller, Cranfield, Paddock and

Stone, PLC, filed a complaint with the Florida Bar regarding Kivisto, an attorney

who was licensed to practice in Florida. Michael David Soifer and Kenneth

Lawrence Marvin, both counsel for the Florida Bar, conducted an investigation of

Robbins’s complaint. As a result of the investigation, in 2007 the Florida Bar

filed a disciplinary proceeding against Kivisto with the Florida Supreme Court.

      In 2008, before the Florida Supreme Court resolved the disciplinary

proceeding, Kivisto filed a complaint in federal district court (Kivisto I) alleging

that the defendants in this case, in addition to several other attorneys and another

law firm, violated various sections of 42 U.S.C. § 1983, 42 U.S.C. § 1985, and the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968.

Specifically, Kivisto contended that the Kivisto I defendants conspired to make

false representations to the Florida Supreme Court during the investigation and

disciplinary proceedings, the result of which deprived him of his constitutional

rights. In June 2010, the district court dismissed the case with prejudice for failure

                                          2
to state a claim. The Florida Supreme Court subsequently concluded its

disciplinary proceeding and disbarred Kivisto.

      Kivisto then filed a second law suit in district court, alleging that during the

investigation of and disciplinary proceedings against him, the defendants violated

§ 1983 and § 1985 by conspiring to fabricate evidence. The defendants moved to

dismiss Kivisto’s claims, contending that the claims were barred by res judicata

and collateral estoppel. The district court agreed and dismissed Kivisto’s claims.

Kivisto now appeals.

      We review de novo a district court’s res judicata or collateral estoppel

determination. EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir.

2004). Under res judicata, “a final judgment on the merits bars the parties to a

prior action from relitigating a cause of action that was or could have been raised

in that action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001).

A party seeking to invoke res judicata must satisfy four elements: “(1) there is a

final judgment on the merits; (2) the decision 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 v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).




                                           3
      Kivisto contests only the fourth element, arguing that the instant cause of

action is distinct and could not have been brought in Kivisto I because it arose

when the fabricated evidence was used before the Florida Supreme Court, which

occurred after he filed suit in Kivisto I in 2008. But “if a case arises out of the

same nucleus of operative fact, or is based upon the same factual predicate, as a

former action,” then the two cases “arise out of the same transaction or series of

transactions” and are the same “cause of action” for purposes of res judicata. Id.

at 1239 (internal quotation marks omitted). Further, under res judicata, “claims

that ‘could have been brought’ are claims in existence at the time the original

complaint is filed.” In re Piper Aircraft Corp., 244 F.3d at 1298-99 (internal

quotation marks omitted).

      Here, Kivisto concedes that his claims are “based on fabrication of

evidence” that allegedly occurred during the complaint, investigation, and

initiation of disciplinary proceedings before the Florida Supreme Court, all of

which occurred prior to Kivisto I. Because the facts giving rise to Kivisto’s

second claim were present at the time of Kivisto I, the two cases arose out of the




                                           4
same series of transactions and the district court properly found that res judicata

bars Kivisto’s claims.1

AFFIRMED.




       1
          Because we find that res judicata bars Kivisto’s claims, we do not need to address the
district court’s conclusion that collateral estoppel also applies as a bar.

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