Depianti v. Jan-Pro Franchising International, Inc.

United States Court of Appeals
For the First Circuit

No. 16-2256

GIOVANI DEPIANTI, and all others similarly situated,

Plaintiff, Appellant,

HYUN KI KIM, and all others similarly situated; KYU JIN ROH, and
all others similarly situated; GERARDO VAZQUEZ, and all others
similarly situated; GLORIA ROMAN, and all others similarly
situated; JUAN AGUILAR, and all others similarly situated;
NICOLE RHODES, and all others similarly situated; MATEO GARDUNO,
and all others similarly situated; CHIARA HARRIS, and all others
similarly situated; TODOR SINAPOV, and all others similarly
situated; GRASIELLE REGINA DOS SANTOS,

Plaintiffs,

v.

JAN-PRO FRANCHISING INTERNATIONAL, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Thompson, Selya, and Barron,
Circuit Judges.

Shannon Erika Liss-Riordan, with whom Adelaide H. Pagano and
Lichten & Liss-Riordan, P.C. were on brief, for appellant.
Jeffrey Mark Rosin, with whom Constangy, Brooks, Smith &
Prophete, LLP was on brief, for appellee.
September 29, 2017
 THOMPSON, Circuit Judge. Generation after generation of

parents have passed along a basic adage to their children: if at

first you don't succeed, try, try again. Such advice encouraging

perseverance can serve one well throughout a myriad of life

experiences. But while steadfast determination may, in the

abstract, be worthy of aspiration, the legal field has--as is often

the case--made an exception to this generalized rule.

Plaintiff Giovanni Depianti ("Depianti") appeals from

the district court's grant of summary judgment to Defendant Jan-

Pro Franchising International, Inc. ("Jan-Pro"). The lower

court's ruling rested on principles of res judicata, concluding

that the court was bound by a Georgia court judgment involving the

exact same parties and the exact same issues. Because we agree

that Depianti has already had his bite at the apple and is not

entitled to yet another, we affirm.

Getting Our Factual Bearings

We recite here only a brief synopsis of the factual

background of this dispute, saving our energy, instead, for the

necessary heavy lift that our discussion of this case's procedural

history will require. Jan-Pro is a national company principally

headquartered in Alpharetta, Georgia that organizes commercial

cleaning franchises. Under its particular franchise model, Jan-

Pro contracts with what are known as intermediary "master

franchisees" or "master owners" (regional, third party entities)

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to whom it sells exclusive rights to use the "Jan-Pro" logo, which

is trademarked. As of 2009 (which is the most up-to-date figure

in the record), ninety-one different master owners existed. These

master owners, in turn, sell business plans to "unit franchisees."

In other words, the business model set up by Jan-Pro is twofold,

with (1) Jan-Pro acting as franchisor and the master owner acting

as franchisee, in one instance and (2) the master owner acting as

franchisor to the unit franchisee, in the other.

Jan-Pro and its master owners are separate corporate

entities and each has its own staff. Moreover, master owners may

sell or transfer their individual businesses without approval from

Jan-Pro. Jan-Pro also reserves the right to inspect any premises

serviced by either the master owner or any of the master owner's

franchisees to ensure the Jan-Pro standards are being maintained.

Still, master owners have their own entity names and internal

business structures, and are responsible for their own marketing,

accounting, and general operations.

As for master owners and their unit franchisees, under

the terms of the model franchise agreement, master owners agree to

provide their franchisees with an initial book of business, as

well as start-up equipment and cleaning supplies. Moreover, the

master owner furnishes a training program for its unit franchisees.

Once initial set-up and training is complete, the master owner

agrees to (1) assist in the unit franchisee's customer relations

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(by, for example, providing substitute employees or contractors to

supply services in the event of an emergency impacting the unit

franchisee); (2) provide the unit franchisee with invoicing and

billing services; (3) advance the unit franchisee amounts that

have been billed but not yet collected from customers; and (4)

make available to the unit franchisee any improvement or changes

in services or business methods that are made available to other

franchisees. Additionally, the agreement notes that a unit

franchisee is at all times an independent contractor solely in

business for itself. As such, the unit franchisee may, for

example, hire its own employees and decide what to pay them, as

well as decide whether or not to pursue certain business

opportunities.

One such master owner is Bradley Marketing Enterprises,

Inc. ("BME"), which purchased master franchise rights from Jan-

Pro in 2003 for a region covering parts of Massachusetts. In June

2003, Depianti signed a franchise agreement with BME at the level

of "FP-100" (which is simply shorthand lingo for saying that

Depianti was promised $100,000 in gross annual billings through

his franchise relationship with BME). In order to enter into this

agreement and obtain the unit franchise, Depianti was required to

pay BME $23,400.

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 A Whirlwind Procedural Tour

Having given a very short overview of the lay of the

land, we now embark on the more burdensome task of sketching out

the nearly decade long life-cycle of this matter.

A. The District of Massachusetts

On April 18, 2008, Depianti brought suit against Jan-

Pro alleging that his status as a unit franchisee of BME was a

farce and that he was actually a direct employee of Jan-Pro.1 He

further maintained that due to this misclassification, he was

denied certain employment benefits in violation of the

Massachusetts Independent Contractor Law, Mass. Gen. Laws c. 149,

§ 148B ("Section 148B claim"). In particular, Depianti argued

that the alleged misclassification resulted in the following: (1)

unlawful deductions were taken from his pay; (2) he was forced to

pay unnecessary expenses that ordinarily would have been borne by

Jan-Pro (such as thousands of dollars in franchise fees); (3) he

was not guaranteed minimum wage or overtime pay; and (4) he was

ineligible for unemployment and workers' compensation.

1 While we recognize that the original lawsuit in this case
was brought on behalf of a putative class of cleaning workers that
included Depianti, we note that Depianti is the only remaining
plaintiff whose rights are at issue in this appeal. Thus, while
many of the allegations in the complaint were lobbed against Jan-
Pro by the putative class as a whole, our focus falls squarely on
Depianti and our description of the history of this case is framed
as such.

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 After discovery closed both sides moved for summary

judgment as to the Section 148B Claim.2 The district court was

then tasked with applying Section 148B's three-prong test to the

undisputed, material facts presented before it. Under that test,

an individual performing a service is considered an employee

unless:

(1) the individual is free from control and direction in
connection with the performance of the service, both
under his contract for the performance of service and in
fact; and

(2) the service is performed outside the usual course of
the business of the employer; and,

(3) the individual is customarily engaged in an
independently established trade, occupation, profession
or business of the same nature as that involved in the
service performed.

Mass. Gen. Laws ch. 149, § 148B.3

The district court, however, encountered difficulties in

properly applying the test. It expressed uncertainty as to how

the multi-leveled franchise model employed by Jan-Pro would impact

application of the three prongs. For example, the court noted

that the relevant contract in the litigation was a franchise

2 Jan-Pro also moved for summary judgment on numerous other
claims that are not relevant to deciding this appeal.
3 Given the remedial nature of the statute, the burden falls
on the purported employer to prove all three prongs and,
additionally, because the test is conjunctive, failure to satisfy
any one prong necessarily warrants a finding that the worker in
question--here, Depianti--is an employee. See Somers v. Converged
Access, Inc., 454 Mass. 582, 589-90 (2009).

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agreement between BME and Depianti--not one between Jan-Pro and

Depianti--and that it had found no cases where a defendant was

held liable under Section 148B without the named defendant being

a party to the contract at issue. In light of the lack of developed

Massachusetts state law or controlling state precedent on this

issue, the court declined to rule one way or the other on the

motions for summary judgment and, instead, issued an order

explaining that it was "concerned that the [Massachusetts Supreme

Judicial Court ("SJC")] has not yet been given an opportunity to

decide legal questions that will likely have a substantial impact

on the conduct of business throughout the Commonwealth." The

court, therefore, explained that it was certifying the following

question to the SJC: "[w]hether a defendant may be liable for

employee misclassification under [Mass. Gen. Laws ch. 149, § 148B],

where there was no contract for service between the plaintiff and

defendant."4 The district court then stayed the case pending a

response by the SJC.

B. Georgia State Court

At the same time the Massachusetts case was being

litigated in the federal district court, a separate action

initiated by Jan-Pro was making its way through the Georgia state-

court system. As is relevant to this appeal, Jan-Pro had sought

4 The district court also certified two other questions to
the SJC that are not relevant to this appeal.

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a declaratory judgment holding that no employment relationship

between Jan-Pro and Depianti existed under Section 148B and that

Jan-Pro was, therefore, not liable to Depianti in tort or contract.

In the same case, Jan-Pro also sought a declaratory judgment

against another unit franchisee, Hyun Ki Kim ("Kim") (the reason

this seemingly extraneous fact is mentioned will become apparent

later in our analysis).

At the early stages of the case, Depianti moved the

Georgia superior court (the state's trial-level court) to dismiss

the Georgia action for lack of personal jurisdiction. The superior

court, however, refused to do so. On the contrary, the court

concluded Depianti had not met his burden of demonstrating that he

lacked the minimum contacts necessary to establish jurisdiction as

required by the Georgia Long-Arm Statute. As such, the case

proceeded to discovery.

Following the conclusion of discovery, both sides moved

for summary judgment as to the Section 148B claim. In so doing,

Depianti once again challenged whether the superior court had

personal jurisdiction over him. The superior court concluded--as

it did at the motion to dismiss stage--that it did properly possess

personal jurisdiction. It also, however, favorably granted

Depianti's motion for summary judgment--holding that Depianti was,

indeed, an employee of Jan-Pro under Massachusetts law--and denied

Jan-Pro's motion regarding the same. In the same order, the

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superior court denied summary judgment as to Kim. Concurrent with

its summary-judgment order, the superior court also issued a

certificate of immediate appealability regarding the question of

personal jurisdiction. The court explained that in light of "it

appearing that said order denying [Depianti's jurisdiction motion]

is not otherwise subject to direct appeal, I do hereby certify

that said order is of such importance to the case that immediate

review should be had."5

Depianti, however, made the choice not to appeal the

superior court's personal-jurisdiction order. Jan-Pro, on the

other hand, did appeal the superior court's summary-judgment

ruling in favor of Depianti to the Georgia Court of Appeals ("GCA")

(an intermediate appellate court in Georgia). Eventually, the GCA

sided with Jan-Pro and reversed, concluding Jan-Pro had met its

burden of proving all three prongs of Section 148B. That is, the

GCA concluded that Depianti was free from the control and direction

of Jan-Pro; the cleaning services he performed were outside the

usual course of Jan-Pro's business; and Depianti was engaged in an

independently-established business (anyone interested in an in-

depth recitation of the GCA's reasoning regarding each of the

5
Such a certification was needed because the personal
jurisdiction order was an interlocutory order not otherwise
subject to immediate appeal. See Ga. Code Ann. § 5-6-34(b)
(explaining procedures for certification of an interlocutory
appeal).

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individual prongs can check out the GCA's decision at this

citation: Jan-Pro Franchising Int'l, Inc. v. Depianti, 310 Ga.

App. 265 (2011) ("Depianti Georgia")).

In light of this adverse ruling against Depianti, he

filed a petition for writ of certiorari to the Georgia Supreme

Court. The Georgia Supreme Court subsequently stayed its

consideration of the petition pending the outcome of the SJC's

answer to the question certified to it by the federal district

court in Boston (as discussed earlier).

Thus, as it stands in our whirlwind tour of this matter's

procedural history, both the federal district court for the

District of Massachusetts and the Georgia Supreme Court had, at

this point in time, entered stays pending the outcome of the SJC's

answer.

C. The Massachusetts Supreme Judicial Court Provides its Answer

Enter the SJC stage right with that desperately awaited-

upon answer to the question certified. May a defendant be liable

for employee misclassification under Section 148B even where there

was no contract for service between the plaintiff and defendant?

Yes, the SJC responded. Depianti v. Jan-Pro Franchising

International, Inc., 465 Mass. 607 (2013) ("Depianti Answer").6

6
In so concluding, the SJC explained that "remedial statutes
such as the independent contractor statute are 'entitled to liberal
construction'" Depianti Answer, 465 Mass. at 620 (quoting
Batchelder v. Allied Stores Corp., 393 Mass. 819, 822 (1985)).

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 The SJC, however, declined to apply its holding directly

to the relationship between Depianti and Jan-Pro. The question

the district court certified was, in the words of the SJC,

"limited" which the court understood "as asking only whether a

contract between the parties is a necessary element of a claim

under G.L. c. 149, § 148B." Id. at 619 (emphasis added). The SJC

did not, in other words, interpret the certified question as asking

for direct application of the elements of the statute to the

particular franchise arrangement that existed between Jan-Pro,

BME, and Depianti. Id. at 619 n.14. The SJC therefore warned

that:

[i]n concluding that an entity like Jan-Pro can be held
liable under G.L. c. 149, § 148B, without a contract
between itself and the employee, we should not be
understood as suggesting that Jan-Pro is in fact liable.
We take no position on the question whether the necessary
predicates for liability can be established here, a
matter involving determinations as to the summary
judgment record that are solely within the purview of
the United States District Court.

Id. at 623, n.16.

Indeed, "the purpose of the independent contractor statute is 'to
protect workers by classifying them as employees, and thereby grant
them the benefits of rights of employment, where the circumstances
indicate that they are, in fact, employees.'" Id., 465 Mass. at
620 (quoting Taylor v. E. Connection Operating, Inc., 465 Mass.
191, 198 (2013)). To allow an end-run around the statute due
simply to a company's use of a generalized, multi-tiered franchise
structure, the court concluded, would "contravene the express
purpose of the statute." Id., 465 Mass. at 624.

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 All the court decided was "that the lack of a contract

for service between the putative employer and putative employee

does not itself preclude liability" under Section 148B. Id. at

624-25 (emphasis added). No more, no less.

D. The Aftermath

Less than a month after the SJC issued its answer to the

district court's certified question, the Georgia Supreme Court

lifted its stay and denied the petition for certiorari, noting

that each of the justices concurred that the case was not worthy

of review. Jan-Pro then filed a notice of final judgment in the

Massachusetts district court, explaining that in light of the

Georgia Supreme Court's denial of certiorari, the GCA decision

granting summary judgment in favor of Jan-Pro was final and should

be honored for res judicata purposes.

Soon thereafter, both parties stipulated in the Georgia

superior court to the dismissal of the Georgia action with

prejudice and waived all rights to appeal. As such, that case

effectively ended.

Back in Massachusetts, the district court also lifted

the stay and both parties filed supplemental summary-judgment

briefs in light of the SJC decision. Giving preclusive effect to

the Georgia decision, the district court judge granted Jan-Pro's

motion for summary judgment as to the Section 148B claim and denied

Depianti's motion regarding the same. Depianti, disagreeing with

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the district judge's order, has appealed and so, at long last,

here we are.

Our Take

Depianti argues the district court erred in finding it

was bound by the GCA's conclusion that he was not an employee of

Jan-Pro for purposes of Section 148B. In particular, he contends

that the GCA decision was not a final judgment and, therefore, the

preclusive effect it would otherwise be given under res judicata

principles did not attach. Jan-Pro, unsurprisingly, believes just

the opposite--namely, that the district court properly applied res

judicata and, as such, reached the only legally cognizable outcome

in granting Jan-Pro's motion for summary judgment.

While we now step in to review de novo the district

court's grant of summary judgment, see Bay State HMO Mgmt., Inc.

v. Tingley Sys., Inc., 181 F.3d 174, 177 (1st Cir. 1999) ("The

applicability of the doctrine of res judicata is a question of law

subject to plenary review"), we first pause to provide a brief

primer on the doctrine we conclude dictates the outcome of this

case: res judicata.

A. Primer

Res judicata, which provides that a final judgment on

the merits of an action precludes the parties from relitigating

claims that were or could have been raised in a prior action, Haag

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v. United States, 589 F.3d 43, 45 (1st Cir. 2009), should be

nothing new to litigants appearing before us. Indeed, its roots

are almost as old as the Republic itself, deriving from the full

faith and credit clause of the United States Constitution. See

U.S. Const. art. IV, § 1 ("Full Faith and Credit shall be given in

each State to the public Acts, Records, and judicial Proceedings

of every other State.").7 So important, in fact, is this principle

that it also has a statutory basis in the form of 28 U.S.C. § 1738,

which reads in relevant part:

The records and judicial proceedings of any court of any
. . . State, Territory or Possession . . . shall have
the same full faith and credit in every court within the
United States and its Territories and Possessions as
they have by law or usage in the courts of such State,
Territory or Possession from which they are taken.

No surprise, then, that we have concluded that a federal court

must give preclusive effect to a state-court judgment if the state

court would. Atwater v. Chester, 730 F.3d 58, 62 n.3 (1st Cir.

2013).

And res judicata shouldn't be thought of as some hollow

principle meant solely to be a thorn in the side of losing parties,

either. To the contrary:

7 For the sake of clarity, we note that we are specifically
talking here about the preclusive effect of state court judgments.
This is not to suggest that the entire doctrine of res judicata
has no other roots. See generally Robert Wyness Millar, The
Premises of the Judgment as Res Judicata in Continental and Anglo-
American Law: III. The Anglo-American Law, 39 Mich. L. Rev 238
(1940) (tracing the historical origins of res judicata).

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 Its enforcement is essential to the maintenance of
social order; for the aid of judicial tribunals would
not be invoked for the vindication of rights of person
and property if, as between parties and their privies,
conclusiveness did not attend the judgments of such
tribunals . . . .

S. Pac. R.R. Co. v. United States, 168 U.S. 1, 49 (1897). Thus,

because res judicata serves interests of great concern to the

public--like finality, repose, and judicial economy--our judicial

superiors remind us that fidelity to these core interests is

frequently of greater importance than "any individual judge's ad

hoc determination of the equities in a particular case." Federated

Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981); see also

Montana v. United States, 440 U.S. 147, 153 (1979) (explaining

that res judicata is a "fundamental precept of common-law

adjudication").

If "[t]he central role of adversary litigation in our

society is to provide binding answers," 18 Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure

§ 4403 (3d ed.), then it is the doctrine of res judicata that

necessarily preserves "judicial dispute resolution against the

corrosive disrespect that would follow if the same matter were

twice litigated to inconsistent results." Id. That is to say,

res judicata is a protection afforded to the public, one

safeguarding citizens from the anguish of being dragged through

interminable litigation solely because an adversary has the will

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or means to continue endlessly. Litigants--and the public-at-

large--are entitled to trust that there will inevitably be an end-

point to their judicial disputes. They are also entitled to trust

judicial action and maintain faith in judicial results. Res

judicata serves as a mechanism that ensures this trust remains

intact.

B. Application of Primer

With those res judicata principles in mind, we now turn

to the heart of this matter. Because, as noted earlier, "a state

court judgment is entitled to the same preclusive effect in federal

court as it would be given in the state in which it was rendered[,]"

García-Monagas v. De Arellano, 674 F.3d 45, 50 (1st Cir. 2012),

and because the state court rendering the decision at issue here

is in Georgia, we apply the same preclusion principles that courts

in the Peach State would apply.

Georgia's doctrine of res judicata is codified at Ga.

Code Ann. § 9-12-40, which provides:

A judgment of a court of competent jurisdiction shall be
conclusive between the same parties and their privies as
to all matters put in issue or which under the rules of
law might have been put in issue in the cause wherein
the judgment was rendered until the judgment is reversed
or set aside.

And, in order for the doctrine to apply in Georgia, "three

prerequisites must be satisfied: (1) identity of the parties or

their privies; (2) identity of the cause of action; and (3)

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previous adjudication on the merits by a court of competent

jurisdiction." Brown & Williamson Tobacco Corp. v. Gault, 280 Ga.

420, 421 (2006).

Depianti takes no issue with either the first or second

prereqs. Depianti and Jan-Pro were the parties in both the Georgia

and Massachusetts actions--satisfying prereq number one--and both

actions were tasked with determining the type of relationship

Depianti maintained with Jan-Pro (employee or independent

contractor)--satisfying prereq number two. Instead, it is the

last of the three prereqs--whether the judgment of the GCA was a

final adjudication on the merits--that forms the crux of this

dispute.

In Georgia, "final" means "a case in which a judgment

. . . has been rendered, the availability of appeal exhausted, and

the time for a petition for certiorari elapsed or a petition for

certiorari finally denied." Turpin v. Todd, 268 Ga. 820, 831 n.49,

(1997) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6

(1987)). Here, given that the Georgia Supreme Court did, in fact,

deny certiorari, it would appear as though the GCA's judgment was

final for purposes of res judicata. But Depianti argues otherwise.

He counters that while it is true the Georgia Supreme Court denied

certiorari, the Georgia superior court never entered a subsequent

final judgment following that denial. Without such explicit entry

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of final judgment by the trial court, Depianti continues, no

preclusive effect attached to the GCA's decision.

While Depianti doesn't cite to the legal source of his

argument on this issue, his reasoning seems to be based on Ga.

Code Ann. § 9-11-54(b). In relevant part that statute states:

any order or other form of decision, however designated,
which adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to
revision at any time before the entry of judgment
adjudicating all the claims and the rights and
liabilities of all the parties.

In other words, if there are multiple claims in a case and a

judgment is only rendered as to one of them, that judgment is "not

a final judgment and lacks res judicata effect unless the trial

court expressly directs the entry of a final judgment and

determines that there is no just reason for delaying the finality

of the judgment." Roth v. Gulf Atl. Media of Georgia, Inc., 244

Ga. App. 677, 679 (2000).

Here, the original action contained two discrete claims-

-one pertaining to Depianti and one pertaining to another unit

franchisee, Hyun Ki Kim (we told you Kim would come back up).

While the superior court granted Depianti's summary judgment

motion, it denied summary judgment with regards to Kim. Thus,

immediately following the adjudication of the summary judgment

motions, the court's judgment as to Depianti was not at that time

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final because the claim against Kim remained. See id. A Georgia

statutory provision--Ga. Code Ann. § 9-11-56(h)--however, "allows

but does not require an immediate appeal from the grant of summary

judgment to one of the parties even though the judgment is not

final. . . ." Benedict v. Snead, 253 Ga. App. 749, 751 (2002).

In other words, even though the court's grant of summary judgment

in favor of Depianti was not itself final, Ga. Code Ann. § 9-11-

56(h) provided Jan-Pro the right to file an immediate appeal of

the decision (though Jan-Pro was in no way required to do so).

Had Jan-Pro declined to pursue the appeal, then the remaining claim

against Kim would have proceeded to trial and "the effect [would

have been] that the grant of summary judgment as to [Depianti

would] not [be] a final judgment during the pendency of the suit

[because it would have been] 'subject to revision at any time

before the entry of judgment adjudicating all the claims and the

rights and liabilities of all the parties.'" Id. (quoting Ga.

Code Ann. § 9-11-54(b)). That is to say, had Jan-Pro chosen not

to immediately appeal the court's grant of summary judgment to

Depianti, then preclusive effect would not have attached to that

particular decision until the rest of the case played out with Kim

(and any subsequent appeals were resolved).

But that is not what happened here. Instead, Jan-Pro

did, in fact, choose to immediately appeal the Depianti summary-

judgment decision. In Georgia, where an immediate appeal of a

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summary-judgment decision is undertaken pursuant to Ga. Code Ann.

§ 9-11-56(h) "then the appellate decision on the summary judgment

ruling is binding" for purposes of res judicata under Ga. Code

Ann. 9-11-60(h).8 Roth, 244 Ga. App. at 679 (2000); see also Aiken

Dermatology & Skin Cancer Clinic, P.A. v. DavLong Sys., Inc., 314

Ga. App. 699, 704 (2012) (same). In this particular scenario,

then, res judicata took effect against Depianti even though the

original lawsuit that resulted in the preclusive judgment against

him had not yet concluded with regard to the other party, Kim.

See Roth, 244 Ga. App. at 679. Upon the Georgia Supreme Court's

denial of certiorari, then, (1) the GCA decision became final, (2)

no express entry of final judgment by the superior court was

necessary, and (3) preclusive effect attached.

To summarize, Depianti's argument that the Georgia

judgment was not final because the superior court never crafted a

declaratory judgment to close out the case is a failure. Once the

GCA spoke and the Georgia Supreme Court denied certiorari, the

shape of that declaration was foreordained. We have made plain,

8 Ga. Code Ann. 9-11-60(h) states: "The law of the case rule
is abolished; but generally judgments and orders shall not be set
aside or modified without just cause and, in setting aside or
otherwise modifying judgments and orders, the court shall consider
whether rights have vested thereunder and whether or not innocent
parties would be injured thereby; provided, however, that any
ruling by the Supreme Court or the Court of Appeals in a case shall
be binding in all subsequent proceedings in that case in the lower
court and in the Supreme Court or the Court of Appeals as the case
may be." (emphasis added).

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long ago, that we will not force a litigant "round and round the

mulberry bush for no better reason than ceremonial

punctiliousness." González v. Vélez, 864 F.3d 45, 56 (1st Cir.

2017) (quoting Jusino v. Zayas, 875 F.2d 986, 990 (1st Cir. 1989)),

and mandating that Jan-Pro get the superior court's stamp of

approval on the final judgment of the GCA would do just that.

This could otherwise be the end of the case, but Depianti

attempts to circumvent this unfavorable outcome by asserting a

second argument: that the Georgia courts never had personal

jurisdiction over him and, therefore, the GCA decision also cannot

be considered final for that reason. "A motion to set aside a

judgment based upon a lack of jurisdiction over the person may be

brought at any time[,]" Swafford v. Elkins, 327 Ga. App. 802, 803

(2014), even at the conclusion of a case. Depianti argues that

because he never forfeited the right to lodge an appeal on

jurisdictional grounds, the final judgment of the GCA cannot truly

be "final." Notwithstanding the fact that the GCA's decision was

final for the reasons already discussed above, this alternative

argument is also unavailing.

It is undisputed that Depianti challenged whether the

Georgia superior court had jurisdiction over him at the motion to

dismiss stage and again at summary judgment. It is also undisputed

that the court determined both times that it properly possessed

jurisdiction. In general, such interlocutory orders are not

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appealable. See, e.g., Anthony v. Anthony, 236 Ga. 508, 509

(1976). But--and this should start to sound familiar--there is an

exception to this generalized rule. "The courts of Georgia and

[our sister court, the 11th Circuit's] binding precedent

interpreting Georgia law have clarified that when a trial judge

certifies an interlocutory order for immediate appeal, the order

becomes final for purposes of both appealability and preclusion."

Cmty. State Bank v. Strong, 651 F.3d 1241, 1265–66 (11th Cir. 2011)

(citing Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (1978)).

Here, the superior court did exactly that. When it granted

Depianti's motion for summary judgment on the Section 148B claim

(and also rejected his assertion that no personal jurisdiction

existed), the court simultaneously issued a certificate of

immediate review as to the personal jurisdiction ruling. That is,

the court noted that the question of personal jurisdiction was of

such importance to the case that Depianti should be afforded the

opportunity to appeal its decision forthwith. Depianti, however,

chose not to appeal the personal jurisdiction issue, presumably

because he had won on the substantive Section 148B claim. And

while that may have seemed like sound strategy at the time,

strategic decisions have consequences. Here, that decision to

forego an appeal created res judicata effect. See id. (quoting

Culwell, 242 Ga. at 243) ("'[i]f the trial court does certify that

the judgment is final and ripe for review under Code Ann. § 81A–

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154(b) [now § 9–11–54(b)], the time for appeal begins to run,'

creating 'res judicata effect.'"). The federal district court in

Massachusetts, therefore, correctly concluded that it had no

independent obligation to determine whether the Georgia courts had

competent jurisdiction. Rather, the district court was bound by

the Georgia superior court's judgment that jurisdiction was

proper.9

Finally, to the extent Depianti argues that the GCA got

the decision wrong and that the logic it relied upon was overruled

by the SJC in Depianti Answer, that argument fails.10 Whether or

not Depianti Answer changed the lay of the land by substantially

altering how Section 148B claims should be adjudicated, it is

nonetheless "a well-settled principle that res judicata does not

9Additionally, we want to note here that Depianti's argument
seems especially frivolous--bordering on disingenuous--in light of
the fact that a joint stipulation of dismissal with prejudice was
filed in the Georgia action that waived all rights of appeal.
Depianti's position that he still could have appealed the personal
jurisdiction issue seems nonsensical where (1) the superior court
certified its jurisdiction order for immediate appealability; (2)
Depianti chose not to appeal; and (3) Depianti subsequently waived
all rights to appeal when the parties jointly dismissed the action.
10As a side note, Depianti's position that Depianti Answer
created such a seismic shift in the law so as to fully undermine
the GCA's decision is questionable. The SJC merely concluded "that
the lack of a contract for service between the putative employer
and putative employee does not itself preclude liability" under
Section 148B. Depianti Answer, 465 Mass. at 624-25 (emphasis
added). While we express no view as to the correctness of the GCA
decision, we note that the GCA included numerous other reasons for
its ruling beyond the existence of Jan-Pro's multi-tiered
franchise structure. See generally Depianti Georgia, 310 Ga. App.
267-270.

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allow dispensation for intervening changes in the law." Haag, 683

F.3d at 32 n.2 (1st Cir. 2012). That is to say, "the res judicata

consequences of a final . . . judgment on the merits [are not]

altered by the fact that the judgment may have been wrong or rested

on a legal principle subsequently overruled in another case."

Moitie, 452 U.S. at 398. Indeed, "if courts relaxed the principles

of claim preclusion every time it appeared that a litigant had a

strong claim 'on the equities,' the doctrine would fail to serve

its purposes of promoting judicial economy and repose." Rose v.
Town of Harwich, 778 F.2d 77, 82 (1st Cir. 1985), cert. denied,

476 U.S. 1159 (1986).11 Any argument to the contrary, therefore,

is a nonstarter.

Wrapping It Up

As attractive as it often is to resolutely pursue a

certain position--especially one so wholeheartedly believed in--

the more appropriate approach is sometimes to simply let sleeping

dogs lie--particularly where, as here, the law mandates it.

Affirmed.

11 While both parties briefed the issue, we need not venture
into the murky world of whether the GCA correctly applied Section
148B's test in concluding Depianti was not an employee of Jan-Pro.
Because res judicata dictates the outcome here, no more is needed.

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