[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 31, 2005
No. 04-13750 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80218-CV-JCP
PEPI SCHAFLER, Dr.,
Plaintiff-Appellant,
versus
INDIAN SPRING MAINTENANCE ASSOCIATION AND EACH
INDIVIDUAL MEMBER OF THE BOARD, et. al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 31, 2005)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Pepi Schafler appeals pro se the district court’s dismissal of her civil
diversity complaint, which was brought pursuant to 28 U.S.C. § 1332, as barred by
the doctrine of res judicata. Although the district court erred by not applying the
federal law of res judicata, the error was harmless in light of the fact that
Schafler’s claim met all of the federal requirements of res judicata. Accordingly,
we AFFIRM.
I. BACKGROUND
Schafler, a California citizen, filed the instant complaint against the
following Florida citizens: (1) Indian Springs Maintenance Association (“ISMA”),
and unknown members of its board; (2) unknown participants in the “trash and
defame sessions;” (3) Fairway Park Condominium Association (“FPCA”), and
unknown members of its board; and (4) the law firm of Nason, Yeager, Gerson,
White, and Licoce, P.A. (“Firm”). R1-1 at 1-2. Schafler alleged that she owned,
and annually placed on the rental market, a condominium in Boynton Beach,
Florida, that was part of the Fairway Park development, which ISMA managed.
Schafler alleged that ISMA (1) wrongfully spent association fees that it received
from its members, (2) failed to provide its members with annual financial
statements, as required by law, and (3) harassed Schafler when she attempted to
obtain these records. She further contended that ISMA harassed her by blocking
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access to her apartment with construction. Next, she alleged that, for the past
several years, ISMA’s periodic association meetings had been a “‘trashing orgy, . .
. during which [she] was discussed and ridiculed, insulted, trashed, intending to
defame, slander, and present [her] in a false light.” Id. at 4-5. Schafler also alleged
that ISMA: (1) embezzled and wrongly converted her association fees; (2) falsely
claimed that she had not paid her fees and then “gave themselves permission to
trespass to and occupy [her] real property;” and (3) kept track of her presence on
the property. Id. at 5-7. Schafler further alleged that FPCA (1) violated Florida
law by failing to provide her with financial statements, (2) converted or embezzled
her funds, (3) falsely alleged that she had failed to pay her association fees, and (4)
trespassed on her property. She next contended that the Firm was a “paid
enabler[],” and aided and abetted FPCA and ISMA in their wrongdoings. Id. at 8-
9. Finally, she claimed that all three defendants (1) were involved in a civil
conspiracy, (2) made false allegations against her, and (3) intentionally caused her
to suffer emotional distress. Schafler sought, inter alia, damages exceeding
$5,000,000.
FPCA filed a motion to dismiss, in which it argued, inter alia, that, because
Schafler had filed actions arising from the same factual situations on a yearly basis
against the same defendants, her complaint was barred by the doctrine of res
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judicata. According to FPCA (1) Schafler had filed at least two prior lawsuits
seeking the same or similar relief against the same defendants, (2) the lawsuits
arose out of the same set of facts, and res judicata also precludes consideration of
issues that could have been raised, but were not, in the previous lawsuits, and (3)
the parties were identical. The Firm and ISMA filed substantially similar motions.
The defendants attached copies of Schafler’s previous lawsuits to their
motions to dismiss. These materials show that Schafler previously filed a lawsuit
in state court against ISMA, which was dismissed without prejudice for lack of
prosecution on 26 February 2003. See R1-8 at exhibit A. They also show that
Schafler filed a diversity lawsuit, pro se, on 12 February 2002, in the Southern
District of Florida against FPCA, ISMA, the associations’ individual board
members, the Firm, and its counsel. This lawsuit concerned Schafler’s ownership
of a condominium, in the Fairway Park complex, and her central allegation was
that the defendants interfered with her business relationship with her tenants.
There, the district court granted the defendants’ motion to dismiss, finding that (1)
Schafler’s complaint failed to state a claim of tortious interference with a business
relationship, civil conspiracy, trespass to chattel, extortion, defamation, or legal
malpractice, and (2) no facts would support a jury award of punitive damages
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sufficient to meet the threshold for diversity jurisdiction. We affirmed. Id. at
exhibit C.
In the instant case, Schafler filed two amended complaints that did not
substantially differ from her original complaint. R1-11, 16. She also filed a reply
to the defendants’ motions to dismiss, arguing, inter alia, that the defendants’
contention that her claims were barred by the doctrine of res judicata was
erroneous, since the Supreme Court, in Commissioner v. Sunnen, 333 U.S. 591,
598-99, 68 S.Ct. 715, 719-20, 92 L.Ed. 898 (1948), held that collateral estoppel
has no bearing on a situation where the legal matters determined in a previous case
differ even slightly from those raised in the second case. She also argued that,
under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938),
the defendants’ reliance on state and local law was erroneous.
The district court dismissed Schafler’s amended complaint with prejudice
pursuant to the doctrine of res judicata. R1-23 at 3-4.1 Taking judicial notice of
the orders issued in Schafler’s previous lawsuits, the court found that all four of
Florida’s requirements of res judicata were met because Schafler had filed two or
more prior lawsuits, arising out of the same set of facts, with some complaints
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The court noted that, although it was dismissing Schafler’s complaint on the basis of res
judicata, upon a cursory review of the merits, it felt that failure to state a claim would probably “be
an alternative method to dismissal.” R1-23 at 4 n.5.
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repeated verbatim, that sought the same or similar relief against the same
defendants. Id. at 3-4. The court warned Schafler that her behavior bordered on
being “vexatious” and cautioned her against reasserting her claims against these
defendants. Schafler filed a motion for reconsideration, alleging that the district
court’s decision was based on “falsehoods and deceit,” and bias, which the district
court denied. R1-24, 26.
II. DISCUSSION
On appeal, Schafler concedes that she brought a “similar” claim in February
2002 against these defendants, but argues that the district court erred by not
applying the doctrine of “repeated offense and offender.” Appellant Brief at 2, 24-
25. She argues that, since the defendants prevented her from renting her property
during December 2001, which provided the basis for her 2002 lawsuit, they have
continued to prevent her from renting her property, and such subsequent harms are
not barred from adjudication by res judicata. Additionally, she argues that her
prior lawsuit was not a final judgment on the merits, since it was dismissed for lack
of subject-matter jurisdiction, and therefore one of the requirements for res
judicata remains unmet. She also contends that the district court, under Erie,
should not have applied Florida law. She further argues that the district court’s
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decision violated due process and equal protection by denying her the right to an
unbiased court. Schafler also argues the merits of her claims.
As a preliminary matter, “[w]hen a prior action is brought in diversity in
federal court, the federal law of res judicata governs in a second suit brought in
diversity.” Commercial Box & Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 373
(5th Cir. 1980). Therefore, to the extent that the district court applied Florida law
to determine whether Schafler’s prior federal litigation barred the instant claim, it
erred. Nonetheless, the error appears harmless because Schafler’s complaint would
also be barred by res judicata under federal law.
Res judicata is a legal determination that we review de novo. Jang v. United
Technologies Corp., 206 F.3d 1147, 1149 (11th Cir. 2000). “Res judicata bars the
filing of claims which were raised or could have been raised in an earlier
proceeding.” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).
An action is barred by prior litigation if all of “the following elements are present:
(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.”
Id. It is well-settled that a dismissal for lack of subject matter jurisdiction “is not
an adjudication on the merits that would give rise to a viable res judicata defense.”
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Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1188 (11th Cir. 2003), cert. denied,
540 U.S. 1016 (2003). We have observed:
[that w]e do not believe that the res judicata preclusion of claims that
‘could have been brought’ in earlier litigation includes claims which
arise after the original pleading is filed in the earlier litigation.
Instead, [this Court] believe[s] that, for res judicata purposes, claims
that ‘could have been brought’ are claims in existence at the time the
original complaint is filed or claims actually asserted . . . in the earlier
action . . . The underlying core of facts must be the same in both
proceedings.
In re Piper Aircraft Corp., 244 F.3d 1289, 1298-1301 (11th Cir. 2001) (internal
quotations and citations omitted).
Because all of the federal requirements for res judicata are met, the district
court correctly found that Schafler’s February 2002 lawsuit barred the instant
complaint. First, the district court’s 2002 order was effectively a final judgment on
the merits. In that case, the district court fully analyzed the merits of Schafler’s
case and found that it failed to state a claim for relief. See R1-8 at exh. B. The
court then noted that, because Schafler failed to allege any facts that would entitle
her to relief, no reasonable jury could determine that she was entitled to damages
that would meet the jurisdictional amount, and dismissed the claim as also lacking
subject-matter jurisdiction. In Davila, where the district court reached the merits
of the case and then found that subject-matter jurisdiction was lacking, we held that
the decision was on the merits, noting that “if the district court truly had dismissed
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the case for lack of subject matter jurisdiction it could not legitimately have
reached the merits of [the plaintiff’s] contentions.” Davila, 326 F.3d at 1188-89.
Likewise, here, the district court’s determination that Schafler’s claims lacked
merit was the basis for its discussion of subject-matter jurisdiction. Therefore,
Schafler’s February 2002 lawsuit was a final judgment on the merits.
Next, the U.S. District Court for the Southern District of Florida was a court
of competent jurisdiction over this case, pursuant to 28 U.S.C. § 1332, assuming
that the jurisdictional amount was met. Additionally, it is clear that the parties in
the suits were identical, so the third requirement is met.
The final requirement for res judicata was also met in this case. Although
the specific claims in each case differed somewhat, both suits involved tort claims
for damages against these three defendants regarding Schafler’s ownership of a
particular condominium. See R1-1, 8 at Exh. B, C. A careful reading of
Schafler’s complaint shows that all of her instant claims could have been raised in
her February 2002 lawsuit. See Davila, 326 F.3d at 1187. The instant suit
involved two main complaints: (1) mismanagement of association fees; and (2)
harassment and mistreatment of Schafler. See R1-1. There is no evidence in the
record to suggest that these claims were not in existence at the time of her original
action. See In re Piper Aircraft Corp., 244 F.3d at 1299. Regarding the
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defendants’ management of association fees, Schafler’s complaint contained no
dates and referred to “annual audited financial statement[s]” that were not
delivered, suggesting that she allegedly had not been receiving her statements for
some time. See R1-1 at 3-4. Regarding the harassment claims, her complaint
referred to “trashing” that had occurred for several years during ISMA’s periodic
association meetings, and otherwise failed to orient temporally any of the other
alleged harassment. See id. at 1-10. Both Schafler’s complaint and briefs on
appeal contain extremely general allegations that fail to aver that these claims arose
after her previous lawsuit or to clarify exactly when they arose. Therefore, because
it appears that Schafler’s claims were in existence at the time of her previous
lawsuit, and she fails to show otherwise, the fourth requirement for res judicata
was met.
II. CONCLUSION
Schafler’s arguments on appeal are without merit. She offers no legal
support for her contention that continuing conduct is not barred by the doctrine of
res judicata. Additionally, there is no evidence in the record to support her
allegations of bias, and the record shows that she did not file a motion for recusal.
Accordingly, the district court correctly concluded that the instant complaint was
barred by the doctrine of res judicata. Because we affirm the district court’s order
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on res judicata grounds, we need not consider the defendants’ contention that
Schafler’s brief violated the Federal Rules of Appellate Procedure. Accordingly,
we AFFIRM.
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