Henry Ray Campbell v. Advance Core Concepts LLC

USCA11 Case: 21-11648 Date Filed: 01/04/2022 Page: 1 of 6 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-11648 Non-Argument Calendar ____________________ HENRY RAY CAMPBELL, Plaintiff-Appellant, versus ADVANCED CORE CONCEPTS LLC, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 5:20-cv-00360-MTT ____________________ USCA11 Case: 21-11648 Date Filed: 01/04/2022 Page: 2 of 6 2 Opinion of the Court 21-11648 Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges. PER CURIAM: Henry Ray Campbell, proceeding pro se, appeals the district court’s judgment in favor of his former employer, Advanced Core Concepts LLC (ACC). The district court concluded that the unsuc- cessful resolution of Campbell’s earlier case against ACC barred his new claim under the doctrine of res judicata. On appeal, Campbell argues that the manifest injustice exception to res judicata should apply to allow his claim against ACC under the Defense Contractor Whistleblower Protection Act, 10 U.S.C. § 2409, to proceed. Upon review, we affirm. I. We provide a brief overview of the facts relevant to this ap- peal. On November 26, 2018, Campbell sued ACC alleging employ- ment discrimination and retaliation in violation of the Age Discrim- ination in Employment Act, 29 U.S.C. § 623. The district court granted summary judgment for ACC. Four days later, Campbell filed the instant lawsuit again alleging wrongful termination but this time claiming that ACC retaliated against him under Section 2409. The district court dismissed Campbell’s claim with prejudice, and he timely appealed. USCA11 Case: 21-11648 Date Filed: 01/04/2022 Page: 3 of 6 21-11648 Opinion of the Court 3 II. We review de novo a district court’s dismissal of a complaint based on res judicata. Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000). We also review de novo a district court’s grant of summary judgment, using the same legal standards ap- plied by the district court. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). A pro se party abandons an issue, how- ever, by failing to argue it in his brief by making only passing or conclusory references to an argument. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the mo- vant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In determining whether the movant has met this burden, courts must view the evidence in the light most favorable to the non-movant. Alvarez, 610 F.3d at 1263–64. We may take judicial notice of a prior case’s docket in determining whether res judicata applies. See Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 892–93 (11th Cir. 2013); see also ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 n.2 (5th Cir. Unit B 1981) (“A court may . . . take ju- dicial notice of its own records or of those of inferior courts.”). III. Res judicata, or claim preclusion, “‘will bar a subsequent ac- tion if: (1) the prior decision was rendered by a court of competent USCA11 Case: 21-11648 Date Filed: 01/04/2022 Page: 4 of 6 4 Opinion of the Court 21-11648 jurisdiction; (2) there was a final judgment on the merits; (3) the parties were identical in both suits; and (4) the prior and present causes of action are the same.’” Jang, 206 F.3d at 1149 (quoting Is- rael Disc. Bank, Ltd. v. Entin, 951 F.2d 311, 314 (11th Cir. 1992)). “[I]f 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 are really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999) (citation omitted). “Importantly, this bar pertains not only to claims that were raised in the prior action, but also to claims that could have been raised previously.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003) (inter- nal citation omitted). The Supreme Court “has cautioned against departing from accepted principles of res judicata.” Griswold v. Cnty. of Hills- borough, 598 F.3d 1289, 1294 (11th Cir. 2010) (citing Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981)). In Griswold, we found that even if a “manifest injustice” exception were to exist, the application of res judicata would not be unjust because the ap- pellant could have advanced his claims during his control of the prior litigation and thus had already had his day in court. Griswold, 598 F.3d at 1294. Even liberally construing Campbell’s brief, he fails to argue that the district court erred in determining that res judicata barred his second suit. Instead, his argument focuses on the merits of his claims against ACC and never engages the elements of res judicata, including whether the cause of action from his previous suit was USCA11 Case: 21-11648 Date Filed: 01/04/2022 Page: 5 of 6 21-11648 Opinion of the Court 5 different from the instant one. Timson, 518 F.3d at 874; Sapuppo, 739 F.3d at 682. Accordingly, Campbell has abandoned any chal- lenge to the district court’s determination as to res judicata. Even if Campbell had not abandoned this argument, it would fail on the merits. The district court correctly determined that res judicata barred Campbell’s claim because it arose from the same nucleus of operative fact as his prior claim. In other words, both claims were based on the same factual predicate—ACC’s ad- verse employment actions. And the parties do not dispute that the prior decision was rendered by a court of competent jurisdiction, there was a final judgment on the merits, and the parties were iden- tical in both suits. On appeal, Campbell argues that the “manifest injustice” exception to res judicata should apply. But even assum- ing such an exception exists, Campbell provides no compelling rea- son for applying it here. As the district court pointed out, Campbell could have brought his whistleblower retaliation claim by amend- ing his complaint in the initial suit, but he instead waited until shortly after that suit was resolved to file a new lawsuit. Finally, we note that ACC has moved for litigation sanctions pursuant to Federal Rule of Appellate Procedure 38. But we are re- luctant to impose Rule 38 sanctions on pro se appellants unless they have been explicitly warned that that their claims were frivolous. See United States v. Morse, 532 F.3d 1130, 1133 (11th Cir. 2008). Because Campbell was not so warned, we deny ACC’s motion. By denying sanctions for Campbell’s actions on appeal, we do not mean to prejudge whether the district court could or should im- pose sanctions based on his actions in that court. USCA11 Case: 21-11648 Date Filed: 01/04/2022 Page: 6 of 6 6 Opinion of the Court 21-11648 IV. For the foregoing reasons, we AFFIRM the district court’s judgment and DENY ACC’s motion for sanctions.