John Hodges v. Publix Super Markets, Inc. , 372 F. App'x 74 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14591 ELEVENTH CIRCUIT
APRIL 7, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-01206-CV-T-23-EAJ
JOHN HODGES,
Plaintiff-Appellant
Cross-Appellee,
versus
PUBLIX SUPER MARKETS, INC.,
Defendant-Appellee
Cross-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(April 7, 2010)
Before HULL, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
John Hodges appeals the district court’s entry of judgment on the pleadings
for Publix Super Markets, Inc. on his discrimination claims under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12203(a), and the Florida Civil Rights
Act (“FCRA”), Fla. Stat. § 760.10(1)(a). Publix cross-appeals the district court’s
order denying its motions for attorneys’ fees and sanctions under 28 U.S.C. §
1927, 42 U.S.C. § 1988, and Federal Rule of Civil Procedure 11 (“Rule 11”).
Hodges originally filed an action in 2008 against Publix, his former
employer, for violating the Family Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601 et seq., by interfering with the lawful exercise of his FMLA rights and by
retaliating against him for asserting these rights (“Hodges I”). Both parties agreed
to the voluntary dismissal with prejudice of this claim. At some point before the
dismissal, Hodges received a right to sue letter from the Equal Employment
Opportunity Commission (“EEOC”), allowing him to sue under the ADA. Hodges
claims that the letter went directly to him, and that his counsel did not receive the
letter for another month. Thereafter, Hodges filed the present action, alleging that
Publix violated the ADA and FCRA by terminating him and subsequently refusing
to rehire him. Hodges alleged the same facts in both complaints, including
Publix’s failure to re-hire him. The district court dismissed the present action as
barred by res judicata. After Hodges filed the instant appeal, Publix moved for
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attorneys’ fees and sanctions. The district court denied Publix’s motion, and
Publix filed the instant cross-appeal. We turn first to Hodges’s appeal, and then to
Publix’s cross-appeal, and affirm on both.
I. Hodges’s Res Judicata Claims
On appeal, Hodges argues that the district court erred in its ruling that the
present action was barred by res judicata, a ruling that we review de novo.
Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999) (citation
omitted). The doctrine of res judicata bars not only claims that were actually
raised in the prior action, but also “claims that could have been raised previously.”
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003) (citation
omitted) (emphasis added). 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 1289, 1298 (11th Cir. 2001) (citation and quotations omitted).
Under the res judicata doctrine, a subsequent action is barred when four
requirements are met: (1) there must be a final judgment on the merits; (2) the
decision must be rendered by a court of competent jurisdiction; (3) the parties must
be identical in both suits; and (4) the same cause of action must be involved in both
cases. Id. at 1296. The purpose of the res judicata doctrine is that the “full and fair
opportunity to litigate protects a party’s adversaries from the expense and vexation
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attending multiple lawsuits, conserves judicial resources, and fosters reliance on
judicial action by minimizing the possibility of inconsistent decisions.” Ragsdale,
193 F.3d at 1238 (quotation and alteration omitted).
The parties only contest the fourth factor, whether Hodges I and the present
action involve the same cause of action. The principal test for determining whether
the same cause of action is involved is “whether the actions arise out of the same
nucleus of operative fact, or are based upon the same factual predicate.” Davila,
326 F.3d at 1187 (quotation and alteration omitted). A party may not split his
causes of action into parts to bring claims based on different legal theories at
different times. See id. (quotation omitted). In Davila, the plaintiff filed a
grievance pertaining to termination of his employment, which was denied. Id. at
1186. He then filed an EEOC charge alleging violations of the ADA, received a
right to sue letter, and sued for breach of contract and ADA violations based on his
termination. Id. We held that res judicata prevented the plaintiff from raising a
claim based on the same operative facts, even though his prior employment claims
were disposed of before the EEOC issued a right to sue notice on a different legal
theory. See id. at 1187–88 (quotation omitted).
The res judicata doctrine may be qualified or even rejected when its
application “would contravene an overriding public policy or result in manifest
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injustice.” Garner v. Giarrusso, 571 F.2d 1330, 1336 (5th Cir. 1978) (citation
omitted).1 However, a “party cannot escape . . . res judicata by asserting its own
failure to raise matters clearly within the scope of a prior proceeding.”
Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar.
Ass’n, 455 U.S. 691, 710 (1982).
Hodges contends that his ADA and FMLA claims do not arise out of the
same nucleus of operative fact, arguing that: (1) Hodges I challenged only his
termination, but the present action challenges only Publix’s failure to rehire him;
(2) his failure to be rehired was not an essential fact to the FMLA claim in Hodges
I, and was instead included to tell his complete story, provide background, and
offer mitigation evidence; and (3) because he has yet to adjudicate either action on
the merits, his claims fall outside res judicata’s policy to prevent “endless
litigation,” and the district court should have permitted the claim to proceed under
the manifest injustice exception.
Hodges argues that In re: Piper Aircraft Corporation is analogous to his
case. There, a creditor and another party entered into a cooperation agreement to
purchase the assets of a debtor in bankruptcy. 244 F.3d at 1292. After the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
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bankruptcy court rejected their proposed reorganization plan, the creditor aligned
itself with a new partner. Id. The aggrieved party then filed suit in state court
alleging breach of the cooperation agreement and seeking a constructive trust. Id.
at 1293. We found that res judicata did not bar the suit because the facts
underlying the second claim were not in existence at the time the first case began
and were never actually raised as the case unfolded. Id. at 1299 . Alternatively, we
found that the second claim could not have been brought in the first action because
there was no adequate procedural vehicle through which the claim could be raised.
See id. at 1303–04.
However, In re: Piper Aircraft Corporation is distinguishable from
Hodges’s case, as the facts alleged in the present case were in existence at the time
he filed Hodges I. Even further, he actually alleged the same set of facts in Hodges
I and the present action. In both complaints, Hodges alleged that he suffered two
seizures while at work, that Publix refused to reinstate him upon his return from his
second seizure, and that although he applied for “several jobs as a bagger at other
Publix locations, . . . he was never offered a position.” Hodges provides no reason
why his FMLA, ADA, and FCRA claims could not, as a procedural matter, have
been raised in his first lawsuit. Hodges could have waited to file his lawsuit until
he received his right to sue letter or he could have later amended his complaint
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before dismissal. Hodges also does not provide support for his proposition that the
overlapping facts in his two actions should be deemed material to the ADA claim,
but not to his FMLA claim.2
His argument that he should receive a manifest injustice exception is also
without merit. Accordingly, we hold that Hodges could have raised his ADA and
FCRA claims in Hodges I, and therefore the district court did not err in dismissing
the present action as barred by the doctrine of res judicata.
II. Publix’s Motions for Sanctions and Attorneys’ Fees
On cross-appeal, Publix argues that it was entitled to attorneys’ fees for the
claims that were properly dismissed on its motion for judgment on the pleadings.
Publix asserts that, under Christiansburg Garment Co. v. EEOC, 434 U.S. 412(1978), it is entitled to attorneys’ fees. It contends that Hodges’s claims were
frivolous because the district court dismissed them before trial, and Publix itself
treated the case as baseless. Publix also argues that Rule 11 required an award of
fees because Hodges failed to recognize that res judicata barred his action, even
though “the most minimal inquiry” would have made that fact apparent. Finally,
Publix asserts that, because Hodges recklessly pursued a frivolous claim, it was
2
Hodges states that he did not believe that Publix’s failure to re-hire him resulted from
his assertion of rights under FMLA. However, his ADA and FMLA complaints allege Publix’s
failure to re-hire him, and incorporate this fact into each claim.
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entitled to attorneys’ fees under 28 U.S.C. § 1927 even absent a finding that
Hodges acted in bad faith.
We review a district court’s rulings on the award of attorneys’ fees under 28
U.S.C. § 1297 and Christiansburg, and the imposition of Rule 11 sanctions, for
abuse of discretion. McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001)
(citation omitted); Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th
Cir. 1996) (citation omitted); Bruce v. City of Gainesville, Ga., 177 F.3d 949, 952
(11th Cir. 1999).
When a prevailing party in an ADA case seeks attorneys’ fees, the court
should analyze the request according to the Christiansburg standard, as it would a
similar request in a Title VII case. Bruce, 177 F.3d at 951. Under this standard, “a
district court may in its discretion award attorney’s fees to a prevailing defendant
in a Title VII case upon a finding that the plaintiff’s action was frivolous,
unreasonable, or without foundation, even though not brought in subjective bad
faith.” Christiansburg Garment Co., 434 U.S. at 421. However, “it is important
that a district court resist the understandable temptation to engage in post hoc
reasoning by concluding that, because a plaintiff did not ultimately prevail, his
action must have been unreasonable or without foundation.” Id. at 421–22.
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A claim for sanctions under 28 U.S.C. § 1927 involves, in part, two essential
requirements: (1) “the attorney must engage in unreasonable and vexatious
conduct;” and (2) the conduct must multiply the proceedings. Amlong & Amlong,
P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007). “[A]n attorney
multiplies proceedings ‘unreasonably and vexatiously’ . . . only when the
attorney’s conduct is so egregious that it is ‘tantamount to bad faith.’” Id. (citation
omitted). Bad faith, in turn, is measured objectively, and exists “where an attorney
knowingly or recklessly pursues a frivolous claim.” Id. at 1241 (quotation and
citation omitted).
Rule 11 sanctions are proper when a party files a pleading (1) “that has no
reasonable factual basis;” (2) “that is based on a legal theory that has no reasonable
chance of success and that cannot be advanced as a reasonable argument to change
existing law;” or (3) “in bad faith for an improper purpose.” McGreal, 87 F.3d at
1254 (citation omitted). A court confronted with a motion for Rule 11 sanctions
must first determine whether the claims raised are objectively frivolous and, if so,
whether the signer of the pleadings should have been aware of their frivolous
nature. Id. (citation omitted). Even if the attorney had a good faith belief that the
claims were sound, sanctions must be imposed if the attorney failed to make a
reasonable inquiry. Id. (citation omitted). A party may be sanctioned for filing
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claims barred under res judicata. Thomas v. Evans, 880 F.2d 1235, 1240 (11th Cir.
1989). However, such sanctions are not required: a party is only to be sanctioned
if it was unreasonable to bring an action at the time of filing, not merely because its
view of the law turned out to be incorrect. See id.Although Hodges ultimately lost on his argument that res judicata should not
apply, this does not necessarily render his argument frivolous, unreasonable, or
without foundation. Hodges made a reasonable argument that Hodges I challenged
only Hodges’s termination and the present action challenges only Publix’s failure
to rehire him, and that therefore the two actions did not arise out of a common
nucleus of operative fact. Because Hodges raised a cognizable argument against
the application of res judicata, he did not recklessly pursue a frivolous claim under
§ 1927. Similarly, Publix did not demonstrate, for Rule 11 purposes, that Hodges
acted with bad faith for an improper motive. Accordingly, we hold that the district
court did not abuse its discretion in denying Publix’s motions for attorneys’ fees
and sanctions.
AFFIRMED.
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