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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12779
Non-Argument Calendar
____________________
LOUIS MATTHEW CLEMENTS,
Plaintiff-Appellant,
versus
3M ELECTRONIC MONITORING,
Defendant-Appellee.
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2 Opinion of the Court 21-12779
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:16-cv-00776-SPC-NPM
____________________
____________________
No. 21-12782
Non-Argument Calendar
____________________
LOUIS MATTHEW CLEMENTS,
Plaintiff-Appellant,
versus
DAY PITNEY LLP et al.,
Defendants,
APAX PARTNERS LLP,
ATTENTI US. INC.,
3M,
MIKE ROMAN,
In his official capacity as CEO of 3M,
ANDREW SILLITOE,
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21-12779 Opinion of the Court 3
In his official capacity as Co-CEO of
Apax Partners LLP,
MITCH TRUWIT,
In his official capacity as Co-CEO of
Apax Partners LLP,
Defendants-Appellees.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cv-00310-JES-MRM
____________________
Before WILSON, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
While plaintiff Louis Clements was on probation in Florida,
he was required to use electronic monitoring equipment supplied
by 3M Electronic Monitoring (“3M EM”). According to Clements,
the monitoring equipment was defective and repeatedly alerted
law enforcement that he was in violation of the terms of his proba-
tion when no violation had occurred. Because of the defective
equipment, Clements says, he was arrested for violating the terms
of his probation and spent 241 days in jail.
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4 Opinion of the Court 21-12779
Clements, proceeding pro se, has filed two lawsuits seeking
damages for the injuries he allegedly sustained as a result of using
the defective electronic monitoring equipment. In the first lawsuit
(“Clements I”), Clements sued 3M EM, asserting products liability
claims. Although the complaint in Clements I was dismissed with
prejudice several years ago, Clements recently filed motions under
Federal Rule of Civil Procedure 60(b), arguing that the district
court’s judgment in that case was void because the court lacked
subject matter jurisdiction. The district court denied these mo-
tions, concluding that the judgment was not void because the court
had subject matter jurisdiction.
In the second lawsuit (“Clements II”), Clements sued several
other entities and individuals, bringing products liability and other
claims related to the allegedly defective equipment. The district
court dismissed the complaint in Clements II, concluding that it
lacked personal jurisdiction over some of the defendants and that
the claims against the remaining defendants were barred by claim
preclusion arising from Clements I.
In these consolidated appeals, Clements challenges the dis-
trict court’s orders in Clements I denying his Rule 60(b) motions
and the district court’s orders in Clements II dismissing his claims.
After careful consideration, we affirm.
I.
In this section, we describe the proceedings in each case. We
begin by discussing the claims in Clements I and the district court’s
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21-12779 Opinion of the Court 5
order dismissing those claims with prejudice. Then, we address the
claims in Clements II and the district court’s orders dismissing the
claims against some defendants without prejudice, for lack of per-
sonal jurisdiction, and the claims against other defendants with
prejudice, based on claim preclusion. We conclude this section by
returning to Clements I and describing Clements’s recent motions
arguing that the judgment in that case is void.
A.
Several years after the electronic monitoring ended, Clem-
ents filed the lawsuit in Clements I. He brought products liability
claims under Florida law against 3M EM and sought more than $14
million in damages. Clements alleged that he was a citizen of Flor-
ida and 3M EM was a citizen of Minnesota.
3M EM filed a motion to dismiss. It argued that the com-
plaint should be dismissed because (1) Clements’s claims were
barred by the statute of limitations and (2) the complaint failed to
state a claim for relief because it did not allege that Clements or his
property suffered any tangible, physical harm. The district court
granted the motion to dismiss, concluding that it was apparent
from the face of the complaint that the claims were time barred,
and dismissed the complaint with prejudice.
Clements appealed. While the appeal was pending, 3M
Company, 3M EM’s parent, sold 3M EM, and the company was
renamed Attenti US, Inc. 3M EM filed a motion in this Court seek-
ing to substitute Attenti as the appellee. We granted the motion.
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6 Opinion of the Court 21-12779
After substituting Attenti as appellee, we affirmed the dis-
trict court on the ground that Clements failed to state a claim for
relief. We explained that under Florida law, to prevail on his prod-
ucts liability claims, Clements had to establish physical harm to his
person or property. Because the complaint did not allege that
Clements suffered any such harm, we held that he failed to state a
claim for relief. See Clements v. Attenti US, Inc., 735 F. App’x 661
(11th Cir. 2018) (unpublished).
B.
About two years later, Clements filed the Clements II law-
suit, again alleging that the electronic monitoring equipment he
used while on probation was defective and erroneously caused him
to be arrested and incarcerated. He sued Attenti; 3M Company;
and 3M Company’s chief executive officer, Mike Roman. He also
named Apax, a British private equity firm, and its co-chief executive
officers, Mitch Truwit and Andrew Sillitoe, as defendants. Clem-
ents alleged that Apax acquired Attenti from 3M Company. He
brought a variety of products liability and other claims against the
defendants.
The defendants moved to dismiss the complaint. Apax, Silli-
toe, and Truwit moved to dismiss based on a lack of personal juris-
diction. Apax submitted a declaration from one of its partners stat-
ing that Apax was based in England and had never owned 3M EM
or Attenti. The declaration also stated that Apax had no connec-
tions to Florida and had not engaged in or carried on any business
in the state.
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Sillitoe and Truwit also submitted declarations showing that
they had no connections in Florida. The declarations explained that
Sillitoe lived and worked in the United Kingdom and that Truwit
lived in Connecticut and worked in New York. Both Sillitoe and
Truwit denied having any residential or business ties to Florida.
Clements responded to the motions to dismiss. In the re-
sponses, he submitted no evidence to support his position that the
court had personal jurisdiction over Apax, Sillitoe, or Truwit, and
he did not move or ask that the district court allow him to conduct
discovery related to jurisdiction.
3M Company, Attenti, and Roman moved to dismiss based
on claim preclusion. They argued that the dismissal order in Clem-
ents I barred the claims in Clements II.
The district court granted the motions to dismiss. The court
dismissed the claims against Apax, Sillitoe, and Truwit without
prejudice for lack of personal jurisdiction. The court explained that
Clements had made only “vague and conclusory allegations” re-
garding jurisdiction, whereas Apax, Sillitoe, and Truwit had come
forward with evidence showing that they had no connections to
Florida or the electronic monitoring equipment at issue. Clements
II, Doc. 101 at 11–12. 1 The district court dismissed the claims
1 Citations in the form of “Clements I, Doc.” numbers refer to the district
court’s docket entries in Clements I. Citations in the form of “Clements II,
Doc.” numbers refer to the district court’s docket entries in Clements II.
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8 Opinion of the Court 21-12779
against 3M, Attenti, and Roman with prejudice based on claim pre-
clusion. Clements appealed.
C.
After the district court entered the order in Clements II dis-
missing the claims against 3M Company, Attenti, and Roman,
Clements filed a Rule 60(b) motion in Clements I. He argued that
the judgment in Clements I, which dismissed his claims with prej-
udice, was void because the district court lacked subject matter ju-
risdiction. He acknowledged that his complaint alleged that there
was complete diversity of citizenship because he was a citizen of
Florida and 3M EM was a citizen of Minnesota. But he contended
that he recently learned that 3M EM had its principal place of busi-
ness in Florida at the time he filed the complaint. To support his
position, Clements pointed to a statement from an Attenti em-
ployee reporting that the company’s principal place of business was
Florida.
The district court denied Clements’s Rule 60(b) motion. The
court explained that the relevant inquiry was whether “[d]iversity
. . . exist[ed] at the time of filing” of the complaint and that any
subsequent change to 3M EM’s citizenship was “irrelevant.” Clem-
ents I, Doc. 85 at 4 (internal quotation marks omitted). Although
Attenti had moved its principal place of business to Florida, the
court found that Clements had not called into doubt that, at the
time the complaint was filed, 3M’s principal place of business was
Minnesota. Because there was subject matter jurisdiction, the court
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21-12779 Opinion of the Court 9
concluded that the judgment dismissing Clements’s claims with
prejudice was not void.
After the district court denied the motion, Clements filed an-
other motion making the same argument: that the district court’s
judgment was void because the court lacked subject matter juris-
diction. The district court again denied the motion. Clements ap-
pealed.
II.
We review de novo a dismissal for lack of personal jurisdic-
tion. Madara v. Hall,
916 F.2d 1510, 1514 (11th Cir. 1990). We re-
view a district court’s denial of jurisdictional discovery for abuse of
discretion. United Techs. Corp. v. Mazer,
556 F.3d 1260, 1280 (11th
Cir. 2009).
We review de novo a district court’s application of the doc-
trine of claim preclusion. See Griswold v. Cnty. of Hillsborough,
598 F.3d 1289, 1292 (11th Cir. 2010).
“We review de novo a district court’s ruling upon a Rule
60(b)(4) motion to set aside a judgment as void, because the ques-
tion of the validity of a judgment is a legal one.” Baragona v. Ku-
wait Gulf Link Transp. Co.,
594 F.3d 852, 854 (11th Cir. 2010) (al-
teration adopted) (internal quotation marks omitted).
We liberally construe the pleadings of pro se litigants. See
Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998).
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10 Opinion of the Court 21-12779
III.
Clements raises three issues on appeal. First, he argues that
in Clements II the district court had personal jurisdiction over
Apax, Sillitoe, and Truwit, and thus the court erred in dismissing
the claims against these defendants. Second, he argues that his
claims in Clements II against 3M Company, Attenti, and Roman
were not barred under the doctrine of claim preclusion. Third, he
argues that the judgment in Clements I is void because the district
court lacked subject matter jurisdiction. We address each issue in
turn.
A.
We begin with whether the district court in Clements II
erred in dismissing Clements’s claims against Apax, Sillitoe, and
Truwit for lack of personal jurisdiction. In a diversity case, a court
has personal jurisdiction over a non-resident defendant if “(1) the
state’s long-arm statute provides jurisdiction, and (2) the exercise
of such jurisdiction comports with the Due Process Clause of the
Fourteenth Amendment.” Tufts v. Hay,
977 F.3d 1204, 1211 (11th
Cir. 2020).
On appeal, Clements does not challenge the district court’s
conclusion that, based on the record before it, the court lacked per-
sonal jurisdiction. He instead takes a difference tack and says that
the district court should have afforded him an opportunity to con-
duct jurisdictional discovery to establish that Apax, Sillitoe, and
Truwit in fact had contacts with Florida.
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21-12779 Opinion of the Court 11
As a general matter, a “plaintiff should be given the oppor-
tunity to discover facts that would support his allegations of juris-
diction.” Majd-Pour v. Georgiana Cmty. Hosp., Inc.,
724 F.2d 901,
903 (11th Cir. 1984). But a district court does not abuse its discre-
tion in dismissing an action for lack of personal jurisdiction when
the plaintiff failed to diligently pursue such discovery. See United
Techs. Corp.,
556 F.3d at 1280–81 (concluding that district court
did not abuse its discretion in dismissing plaintiff’s claims for lack
of personal jurisdiction when the plaintiff never filed a motion re-
questing jurisdictional discovery or took other “reasonable steps to
seek discovery”); Posner v. Essex Ins. Co.,
178 F.3d 1209, 1214 n.7
(11th Cir. 1999) (concluding that plaintiffs failed to act with dili-
gence when there was “only [an] allusion to jurisdictional discov-
ery” in their response to the motion to dismiss and the plaintiffs
never informed the court “what they thought could or should be
discovered”).
Here, the district court did not abuse its discretion in dis-
missing the claims against Apax, Sillitoe, or Truwit because Clem-
ents did not diligently pursue jurisdictional discovery. Even after
liberally construing Clements’s filings, we do not see any indication
in the record that he ever asked the district court to permit him to
conduct jurisdictional discovery. He filed no motion asking for ju-
risdictional discovery and did not mention the need to conduct ju-
risdictional discovery in any of his responses to the motions to dis-
miss filed by Apax, Sillitoe, or Truwit. In these circumstances, we
cannot say that the district court abused its discretion in dismissing
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12 Opinion of the Court 21-12779
for lack of personal jurisdiction the claims against these three de-
fendants.
B.
We next consider whether the district court erred in dismiss-
ing Clements’s claims in Clements II against Attenti, 3M Company,
and Roman as barred by the doctrine of claim preclusion.
The doctrine of claim preclusion, sometimes referred to as
res judicata, forecloses the “relitigation of matters that were liti-
gated or could have been litigated in an earlier suit.” I.A. Durbin,
Inc. v. Jefferson Nat’l Bank,
793 F.2d 1541, 1549 (11th Cir. 1986).
Claim preclusion bars a subsequent lawsuit when four elements are
present: “(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, or those in privity with them, must be identical in both
suits; and (4) the same cause of action must be involved both
cases.”
Id.
The district court correctly concluded that claim preclusion
barred Clements’s claim because the four elements were satisfied
here. 2 First, there was a final judgment on the merits in Clements
2 Clements argues that we should look to Florida state law to decide whether
claim preclusion applies. He points to the Supreme Court’s decision in Semtek
International Inc. v. Lockheed Martin Corp., which held that “federal com-
mon law governs the claim-preclusive effect of a dismissal by a federal court
sitting in diversity,” and that federal common law should be derived from “the
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I. In that case, we affirmed the dismissal with prejudice of Clem-
ents’s complaint because he failed to state a claim for relief. It is
well established that a dismissal for failure to state a claim for relief
is considered a final judgment on the merits for purposes of claim
preclusion. See NAACP v. Hunt,
891 F.2d 1555, 1560 (11th Cir.
1990).
Second, the judgment in Clements I was entered by a court
of competent jurisdiction. As we explain in more detail below in
Part III-C, the district court in that case had subject matter jurisdic-
tion because there was diversity of citizenship at the time the law-
suit was filed.
law that would be applied by state courts in the State in which the federal
diversity court sits.”
531 U.S. 497, 508 (2001).
Admittedly, our jurisprudence on whether, when reviewing claim preclusion
issues, we apply state or federal law in cases involving diversity jurisdiction
has a convoluted and contradictory history. See CSX Transp., Inc. v. General
Mills, Inc.,
846 F.3d 1333, 1335, 1338–40 (11th Cir. 2017) (clarifying “discord-
ant” case law on “whether federal common law borrows the doctrine of col-
lateral estoppel as defined by state law, or applies the doctrine only as defined
by federal law, to determine the preclusive effect of an earlier judgment of a
federal court that exercised diversity jurisdiction” in light of the Supreme
Court’s holding in Semtek (citations omitted)). Fortunately, we need not re-
solve whether federal common law borrows from state law here, as we have
recognized that “[a] comparison between Florida rules and federal rules gov-
erning claim . . . preclusion reveals that the relevant principles are largely iden-
tical.” SFM Holdings, Ltd. v. Banc of Am. Sec., LLC,
764 F.3d 1327, 1337 (11th
Cir. 2014) (collecting and comparing Florida and Eleventh Circuit preclusion
cases). Under either federal or Florida law, we would conclude that claim pre-
clusion barred Clements’s claims.
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Third, we conclude that the two lawsuits involved identical
parties or those in privity with them. “Privity is a flexible legal
term, comprising several different types of relationships and gener-
ally applying when a person, although not a party, has his interests
adequately represented by someone with the same interests who is
a party.” EEOC v. Pemco Aeroplex, Inc.,
383 F.3d 1280, 1286 (11th
Cir. 2004) (internal quotation marks omitted). Clements was a
party to both lawsuits—he was the plaintiff in both cases. 3M EM
was a defendant in Clements I, and its successor, Attenti, was a de-
fendant in Clements II. Even assuming the two entities were not
identical, Attenti had the same interests as 3M EM, and its interests
were adequately protected by its predecessor, 3M EM. Likewise,
3M Company and its CEO Roman had the same interests as 3M
Company’s subsidiary 3M EM, and 3M EM adequately represented
their interests.
Fourth, the two cases involved the same cause of action. To
determine whether the same causes of action are present, we “look
to the factual issues to be resolved in the second cause of action,
and compare them with the issues explored in the first cause of ac-
tion.” Citibank, N.A. v. Data Lease Fin. Corp.,
904 F.2d 1498, 1503
(11th Cir. 1990) (alteration adopted) (internal quotation marks
omitted). “[I]f a case arises out of the same nucleus of operative fact
. . . as a former action, [then] the two cases are really the same claim
or cause of action for purposes of” claim preclusion.
Id. (internal
quotation marks omitted). This test requires a court to “compare
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21-12779 Opinion of the Court 15
the substance of the actions, not their form.”
Id. (internal quotation
marks omitted).
Here, a comparison of the substance of Clements I and
Clements II shows that they involved the same causes of actions.
The two cases arose out of the same nucleus of operative facts. In
each case, Clements alleged that the defendants provided him with
defective electronic monitoring equipment, which caused his ar-
rest and incarceration.
Clements argues that the two cases did not involve the same
nucleus of operative facts because, he says, some of the claims in
Clements II arise out of “new occurrences” from the period after
the complaint in Clements I was filed. Appellant’s Br. at 26. But the
record does not support his position. Just like in Clements I, all of
the claims in Clements II arose from the harm that Clements expe-
rienced when he was provided with the defective electronic moni-
toring equipment while on probation. Because the claims in both
cases arose from the same nucleus of operative facts, we conclude
that the two lawsuits involved the same causes of action.
All four elements of claim preclusion were present; there-
fore, the district court did not err in dismissing the claims against
Attenti, 3M Company, and Roman.3
3 On appeal, Clements raises one other issue related to Clements II. He argues
that the district court judge should have sua sponte recused himself, accusing
the district court judge of having acted in “bad faith” and being biased against
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C.
Clements also argues that the district court erred in denying
his motions to vacate as void the judgment dismissing his claims
with prejudice in Clements I. He argues that the judgment was
void because the district court lacked subject matter jurisdiction.
Federal Rule of Civil Procedure 60(b)(4) provides that a dis-
trict court may relieve a party from a final judgment or order that
is void. A judgment is “void” under Rule 60(b)(4) “if the court that
rendered it lacked jurisdiction of the subject matter, or of the par-
ties, or if it acted in a manner inconsistent with due process of law.”
Burke v. Smith,
252 F.3d 1260, 1263 (11th Cir. 2001) (internal quo-
tation marks omitted). Here, Clements argues only lack of subject
matter jurisdiction.
A district court has subject matter jurisdiction over all civil
actions where (1) the suit is between citizens of different states and
(2) the amount in controversy exceeds $75,000. See
28 U.S.C.
§ 1332(a)(1). In assessing whether a suit is between citizens of
him. Appellant’s Br. at 39. A judge must sua sponte recuse himself “in any
proceeding in which his impartiality might reasonably be questioned,” or
“[w]here he has a personal bias or prejudice concerning a party.”
28 U.S.C.
§ 455(a), (b)(1). “The test is whether an objective, disinterested, lay observer
fully informed of the facts underlying the grounds on which recusal was
sought would entertain a significant doubt about the judge’s impartiality.”
Parker v. Connors Steel Co.,
855 F.2d 1510, 1524 (11th Cir. 1988). After care-
fully reviewing the record, we cannot say that an objective, disinterested, lay
observer would have had doubts about the district court judge’s impartiality.
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21-12779 Opinion of the Court 17
different states, we look at the “the citizenship of the parties . . .
with reference to the facts as they existed at the time of filing.”
Grupo Dataflux v. Atlas Global Grp., L.P.,
541 U.S. 567, 569–70
(2004).
We conclude that the judgment in Clements I was not void
because the court had subject matter jurisdiction. The lawsuit was
between citizens of different states. 4 At the time the lawsuit was
filed, Clements was a citizen of Florida, and 3M EM was a citizen
of Minnesota. The record reflects that, after the complaint was
filed, 3M EM was sold, and its successor became a citizen of Florida.
But the relevant question is 3M EM’s citizenship “at the time of
filing” the complaint. See
id. Because 3M EM was not a citizen of
Florida at that time, the district court had subject matter jurisdic-
tion. The judgment in Clements I was not void, so the district court
properly denied Clements’s Rule 60(b) motions.5
4 There is no dispute that the amount in controversy requirement was satis-
fied because Clements sought well over $75,000.
5 Clements also suggests that the judgment in Clements I was void for other
reasons, including that before entering the judgment the district court improp-
erly took judicial notice of facts related to Clements’s criminal case and failed
to afford him an opportunity to amend his complaint. Because the district
court had “jurisdiction of the subject matter, or of the parties” and did not act
“in a manner inconsistent with due process of law,” the judgment was not
void. See Burke, 252 F.3d at 1263 (internal quotation marks omitted).
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18 Opinion of the Court 21-12779
IV.
For the reasons discussed above, we affirm. 6
AFFIRMED.
6 Also pending is Clements’s Motion for Leave to File Supplemental Brief. The
motion is DENIED.
