Rosana Boulhosa Nassar v. Eduardo Boulhosa Nassar , 708 F. App'x 615 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10191
Non-Argument Calendar
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D.C. Docket No. 3:14-cv-01501-MMH-MCR
ROSANA BOULHOSA NASSAR,
Plaintiff-Appellant,
versus
EDUARDO BOULHOSA NASSAR,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 18, 2017)
Before TJOFLAT, WILLIAM PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Rosana Boulhosa Nassar, pro se, appeals the dismissal of her amended
complaint and the denial of her motion for leave to file a second amended
complaint. We affirm.
I. BACKGROUND
A. Underlying Facts
According to Nassar’s amended complaint, Eduardo Boulhosa Nassar
(“Eduardo”), a Brazilian citizen and Nassar’s older brother, sexually assaulted her
when she was a child. When Nassar was an adolescent, Eduardo also violated her
privacy by entering her gynecologist’s examination room without permission while
she was being examined. In 1998, “to recover from her childhood trauma,” Nassar
wrote and published a book in Portuguese titled (as translated) “The Freeing Power
of Speech,” in which she detailed “the abuse [Eduardo] committed against her.” R.
at 1988-89.
Since the publication of Nassar’s book, Eduardo has published false
statements online regarding what she had written about him. Eduardo also accused
her of having serious psychological problems, a personality disorder, and paranoia
on those websites, which she alleged could still be viewed through internet
archives. Eduardo purchased the domain names “www.rosananassar.com” and
“www.newglobalpublishing.net” (a reference to Nassar’s publishing business, New
Global Publishing); he also published false statements on these websites.
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Since 2005, Eduardo has hired 35 private investigators and security officers
“to stalk, investigate, place . . . under surveillance, guard, protect, recover and
follow” Nassar. R. at 1990. Nassar also received an anonymous text message that
read, “I am gonna kill u! Don’t give anybody my cell number,” which she
perceived to be a threat and, based on the area code, has concluded was sent by
Eduardo. R. at 2004. Nassar’s publishing business has suffered as a result of
Eduardo’s actions because Nassar had to spend “most of her time investigating the
investigators and security officers who [Eduardo] has been hiring.” R. at 1990.
B. Prior State-Court Proceedings
In 2012, Eduardo filed a complaint in Florida state court against Nassar,
alleging claims of defamation and intentional infliction of severe emotional
distress.1 Eduardo claimed that Nassar published false allegations on the internet
that he had sexually abused and tortured her by placing her under surveillance.
Nassar filed a counterclaim against Eduardo; Eduardo moved to dismiss the
counterclaim based, in part, on lack of personal jurisdiction over him. Nassar filed
an amended counterclaim; Eduardo again moved to dismiss. The state court
granted Eduardo’s motion to dismiss and granted Nassar leave to amend.
Nassar filed a third amended counterclaim. She alleged intellectual property
damage based on Eduardo’s purchase of the domain names associated with her and
1
The district court took judicial notice of this background information from the state court. R. at
3013 n.2.
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her business, defamation based on Eduardo’s online comments, stalking based on
Eduardo’s alleged hiring of private investigators and security officers, and
intentional infliction of severe emotional distress based on stalking. Eduardo
moved to dismiss the counterclaims with prejudice and noted that the claims did
not arise out of the same facts as his claims, so they might constitute compulsory
counterclaims and thus lack jurisdiction. Eduardo mainly argued that Nassar had
failed to allege a short and plain statement of the ultimate facts, Nassar’s
defamation claim was time-barred, Nassar failed to state a claim for defamation,
and Florida law does not recognize a claim for intellectual property damage. The
state court granted the motion to dismiss with prejudice for the reasons contained
in Eduardo’s motion. Eduardo later dismissed his suit without prejudice.
C. Nassar’s Federal Case
In March 2016, Nassar filed an amended complaint against Eduardo in the
Middle District of Florida, alleging claims of cyberpiracy and cybersquatting in
connection with internet domain names, in violation of 15 U.S.C. § 1125(d),
defamation, and intentional infliction of severe emotional distress. Eduardo filed a
motion to dismiss, arguing the amended complaint was barred by res judicata
because Nassar previously had filed a counterclaim in state court that was
dismissed with prejudice that had raised nearly identical allegations and requests
for relief based on the same factual predicate. He also argued the statute of
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limitations barred her defamation claim and the complaint failed to allege the
elements of a claim for intentional infliction of severe emotional distress.
Nassar subsequently filed a motion for leave to file a second amended
complaint. She argued that the second amended complaint would resolve any
doubt as to the legal sufficiency of her allegations, contain more allegations of the
incidents of stalking, eliminate the defamation claim, and add a claim of
cyberpiracy and invasion of privacy. She also sought leave to amend to include
new evidence that was discovered after Eduardo’s former attorney disclosed that
he had conducted surveillance on Nassar on behalf of Eduardo. The magistrate
judge denied her motion for leave to file a second amended complaint without
prejudice. The magistrate judge determined that while Nassar had demonstrated
good cause for filing the motion two months after the deadline to amend pleadings,
Nassar could not be allowed to file her proposed second amended complaint
because it did not comply with Federal Rules of Civil Procedure 8 and 10. Nassar
then filed a renewed motion for leave to file a second amended complaint.
After taking judicial notice of the state-court proceedings, the district court
determined that Nassar’s suit was barred by res judicata. The court concluded the
identity of the thing sued for was the same in the state-court action and the current
action, the identity of the parties was the same, and the parties were suing and
being sued in the same capacity. Additionally, the court determined that the state
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court’s dismissal was a final judgment on the merits and, because Eduardo
voluntarily dismissed his case, Nassar’s counterclaims were final and appealable.
The court concluded that the state court was a court of competent jurisdiction
because Eduardo impliedly consented to personal jurisdiction and that Nassar’s
claims were sufficient to support that the actions arose from Eduardo’s alleged
commission of tortious acts in Florida, satisfying Florida’s long-arm statute.
The district court also denied Nassar’s motion to amend her complaint. The
court determined that any allegations of stalking that predated 2014 necessarily
would have been encompassed in Nassar’s counterclaim and amending would be
futile. To the extent that Nassar included incidents that postdated the filing of her
third amended state-court counterclaim, the court determined that her claims would
not be barred by res judicata; but the court declined to permit Nassar to supplement
her pleadings because it would not promote the efficient administration of justice
under the totality of the circumstances. The court noted that none of the newly
alleged incidents occurred after she filed her amended complaint; Nassar had
unreasonably delayed in requesting leave to supplement her pleading with those
allegations and allowing her to do so would unduly delay the proceedings.
On appeal, Nassar argues that the district court erred by dismissing her
complaint based on res judicata because the Florida state court dismissed her
complaint for lack of personal jurisdiction rather than on the merits and that the
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district court erred by failing to consider the merits of her claims. Nassar also
argues that the district court erred by denying her leave to file a second amended
complaint because her claims were based on newly discovered evidence.
II. DISCUSSION
A. Motion to Dismiss
We review de novo the district court’s grant of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, “accepting the
allegations in the complaint as true and construing them in the light most favorable
to the plaintiff.” Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d 1301,
1305 (11th Cir. 2009). We also review de novo the district court’s application of
res judicata. Griswold v. County of Hillsborough, 598 F.3d 1289, 1292 (11th Cir.
2010). Although we read briefs filed by pro se litigants liberally, issues not briefed
on appeal by a pro se litigant are deemed abandoned. Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008).
When we are asked to give res judicata effect to a state-court judgment, we
must apply the res judicata principles of the state whose decision is set up as a bar
to further litigation. Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th
Cir. 2006). Under Florida law, res judicata applies where there is (1) identity of
the thing sued for, (2) identity of the cause of action, (3) identity of the persons and
parties to the action, (4) identity of the quality or capacity of the person for or
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against whom the claim is made, and (5) the original claim was disposed on the
merits. Lozman v. City of Riviera Beach, 713 F.3d 1066, 1074 (11th Cir. 2013). A
judgment on the merits prohibits not only relitigation of claims previously raised
but also the litigation of claims that could have been raised. State v. McBride, 848
So. 2d 287, 290 (Fla. 2003). Florida’s claim-preclusion law defines identity of
causes of action as causes sharing similar facts essential to the maintenance of both
actions—that is, the claims must be substantially the same. See Amey, Inc. v. Gulf
Abstract & Title, Inc., 758 F.2d 1486, 1510 (11th Cir. 1985).
First, Nassar does not challenge on appeal the district court’s determination
that the identity of the thing sued for, the identity of the persons and parties to the
action, the identity of the causes of action, and the identity of the quality or
capacity of the person for or against whom the claim was made are the same in her
federal action as they were in state court. Nassar therefore has abandoned any
argument as to those issues on appeal. See Timson, 518 F.3d at 874.
According to the state-court order granting Eduardo’s motion to dismiss
Nassar’s third amended counterclaim, the court granted the motion for the reasons
included in the motion to dismiss. Although Eduardo made passing reference to
the fact that Nassar’s counterclaims might constitute compulsory counterclaims
that did not result in personal jurisdiction, this reference was one sentence in a
seven-page motion to dismiss. Because the majority of his motion focused on the
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dismissal of Nassar’s counterclaims based on her failure to state a claim and the
claims being time barred, it is clear that the state court, by adopting Eduardo’s
reasoning, was dismissing her counterclaims with prejudice. This is further
supported by the fact that, in its judgment dismissing the counterclaims, the state
court specified that Nassar would not be permitted to further amend.
Moreover, under Florida law, an involuntary dismissal operates as an
adjudication on the merits, unless the order otherwise specifies or the dismissal
was for lack of jurisdiction, improper venue, or for lack of an indispensable party.
Fla. R. Civ. P. 1.420(b). This provision applies to dismissal of any counterclaim.
Fla. R. Civ. P. 1.420(c). Here, because the state court did not explicitly dismiss
Nassar’s counterclaims for lack of jurisdiction and the order did not otherwise
specify that it was dismissing without prejudice, the state court’s involuntary
dismissal of her claims operated as an adjudication on the merits. See Fla. R. Civ.
P. 1.420(b), (c). Accordingly, the district court properly concluded that the state-
court order disposed of Nassar’s claims on the merits.
Finally, Nassar’s argument that the district court erred by only considering
the merits of one of her claims is unavailing. The court was not required to
determine the merits of her claims because it determined that they were barred by
res judicata. While the court considered the merits of Nassar’s claim that Eduardo
sent her a threatening text message to the extent it could be construed as a new
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claim not barred by res judicata, it found Nassar misread the telephone number and
the message came from the United States and not Brazil. Furthermore, even
assuming that the text message was sent from Eduardo, the claim is still barred by
res judicata. Although Nassar did not include this specific allegation in her state-
court counterclaim, this allegation was provided in her current complaint to
support the stalking allegations as part of her claim for intentional infliction of
emotional distress. Therefore, this claim is part of the same factual basis as her
state-court claim for intentional infliction of severe emotional distress and is barred
by res judicata. See Amey, 758 F.2d at 1510.
B. Leave to Amend
While we review the denial of leave to amend the complaint for abuse of
discretion, a legal determination that amendment to the complaint would be futile
is reviewed de novo. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).
Even after the time has expired for amending a complaint as of right under Federal
Rule of Civil Procedure 15(a)(1), a court should give leave to amend freely “when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Generally, a party must be given at
least one opportunity to amend before the district court dismisses the complaint.
Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). Pro se pleadings
are held to an even less stringent standard than pleadings drafted by attorneys.
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, a
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district court need not allow an opportunity to amend if any amendment would be
futile. See Cockrell, 510 F.3d at 1310 (“Leave to amend a complaint is futile when
the complaint as amended would still be properly dismissed . . . .”).
Although Nassar raised new claims for invasion of privacy and cyberpiracy,
the factual basis for the allegations that occurred prior to the third amended
counterclaim arose from the same factual basis and could have been raised in the
state-court action. See McBride, 848 So. 2d at 290 (recognizing that res judicata
“prohibits not only relitigation of claims raised but also the litigation of claims that
could have been raised in the prior action”). Additionally, the proposed
amendment to her complaint based on the allegedly “new” evidence would be
futile because the evidence was not actually new. The alleged discovery of new
evidence regarding the domain names does not change the outcome that her claims
are barred by res judicata because they previously were raised in state court. As to
the allegedly new evidence about Eduardo’s stalking from disclosures made by his
former attorney, her allegations fail to demonstrate that these alleged incidents
occurred after she filed her state-court counterclaims and were not part of the same
factual basis. Accordingly, the district court did not err in determining that
amending her complaint on these grounds would be futile.
Further, Nassar did not show that the interests of justice required leave to
amend her complaint when the district court already had allowed her to amend her
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complaint once and she could have raised these allegations in her first amended
complaint. See Fed. R. Civ. P. 15(a)(2). The district court therefore did not abuse
its discretion in denying Nassar leave to amend her complaint to include
allegations that were not barred by res judicata.
AFFIRMED.
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