Angela W. DeBose v. Ellucian Company, L.P.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 30, 2019
• Docket: 19-11701
• Status: Unpublished

Opinion

Case: 19-11701 Date Filed: 12/30/2019 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11701 Non-Argument Calendar ________________________

D.C. Docket No. 8:19-cv-00200-JSM-AEP

ANGELA W. DEBOSE,

Plaintiff-Appellant,

versus

ELLUCIAN COMPANY, L.P., ANDREA DIAMOND,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(December 30, 2019)

Before WILSON, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM: Case: 19-11701 Date Filed: 12/30/2019 Page: 2 of 13

Angela DeBose, pro se, appeals the district court’s denial of her motion to

remand her case to state court, its dismissal of her suit based on the doctrine of res

judicata, and its order referring her case to mediation. Debose’s suit stems from

her allegedly wrongful termination from her job as the University Registrar at the

University of South Florida (USF).

On appeal, DeBose argues that the district court: (1) erred in denying her

motion to remand her case; (2) erred in granting Ellucian Company, L.P. and

Andrea Diamond’s motion to dismiss on the basis that res judicata barred

Debose’s claims; and (3) abused its discretion in managing its docket by ordering

mediation, failing to issue a case management scheduling order, and constructively

denying Debose an opportunity to amend her complaint.1 Finding no error or

abuse of discretion, we affirm.

I

Ellucian is a software developer whose products are used for academic and

administrative recordkeeping. Diamond was a Functional Consultant for Ellucian,

and she met with DeBose at USF to discuss Ellucian’s Degree Works software.

Diamond wrote a report about their meeting, which severely criticized DeBose and

1 DeBose also appealed the district court’s denial of her motion for relief from its judgment. But because DeBose failed to present arguments regarding that issue in her brief, she has abandoned it on appeal. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (stating that a party abandons an issue “by failing to list or otherwise state it as an issue on appeal”).

2 Case: 19-11701 Date Filed: 12/30/2019 Page: 3 of 13

the Registrar’s office as a whole. The report was submitted to USF, and shortly

thereafter DeBose was fired. She subsequently sued USF, its Board of Trustees,

and Ellucian 2 in federal court for a litany of federal- and state-law claims stemming

from her termination; the claims against Ellucian in this suit were either dismissed

with prejudice for failure to state a claim or were ruled on in Ellucian’s favor at

summary judgment.

DeBose later filed the suit at issue here—this time against Ellucian (again)

and Diamond (for the first time)—in state court, alleging many of the same state-

law claims that she asserted in her first suit (e.g., negligence, gross negligence, and

negligent supervision), as well as a few new ones (e.g., wantonness and

defamation), all stemming from her termination from USF. Ellucian and Diamond

attempted to remove the case to federal court, but they were initially unsuccessful

as they couldn’t demonstrate a sufficient amount in controversy for diversity-

jurisdiction purposes. But within one year of the commencement of the action,

Ellucian and Diamond removed the case to federal court a second time—this time

successfully. In the meantime, they had gained access to trial testimony from a

related action in which DeBose stated that she had suffered damages from the loss

of her job and benefits in the amounts of $118,000 and $187,000, respectively.

2 Diamond was not a party to the first suit, but her actions were detailed in DeBose’s first amended complaint, which included a claim against Ellucian for negligent supervision of Diamond. 3 Case: 19-11701 Date Filed: 12/30/2019 Page: 4 of 13

The district court found that this testimony sufficiently established the requisite

amount in controversy and then denied DeBose’s motion to remand the case. The

district court ordered that the parties attempt to mediate their dispute, and when

that mediation was unsuccessful it granted a pending motion to dismiss, holding

that DeBose’s claims were barred by res judicata.

On appeal, Debose challenges the district court’s determination that

diversity jurisdiction existed and that removal was proper, its dismissal of the case

based on the doctrine of res judicata, and its handling of the case with respect to its

order to mediate.

II

“Whether a court has subject-matter jurisdiction to hear a matter is a

question of law that we review de novo.” Holston Invs., Inc. B.V.I. v. LanLogistics

Corp., 677 F.3d 1068, 1070 (11th Cir. 2012). We also review de novo the denial

of a motion to remand, City of Vestavia Hills v. Gen. Fid. Ins. Co.,

676 F.3d 1310, 1313 (11th Cir. 2012), and the determination of a district court’s

removal jurisdiction, Henson v. Ciba-Geigy Corp., 261 F.3d 1065, 1068 (11th Cir.

2001). The removing party bears the burden of proving that removal jurisdiction

exists. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001).

“[A]ny civil action brought in a State court of which the district courts of the

United States have original jurisdiction, may be removed by the defendant or the

4 Case: 19-11701 Date Filed: 12/30/2019 Page: 5 of 13

defendants, to the district court of the United States for the district and division

embracing the place where such action is pending.” 28 U.S.C. § 1441(a). Federal

courts are vested with original diversity jurisdiction over claims between citizens

of different states where the amount in controversy exceeds $75,000. 28 U.S.C.

§ 1332(a)(1).

For federal diversity jurisdiction to attach, “all plaintiffs must be diverse

from all defendants.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 412 (11th

Cir. 1999). A limited partnership (like Ellucian) is a citizen of any state of which a

partner is a citizen. Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C.,

374 F.3d 1020, 1021 (11th Cir. 2004). A natural person is a citizen of the state in

which they are domiciled. See Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974).

“When a defendant removes a case to federal court on diversity grounds, a court

must remand the matter back to state court if any of the properly joined parties in

interest are citizens of the state in which the suit was filed.” Henderson v. Wash.

Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006).

If removal is based on diversity jurisdiction, the sum demanded in good faith

in the initial pleading is the amount in controversy. 28 U.S.C. § 1446(c)(2).

Removal is also proper and the amount in controversy is met “if the district court

finds, by the preponderance of the evidence, that the amount in controversy

exceeds” $75,000. Id. at § 1446(c)(2)(B), § 1332(a).

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To remove a civil action pending in state court to federal court, a defendant

must file a notice of removal in the United States district court where such action is

pending “within 30 days after the receipt by the defendant, through service or

otherwise, of a copy of the initial pleading setting forth the claim for relief upon

which such action or proceeding is based.” Id. at § 1446(a), (b). If the case was

not removable based on the initial pleadings, “a notice of removal may be filed

within 30 days after receipt by the defendant, through service or otherwise, of a

copy of an amended pleading, motion, order or other paper from which it may first

be ascertained that the case is one which is or has become removable.” Id. at

§ 1446(b)(3). If removal is based on diversity of citizenship, a case may not be

removed under § 1446(b)(3) “more than 1 year after commencement of the action.”

Id. at § 1446(c)(1). The untimeliness of a removal is a procedural issue, not a

jurisdictional defect. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751

(11th Cir. 2010).

Here, the district court did not err in denying DeBose’s motion to remand to

state court, because it properly found diversity jurisdiction. There was complete

diversity—DeBose is a citizen of Florida, Diamond is a citizen of Pennsylvania,

and Ellucian is a citizen of Delaware and Virginia, the states of citizenship of its

partners.3 Ellucian’s contractual ties to Florida do not establish citizenship there.

3 Although DeBose now contends that Ellucian is a citizen of Florida—like her—and is therefore 6 Case: 19-11701 Date Filed: 12/30/2019 Page: 7 of 13

Cf. Rolling Greens MPH, L.P., 374 F.3d at 1021. Moreover, Ellucian and

Diamond met their burden of establishing the amount in controversy by a

preponderance of the evidence through their introduction of DeBose’s trial

testimony recounting that her damages exceeded $75,000. Finally, the case was

removed within the one-year deadline, and DeBose forfeited any argument about

Ellucian and Diamond not removing within the parameters of the 30-day rule, as

she did not raise this argument below.4

III

“We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim, accepting the complaint’s allegations as true

and construing them in the light most favorable to the plaintiff.” Cinotto v. Delta

Air Lines Inc., 674 F.3d 1285, 1291 (11th Cir. 2012). To survive a motion to

dismiss, a complaint must contain “only enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In

determining whether a pro se plaintiff states a viable claim, we liberally construe

her complaint. See Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir.

2014).

not a diverse party, in her prior suit in federal court she stated that she and Ellucian were completely diverse, in support of her assertion of federal diversity jurisdiction over many of the same claims. 4 We generally will not consider the merits of issues not raised before the district court. See Narey v. Dean, 32 F.3d 1521, 1526–27 (11th Cir. 1994). 7 Case: 19-11701 Date Filed: 12/30/2019 Page: 8 of 13

Under Federal Rule of Civil Procedure 12(b), a court generally may not

consider materials outside of the complaint without first converting the motion to

dismiss into a motion for summary judgment. Day v. Taylor, 400 F.3d 1272,

1275–76 (11th Cir. 2005). A district court may, however, take judicial notice of

certain facts—including public records—without converting a motion to dismiss.

See, e.g., Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999).

Federal Rule of Evidence 201(b)(2) allows a court to take judicial notice of “a fact

that is not subject to reasonable dispute because it . . . can be accurately and

readily determined from sources whose accuracy cannot reasonably be

questioned.” “[A] court may take notice of another court’s order only for the

limited purpose of recognizing the judicial act that the order represents or the

subject matter of the litigation.” United States v. Jones, 29 F.3d 1549, 1553 (11th

Cir. 1994) (internal quotation marks omitted).

Whether res judicata bars a claim is a question of law that we review de

novo. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). Res

judicata applies if “(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.”5 Id.; see also Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105

5 Ellucian and Diamond assert that Florida state law on res judicata should apply here, based on 8 Case: 19-11701 Date Filed: 12/30/2019 Page: 9 of 13

(Fla. 2001). “[A] dismissal with prejudice is deemed an adjudication on the merits

for the purposes of res judicata,” Anthony v. Marion Cty. Gen. Hosp., 617 F.2d

1164, 1170 (5th Cir. 1980) (emphasis added), as is a dismissal for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6), NAACP v. Hunt, 891 F.2d

1555, 1560 (11th Cir. 1990). Additionally, “disposition of a case on summary

judgment grounds represents a final adjudication on the merits” and “forecloses

subsequent litigation on the matter.” Griffith v. Wainwright, 772 F.2d 822, 825 n.4

(11th Cir. 1985).

the Supreme Court’s precedent in Semtek Int’l Inc. v. Lockheed Martin Corp., which held that “federal common 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 law that would be applied by state courts in the State in which the federal diversity court sits.” 531 U.S. 497, 508 (2001). The district court in this case relied largely on federal res judicata law to come to its decision. The district court’s jurisdiction in DeBose’s first round of litigation, however, did not rest exclusively on diversity jurisdiction: In her first amended complaint in that suit, DeBose asserted that the district court had federal-question, diversity, and supplemental jurisdiction over Ellucian. After a number of her claims were dismissed with prejudice, she further amended her complaint—the operative third amended complaint presenting her surviving claims asserted that the district court had federal-question and supplemental jurisdiction—not diversity jurisdiction. Our jurisprudence on whether state or federal res judicata law applies 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 (11th Cir. 2017) (clarifying “discordant” case law on “whether federal common law borrows the doctrine of collateral 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)). Gratefully, we need not hash out which res judicata law should apply here, as we have held that “[a] comparison between Florida rules and federal rules governing claim and issue preclusion reveals that the relevant principles are largely identical.” 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). So, under either federal or Florida law, our holding here remains the same. 9 Case: 19-11701 Date Filed: 12/30/2019 Page: 10 of 13

We’ve also held that “if a case arises out of the same nucleus of operative

fact, or is based upon the same factual predicate, as a former action, that the two

cases are really the same claim or cause of action for purposes of res judicata.”

Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1503 (11th Cir. 1990)

(emphasis added) (internal quotation marks and citation omitted). The doctrine of

res judicata thus “bars the filing of claims which were raised or could have been

raised in an earlier proceeding.” Ragsdale, 193 F.3d at 1238; see also Juliano, 801

So. 2d at 105.

Generally, “one is not bound by a judgment in personam in a litigation in

which he is not designated as a party or to which he has not been made a party by

service of process.” Hansberry v. Lee, 311 U.S. 32, 40 (1940). However, a

nonparty is bound by a judgment if he was in privity with a party to that judgment.

See Griswold v. Cty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010); see

also Jasser v. Saadeh, 103 So. 3d 982, 985 (Fla. Dist. Ct. App. 2012). We have

recognized that “most other federal circuits have concluded that employer-

employee or principal-agent relationships may ground a claim preclusion defense,

regardless which party to the relationship was first sued,” and we have applied

claim preclusion to bar a suit against an employer company after a suit against the

company’s employee/agent directors was dismissed with prejudice. See Citibank,

N.A., 904 F.2d at 1500–03.

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As a preliminary matter, the district court here properly took judicial notice

of the pleadings and orders in DeBose’s earlier federal case stemming from her

allegedly wrongful termination, as the records in that case were not subject to

reasonable dispute. See Jones, 29 F.3d at 1553. Likewise, the district court’s

dismissal of DeBose’s claims under the doctrine of res judicata was proper. Here,

there is no dispute that the district court in DeBose’s earlier federal case was a

court of competent jurisdiction, and its rulings on her claims against Ellucian were

final judgments on the merits. DeBose could have raised all her current claims in

her earlier suit, as they arise from the same nucleus of operative facts—her

termination from USF. See Citibank, N.A., 904 F.2d at 1503. And Diamond—as

Ellucian’s employee/agent—is in privity with it for res judicata purposes, despite

not being named in the first suit. See id. at 1502–03. DeBose’s claims are

therefore barred by res judicata.

IV

When a party claims that she was “materially prejudiced by the district

court’s mismanagement of a case,” we review for abuse of discretion. See

Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997).

Federal Rule of Civil Procedure 16(b)(1)–(2) requires the district court to

issue a scheduling order—unless exempted by a local rule—“as soon as

practicable, but unless the judge finds good cause for delay, the judge must issue it

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within the earlier of 90 days after any defendant has been served with the

complaint or 60 days after any defendant has appeared.” The local rules for the

United States District Court for the Middle District of Florida state that the court

will ordinarily rule on a motion to dismiss “within 60 days after receipt of the last

paper directed to the motion.” M.D. Fla. R. 3.05(c)(2)(A). Additionally, parties

must “meet within 60 days after service of the complaint upon any defendant, or

the first appearance of any defendant, regardless of the pendency of any undecided

motions,” to prepare and file a case management report, and after the court

receives that report it will either schedule a preliminary pretrial conference or enter

a case management and scheduling order. Id. at (c)(2)(B), (D).

Federal Rule of Civil Procedure 16(c)(2)(I) states that a district court may

act on the matter of “settling the case and using special procedures to assist in

resolving the dispute when authorized by statute or local rule.” The local rules for

the Middle District of Florida allow the court to refer any civil action or claim to a

mediation conference. M.D. Fla. R. 9.03(a).

Federal Rule of Civil Procedure 15(a)(1)–(2) allows a party to amend its

pleading before trial once as a matter of right within 21 days of service, or, after 21

days, with either the opposing party’s consent or the court’s leave. A district court

must grant a plaintiff leave to amend “when justice so requires,” which is

particularly important when the plaintiff is pro se. See Woldeab v. Dekalb Cty. Bd.

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of Educ., 885 F.3d 1289, 1291–92 (11th Cir. 2018) (quotation omitted). A district

court need not, however, “grant leave to amend when either (1) the district court

has a clear indication that the plaintiff does not want to amend [her] complaint, or

(2) a more carefully drafted complaint could not state a claim.” Id. (internal

quotation marks and citation omitted).

Here, the district court did not abuse its discretion in its management of

DeBose’s case. Its order for the parties to attend mediation was within its

discretion and was permitted under the local rules. Any failure to issue a case

management and scheduling order was not an abuse of discretion, as the parties

had not yet prepared a case management report and there was a pending motion to

dismiss when mediation was ordered. Lastly, it did not constructively deny

DeBose an opportunity to amend her complaint because it was her burden to seek

leave to amend—not the court’s—and she could not have saved her complaint by

amending it, in any event, as her claims were barred by res judicata. See Woldeab,

885 F.3d at 1291–92. Accordingly, we affirm.

AFFIRMED.