Case: 17-12108 Date Filed: 01/12/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12108 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cv-00014-SPC-CM
COLLIER COUNTY, a political subdivision of the State of Florida,
Plaintiff - Appellant,
versus
HOLIDAY CVS, L.L.C., a corporate subsidiary of CVS Health Corp.,
Defendant,
RTG, LLC, a Nebraska limited liability company,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(January 12, 2018) Case: 17-12108 Date Filed: 01/12/2018 Page: 2 of 8
Before JORDAN, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Collier County, Florida appeals the dismissal of its suit against RTG, LLC
(RTG) and Holiday CVS, L.L.C. (CVS), as well as the denial of leave for Collier
to further amend its complaint. The district court determined Collier’s claims were
barred by collateral estoppel and denied leave to amend because amendment would
be futile. After careful review,1 we affirm.
I. BACKGROUND
This case arises out of an eminent domain action. 2 Collier County, a political
subdivision of Florida, planned to expand an intersection. To complete
construction, however, Collier needed to acquire an additional right-of-way. The
relevant area included property owned by RTG, which RTG had leased to CVS.
On January 25, 2013, Collier filed a petition to commence an eminent
domain proceeding against RTG and CVS. The parcels Collier sought to condemn
included eleven of CVS’s parking spaces. CVS responded to the petition on
February 19, 2013, requesting full compensation as well as “business damages
1 We review the district court’s decision to apply collateral estoppel de novo, but the factual determinations underlying its legal conclusion will be upheld absent clear error. Quinn v. Monroe Cty., 330 F.3d 1320, 1328 (11th Cir. 2003). We review the denial of leave to amend for abuse of discretion. Smith v. Duff & Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993). 2 We take these facts from Collier’s Amended Complaint and view the same in the light most favorable to Collier, the nonmoving party. Boyle v. City of Pell City, 866 F.3d 1280, 1284 n.1 (11th Cir. 2017). 2 Case: 17-12108 Date Filed: 01/12/2018 Page: 3 of 8
and/or relocation damages.” RTG also claimed it was entitled to full compensation
and severance damages. Several months later, on May 20, 2013, CVS terminated
its lease with RTG, citing the eleven lost parking spaces. But CVS did not close;
instead, it continued operating as RTG’s month-to-month tenant.
Meanwhile, CVS and RTG’s damages claims proceeded to a jury trial. The
Amended Complaint alleges “CVS and RTG entered into a plan or scheme to
‘game’ the eminent domain system.” Although CVS fully intended to continue
operating as RTG’s tenant, CVS and RTG nonetheless sought to maximize the
damages award by representing that CVS would be forced to close and RTG would
be unable to find another viable pharmacy tenant.
In support, the Amended Complaint cites CVS’s “sworn testimony that
‘enough business would be lost permanently that would not allow [CVS] to remain
profitable after those [parking] spaces were taken.’” CVS declared the location
would close on January 1, 2015. In a similar vein, RTG represented it would be
unable to rent the property out as a pharmacy or convenience store. The jury
awarded CVS $1,933,000.00 in business damages and awarded RTG
$3,100,000.00 in severance damages. Collier paid the awards in full.
January 1, 2015, came and went. CVS continued operating at the
intersection as RTG’s tenant. Collier filed suit against CVS and RTG in state court,
alleging unjust enrichment and civil conspiracy to commit extrinsic fraud on the
3 Case: 17-12108 Date Filed: 01/12/2018 Page: 4 of 8
court. In a notice filed in state court, Collier later withdrew the civil conspiracy
claim, leaving only unjust enrichment in play.
CVS removed the case to federal court. CVS and RTG both moved to
dismiss. Collier sought leave to file a second amended complaint. The district court
determined res judicata barred Collier’s unjust enrichment claim and granted CVS
and RTG’s motions, dismissing the action with prejudice. The court
simultaneously denied Collier’s motion for leave to amend because amendment
would be futile. Collier appealed.
II. DISCUSSION
A court may consider a document attached to a motion to dismiss without
converting the motion into one for summary judgment only if the document is
central to the plaintiff’s claim and its authenticity is not challenged. Day v. Taylor,
400 F.3d 1272, 1276 (11th Cir. 2005). Here, the district court considered portions
of the trial transcript from the eminent domain action, which CVS and RTG had
attached to their respective motions to dismiss.
Collier asserts considering those excerpts was error because the transcript is
not central to its unjust enrichment claim. We disagree. CVS’s representations at
trial that the taking would render operations at the intersection unsustainable are
the heart of Collier’s unjust enrichment claim. The Amended Complaint states:
“As part of their scheme, at the trial, CVS and RTG represented that CVS would
4 Case: 17-12108 Date Filed: 01/12/2018 Page: 5 of 8
be leaving . . . because of the ‘taking,’ thereby leaving RTG without a tenant.” In
support, the Amended Complaint quotes the trial transcript: “CVS gave sworn
testimony that ‘enough business would be lost permanently that would not allow
[CVS] to remain profitable . . .’”
Collier’s attempt to characterize these sections of the Amended Complaint
as “fleeting references” made “for purposes of background only” is unavailing.
This case was, in Collier’s words, brought to prevent CVS and RTG “from
obtaining a windfall as a result of retaining the justifiable payment made by
[Collier] due to a jury’s verdict plus the benefits of CVS remaining in business and
a tenant of RTG.” Collier’s unjust enrichment claim is viable only insofar as the
jury relied on representations that, as a result of the taking, CVS would not remain
in operation as RTG’s tenant after January 1, 2015. The portions of the trial
transcript considered by the district court go directly to that issue.
The excerpts show Collier’s counsel explicitly advised the jury to consider
the possibility CVS would continue operating as RTG’s month-to-month tenant.
Counsel asked the jury, “[W]hat if they don’t move out? . . . [A]t least as long as
they are profitable, why would anyone leave? . . . I don’t know whether they are
going to shut down or not. Maybe you can come up with some opinions on that.”
Because the transcript is central to Collier’s claim and its authenticity is not
disputed, considering the same was not error.
5 Case: 17-12108 Date Filed: 01/12/2018 Page: 6 of 8
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Case: 17-12108 Date Filed: 01/12/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12108 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cv-00014-SPC-CM
COLLIER COUNTY, a political subdivision of the State of Florida,
Plaintiff - Appellant,
versus
HOLIDAY CVS, L.L.C., a corporate subsidiary of CVS Health Corp.,
Defendant,
RTG, LLC, a Nebraska limited liability company,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(January 12, 2018) Case: 17-12108 Date Filed: 01/12/2018 Page: 2 of 8
Before JORDAN, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Collier County, Florida appeals the dismissal of its suit against RTG, LLC
(RTG) and Holiday CVS, L.L.C. (CVS), as well as the denial of leave for Collier
to further amend its complaint. The district court determined Collier’s claims were
barred by collateral estoppel and denied leave to amend because amendment would
be futile. After careful review,1 we affirm.
I. BACKGROUND
This case arises out of an eminent domain action. 2 Collier County, a political
subdivision of Florida, planned to expand an intersection. To complete
construction, however, Collier needed to acquire an additional right-of-way. The
relevant area included property owned by RTG, which RTG had leased to CVS.
On January 25, 2013, Collier filed a petition to commence an eminent
domain proceeding against RTG and CVS. The parcels Collier sought to condemn
included eleven of CVS’s parking spaces. CVS responded to the petition on
February 19, 2013, requesting full compensation as well as “business damages
1 We review the district court’s decision to apply collateral estoppel de novo, but the factual determinations underlying its legal conclusion will be upheld absent clear error. Quinn v. Monroe Cty., 330 F.3d 1320, 1328 (11th Cir. 2003). We review the denial of leave to amend for abuse of discretion. Smith v. Duff & Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993). 2 We take these facts from Collier’s Amended Complaint and view the same in the light most favorable to Collier, the nonmoving party. Boyle v. City of Pell City, 866 F.3d 1280, 1284 n.1 (11th Cir. 2017). 2 Case: 17-12108 Date Filed: 01/12/2018 Page: 3 of 8
and/or relocation damages.” RTG also claimed it was entitled to full compensation
and severance damages. Several months later, on May 20, 2013, CVS terminated
its lease with RTG, citing the eleven lost parking spaces. But CVS did not close;
instead, it continued operating as RTG’s month-to-month tenant.
Meanwhile, CVS and RTG’s damages claims proceeded to a jury trial. The
Amended Complaint alleges “CVS and RTG entered into a plan or scheme to
‘game’ the eminent domain system.” Although CVS fully intended to continue
operating as RTG’s tenant, CVS and RTG nonetheless sought to maximize the
damages award by representing that CVS would be forced to close and RTG would
be unable to find another viable pharmacy tenant.
In support, the Amended Complaint cites CVS’s “sworn testimony that
‘enough business would be lost permanently that would not allow [CVS] to remain
profitable after those [parking] spaces were taken.’” CVS declared the location
would close on January 1, 2015. In a similar vein, RTG represented it would be
unable to rent the property out as a pharmacy or convenience store. The jury
awarded CVS $1,933,000.00 in business damages and awarded RTG
$3,100,000.00 in severance damages. Collier paid the awards in full.
January 1, 2015, came and went. CVS continued operating at the
intersection as RTG’s tenant. Collier filed suit against CVS and RTG in state court,
alleging unjust enrichment and civil conspiracy to commit extrinsic fraud on the
3 Case: 17-12108 Date Filed: 01/12/2018 Page: 4 of 8
court. In a notice filed in state court, Collier later withdrew the civil conspiracy
claim, leaving only unjust enrichment in play.
CVS removed the case to federal court. CVS and RTG both moved to
dismiss. Collier sought leave to file a second amended complaint. The district court
determined res judicata barred Collier’s unjust enrichment claim and granted CVS
and RTG’s motions, dismissing the action with prejudice. The court
simultaneously denied Collier’s motion for leave to amend because amendment
would be futile. Collier appealed.
II. DISCUSSION
A court may consider a document attached to a motion to dismiss without
converting the motion into one for summary judgment only if the document is
central to the plaintiff’s claim and its authenticity is not challenged. Day v. Taylor,
400 F.3d 1272, 1276 (11th Cir. 2005). Here, the district court considered portions
of the trial transcript from the eminent domain action, which CVS and RTG had
attached to their respective motions to dismiss.
Collier asserts considering those excerpts was error because the transcript is
not central to its unjust enrichment claim. We disagree. CVS’s representations at
trial that the taking would render operations at the intersection unsustainable are
the heart of Collier’s unjust enrichment claim. The Amended Complaint states:
“As part of their scheme, at the trial, CVS and RTG represented that CVS would
4 Case: 17-12108 Date Filed: 01/12/2018 Page: 5 of 8
be leaving . . . because of the ‘taking,’ thereby leaving RTG without a tenant.” In
support, the Amended Complaint quotes the trial transcript: “CVS gave sworn
testimony that ‘enough business would be lost permanently that would not allow
[CVS] to remain profitable . . .’”
Collier’s attempt to characterize these sections of the Amended Complaint
as “fleeting references” made “for purposes of background only” is unavailing.
This case was, in Collier’s words, brought to prevent CVS and RTG “from
obtaining a windfall as a result of retaining the justifiable payment made by
[Collier] due to a jury’s verdict plus the benefits of CVS remaining in business and
a tenant of RTG.” Collier’s unjust enrichment claim is viable only insofar as the
jury relied on representations that, as a result of the taking, CVS would not remain
in operation as RTG’s tenant after January 1, 2015. The portions of the trial
transcript considered by the district court go directly to that issue.
The excerpts show Collier’s counsel explicitly advised the jury to consider
the possibility CVS would continue operating as RTG’s month-to-month tenant.
Counsel asked the jury, “[W]hat if they don’t move out? . . . [A]t least as long as
they are profitable, why would anyone leave? . . . I don’t know whether they are
going to shut down or not. Maybe you can come up with some opinions on that.”
Because the transcript is central to Collier’s claim and its authenticity is not
disputed, considering the same was not error.
5 Case: 17-12108 Date Filed: 01/12/2018 Page: 6 of 8
Next, Collier asserts its case is not barred by res judicata. Collateral
estoppel, a form of res judicata, precludes the re-adjudication of an issue actually
litigated and decided in a previous adjudication, even if it arises in the context of a
different cause of action. Cmty. State Bank v. Strong, 651 F.3d 1241, 1263–64
(11th Cir. 2011). We apply the preclusion law of the state whose courts rendered
the first decision—here, the Florida courts. Agripost, LLC v. Miami-Dade Cty., 525
F.3d 1049, 1052 n.3 (11th Cir. 2008). Under Florida law, collateral estoppel
applies if: (1) the identical issue was presented in a prior proceeding; (2) the issue
was a critical and necessary part of the prior determination; (3) there was a full and
fair opportunity to litigate the issue; (4) the parties to the prior action and the
present action are the same; and (5) the issue was actually litigated during the prior
action. Marquardt v. State, 156 So. 3d 464, 481 (Fla. 2015).
The issue in this case could not, Collier contends, have been presented
during the eminent domain trial because the “unjust windfall . . . did not even
begin to occur until over one year after the conclusion of the trial and the jury’s
verdict.” Not so. Collier’s counsel specifically urged the jury in the eminent
domain trial to consider, when it assessed the appropriate damages, that CVS could
elect to remain as a month-to-month tenant after January 1, 2015. Put simply:
Collier’s counsel directed the jury to consider the possibility of the same
“windfall” Collier now asserts the jury could not have accounted for. True, what
6 Case: 17-12108 Date Filed: 01/12/2018 Page: 7 of 8
was once a possibility had not yet become a reality, but that does not alter the
simple fact that the same issue was presented to (and necessarily considered by)
the jury in determining the damages owed CVS and RTG.
Finally, the district court did not abuse its discretion by denying Collier
leave to further amend its complaint. If the underlying facts or circumstances relied
upon by a plaintiff may be a proper subject of relief, Hall v. United Ins. Co. of Am.,
367 F.3d 1255, 1262–63 (11th Cir. 2004), leave to amend “should be freely given,”
Fed. R. Civ. P. 15(a). However, denying leave to amend is not an abuse of
discretion when amendment would be futile. Id. Here, the proposed second
amended complaint arises from the same set of operative facts as the Amended
Complaint, which the district court properly dismissed on the basis of collateral
estoppel. Therefore, the district court did not abuse its discretion.
III. CONCLUSION
The district court did not err. Considering the trial transcript excerpts
attached to CVS and RTG’s motions to dismiss was proper because the transcript
is central to Collier’s unjust enrichment claim and its authenticity is not disputed.
Dismissal with prejudice was appropriate because the damages owed CVS and
RTG had already been decided by a jury explicitly urged to consider the possibility
that CVS would continue to operate as RTG’s tenant. Finally, because amendment
7 Case: 17-12108 Date Filed: 01/12/2018 Page: 8 of 8
would have been futile, denying Collier leave to further amend its complaint was
not an abuse of discretion.
AFFIRMED.