693 F.2d 1073 (11th Cir. 1982), 81-5777, Concordia v. Bendekovic

Docket Nº:81-5777.
Citation:693 F.2d 1073
Party Name:John CONCORDIA, Plaintiff-Appellant, v. J. Thomas BENDEKOVIC, Jr., Lt. G. Simpson, Bruce Lee McCormick, Leonard Leo Lanham, et al., Defendants-Appellees.
Case Date:December 16, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1073

693 F.2d 1073 (11th Cir. 1982)

John CONCORDIA, Plaintiff-Appellant,


J. Thomas BENDEKOVIC, Jr., Lt. G. Simpson, Bruce Lee

McCormick, Leonard Leo Lanham, et al., Defendants-Appellees.

No. 81-5777.

United States Court of Appeals, Eleventh Circuit

December 16, 1982

Page 1074

Frank E. Maloney, Jr., Earl L. Butler, MacClenny, Fla., for plaintiff-appellant.

Michael C. Spring, Miami, Fla., for Bendekovic.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL and CLARK, Circuit Judges, and SCOTT [*], District Judge.

JAMES C. HILL, Circuit Judge:

In this appeal we are asked to reverse the judgment of the district court holding that principles of res judicata require dismissal of the appellant's action brought under Sec. 1983 and Sec. 1985. In view of the insufficiency of the record we vacate the district court's judgment and remand with instructions.


On November 27, 1979, John Concordia filed this action in the federal district court for the southern district of Florida. In Count I of his complaint, Concordia alleged that on March 29, 1977, J. Thomas Bendekovic, a Plantation, Florida police officer, stopped the plaintiff at a red light in Broward County, Florida. Concordia alleged that Bendekovic, dressed in plain clothes and driving a van with no police markings, identified himself as a police officer and accused Concordia of committing a traffic violation. Concordia claims that a scuffle then ensued, that Bendekovic "acted outside of his jurisdiction and without authorization of law," and that Bendekovic beat the plaintiff unnecessarily causing injury. Record at 2. In Count II of the complaint, Concordia alleges that the other individual defendant employees of the city conspired to cover up the deprivation of the plaintiff's rights alleged in Count I.

On December 17, 1979, the defendants filed a Rule 12(b)(6) motion to dismiss the plaintiff's action. They argued that the doctrine of collateral estoppel bars the plaintiff's action. In their memorandum of law in support of their motion to dismiss, the defendants alleged (referring to an action in state court which Bendekovic had presumably brought against Concordia) that on August 9, 1977, Concordia had initiated a counterclaim against Bendekovic and the city of Plantation alleging that Bendekovic was liable for assault and battery. Exhibit A attached to that memorandum consists of an answer and counterclaim by Concordia to Case No. 77-9778 "Richardson, J" filed on August 9, 1977, in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida. This counterclaim alleges that on March 29, 1977 Bendekovic assaulted Concordia and seeks damages. Counts II and III of this counterclaim allege that Concordia is entitled to damages from the city of Plantation as a result of this incident. Exhibit B of the present defendants' memorandum consists of a true copy of a final judgment dated December 12, 1979 in Case No. 77-9778--Richardson granting plaintiff Bendekovic $96.50 compensatory damages and $1.00 punitive damages against Concordia and denying relief to Concordia on his counterclaim. On June 30, 1981, the district judge ordered the present action dismissed based on the record described above. Judge Hastings stated:

In the instant case, Plaintiff John Concordia alleges that he was denied his civil rights in that he was beaten 'unnecessarily,' 'willfully,' and 'with excessive force.' His claim under Title 42, United States Code, Section 1983 makes substantially the same challenges which were raised by his Counterclaim in the prior State Court proceeding. Those issues having been

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considered and resolved against the Plaintiff may not be reconsidered here absent an allegation that plaintiff was denied a full and fair opportunity to litigate his claim in the State Court.

This appeal followed.


It is well-established that where a party moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted and matters outside the pleadings are presented to and not excluded by the court, the motion is to be treated as if it were a motion for summary judgment under Rule 56. 1 Murphy v. Inexco Oil Co., 611 F.2d 570 (5th Cir.1980); Moch v. East Baton Rouge Parish School Board, 548 F.2d 594 (5th Cir.), cert. denied, 434 U.S. 859, 98 S.Ct. 183, 54 L.Ed.2d 132 (1977); C. Wright, Law of Federal Courts, 3d ed. Sec. 66 (1976). Most courts view "matters outside the pleading" as including any written or oral evidence in support of or in opposition to the pleading that provides some substantiation for the pleadings. 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1366 (1969). "Memoranda of points and authorities as well as briefs and oral arguments, however, are not considered matters outside the pleadings for purposes of conversion." Id. (footnote omitted).

In the case at bar, the defendants have raised the defense of res judicata 2 in the form of a Rule 12(b)(6) motion supported by the exhibits above mentioned. Res judicata, however, is not a defense under 12(b); it is an affirmative defense that should be raised under Rule...

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