Harley v. Health Center of Coconut Creek, Inc.

• Decision Date: 27 September 2007
• Docket Number: No. 04-61309-Civ.,04-61309-Civ.
• Citation: 518 F.Supp.2d 1364
• Parties: Wilma HARLEY, Plaintiff, v. The HEALTH CENTER OF COCONUT CREEK, INC., a Florida corporation, and Thomas and Thorngren, Inc., a Tennessee corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

518 F.Supp.2d 1364

Wilma HARLEY, Plaintiff, v. The HEALTH CENTER OF COCONUT CREEK, INC., a Florida corporation, and Thomas and Thorngren, Inc., a Tennessee corporation, Defendants.

No. 04-61309-Civ.

United States District Court, S.D. Florida.

September 27, 2007.

Chris Kleppin, Harry O. Boreth, Glasser Boreth Ceasar & Kleppin, Plantation, FL, for Plaintiff.

Daniel H. Kunkel, Jennifer Marie Fowler-Hermes, John Maxwell Hament, Kunkel Miller & Hament, Sarasota, FL, for Defendants.

ORDER FOLLOWING PRETRIAL CONFERENCE

ALAN S. GOLD, District Judge.

THIS CAUSE is before the Court following the pretrial conference held on September 17, 2007. An earlier Order on Pretrial Conference was issued at Docket Entry Number 153. The requirements set forth in that Order remain in full force and effect. All submissions required by that Order (see ¶¶ 1, 2, 5, and 6) shall be filed by the parties no later than Wednesday, October 10, 2007. The "jury notebooks" referred to in Paragraph 7 of the Order shall be submitted by Monday, October 15, 2007.

At this latest pretrial conference, the parties argued Defendants' Motion for Judgement on the Pleadings [D.E.# 149], as well as six different motions in limine [D.E. 148, 150-154]. As explained further in this Order, the Defendant's Motion for Judgment on the Pleadings is denied without prejudice. The various motions in limine are granted in part and denied in part as is discussed below.

I. Defendant's Motion for Judgment on the Pleadings [D.E. # 149] is denied without prejudice.

Defendants argue that Plaintiffs retaliation claims under the Family Medical Leave Act (FMLA) are barred by the doctrine of res judicata, based on a final judgment in state court which was rendered subsequent to this Court's "Order on Granting in Part/Denying in. Part Defendant's Motion for Summary Judgment" [D.E.# 69], entered on May 11, 2006. According to Defendants' Motion, Plaintiff brought these FMLA retaliation claims against Defendants in federal court, while concurrently bringing claims against Defendants under the Florida Civil Rights Act in state court for discrimination based on race, gender and pregnancy. The state court rendered a final judgment in August 2006 in favor of Defendants after a jury verdict. Defendants argue in their Motion that this state court judgment precludes Plaintiffs FMLA claims in this case.

Here, Defendants raise res judicata in its most recent motion for judgment on the pleadings, without previously raising the defense in either their answer or latest pretrial stipulation. This is not the first time the Defendants have filed this motion. An earlier motion, based on the same grounds, was denied by the Honorable Jose A. Gonzalez, Jr. on October 26, 2006 [D.E.# 104] without opinion.¹ Because I find that it is not clear that res judicata bars the claims before me, Defendants' Motion for Judgment on the Pleadings is denied without prejudice.

Res judicata is an affirmative defense, and it must be pled, otherwise it may be waived by a defendant Norfolk S. Corp. v. Chevron, USA, Inc., 371 F.3d 1285, 1289 (11th Cir.2004); see Fed. R.Civ.P. 8(c) ("In pleadings to a preceding pleadings, a party shall set forth affirmatively res judicata.") Under the law of this Circuit, res judicata is not a defense under Rule (12)b. Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir.1982). However, a party may raise res judicata by motion instead of by answer "where the defense's existence can be judged on the face of the complaint." Id. (where defendant raised res judicata in a motion to dismiss). Here, Defendants raised res judicata by a motion for judgment on the pleadings. While Defendants did not amend their answer, I find no waiver since the issue was timely raised prior to the first trial. As evidenced by their latest motion, the defense has never been abandoned, and the Plaintiff is not prejudiced simply because it is raised again. Therefore, I will consider whether the existence of res judicata can be determined on the face of the complaint and the answer (which did not raise res judicata as a defense).

I begin by first discussing a matter pertinent to the renewed motion for judgment on the pleadings and the latest series of motions in limine. The matter is the effect to be given to the orders issued by the predecessor district judge (Judge Gonzalez). In general, when a case is transferred from one district judge to another, the parties should not treat the transfer as an opportunity to relitigate all of the first judge's rulings. Technical Resource, Inc. v. Dornier Medical Systems, Inc., 134 F.3d 1458, 1465 (11th Cir.1998); United States v. Williams, 728 F.2d 1402, 1406 (11th Cir.1984). However, the second district judge may reconsider the first judge's rulings when final judgment has not yet been entered. See id.; Robinson v. Parrish, 720 F.2d 1548, 1550 (11th Cir. 1983); Gregg v. U.S. Indus., Inc., 715 F.2d 1522, 1530, clarified on reh'g, 721 F.2d 345 (11th Cir.1983), cert. denied, 466 U.S. 960, 104 S.Ct. 2173, 80 L.Ed.2d 556 (1984). Both the Supreme Court and the Eleventh Circuit have made clear that reconsideration of a prior holding is not improper if the court is convinced that the prior decision is clearly erroneous and would work manifest injustice. Murphy v. Fed. Deposit Ins. Corp., 208 F.3d 959, 965 (11th Cir.2000)(citing cases)

Especially since Judge Gonzalezdid not explain his reasoning in denying the motion for judgment on the pleadings, I look at the issue anew. In determining the preclusive effect of a state court judgment on an ongoing federal proceeding, federal courts apply the state's law of preclusion. Cmty. State Bank v. Strong, 485 F.3d 597, 612 (11th Cir.2007) ("In considering whether to give preclusive effect to state court judgments under the doctrines of res judicata (or claim preclusion) or collateral estoppel (or issue preclusion), we apply that state's law of preclusion."); see Andujar v. Nat'l Prop. and Cas. Underwriters, 659 So.2d 1214, 1216 (Fla. 4th DCA 1995) (stating that in determining res judicata, courts give the former judgment the "same preclusive effect that the rendering court would give if'). In this matter, Defendants ask me to consider the preclusive effect of the state court judgment against Plaintiff in Harley v. The Health Center of Coconut Creek, Inc., et al., Case No. CACE 04015924, Circuit Court in and for Miami-Dade County, Florida. Therefore, I apply Florida law of preclusion, instead of Eleventh Circuit case law, to determine if res judicata bars the claims before me.

Under Florida law, four elements are required for a claim to be precluded by judgment in another case: (1) identity in the thing sued for, (2) identity of the cause of action; (3) identity of the persons and parties to the actions; (4) identity of the quality or capacity of the persons for or against whom the claim is made. Donahue v. Davis, 68 So.2d 163, 169 (Fla.1953); see Atl. Shores Resort, LLC v. 507 S. St. Corp., 937 So.2d 1239, 1243 n. 3 (Fla. 3d DCA 2006) ("Res judicata applies only when there is a judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction.") (internal citations omitted) (emphasis in original).

If res judicata is found to apply, it "bars a subsequent suit between the same parties based upon the same cause of action and is conclusive as to all matters germane thereto that were or could have been raised." Hoechst Celanese Corp. v. Fry, 693 So.2d 1003, 1006 n. 9 (Fla. 3d DCA 1997). However, if the cause of action is not the same, res judicata will not bar issues which could have been raised in the prior suit but were not. Champlovier v. City of Miami, 667 So.2d 315, 319 (Fla. 1st DCA 1995) (citing Albrecht v, State, 444 So.2d 8, 12 (Fla.1984), superceded on other grounds by statute as stated in Bowen v. Dep't of Envtl, Regulation, 448 So.2d 566 (Fla. 2d DCA 1984)).

With respect to the second element required for res judicata, "[t]he determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions." Atlantic Shores, 937 So.2d at 1243 n. 3 (quoting Albrecht, 444 So.2d at 12 (Fla.1984)) Here, the issue of res judicata arose long after the complaint and answer was filed. Based on the submission by Defendants to date, it is not clear that identity of the cause of action exists between Plaintiffs state case and this case.² While both stem out of Defendants' termination of Plaintiffs employment, the two claims may require the presentation of different facts and evidence. Furthermore, because Defendants raise this issue on a motion for judgment on the pleadings, I am limited in my analysis to whether the existence of res judicata can be determined from the face of the complaint and the answer. See Concordia, 693 F.2d at 1075. As I explained, it cannot because neither pleading addresses the issue.

Therefore, the Motion for Judgment on the Pleadings is denied without prejudice, and Defendants are granted leave to amend their answer before trial commences to include res judicata as an affirmative defense. If they choose to amend, the transcript from the state court proceeding may be filed and arguments on the issue of res judicata may be raised in a motion for judgment under Federal Rule of Civil Procedure 50 at trial, outside the presence of the jury.

II. Motions in Limine

The parties explain that they have reasserted their prior motions in limine to preserve them. In fact, I had addressed several of the motions in limine in my prior Order on Pretrial Conference [D.E. 153, pages 9-13]. I readdress each pending motion and note my ruling and, where applicable, Judge Gonzalez's rulings.

A. Defendant's Motion in Limine to Exclude From Trial Scheduled for October 2007 the Determination of the Division of Unemployment Compensation [D.E. 151].

I...