David Foley, Jr., et al. v. Orange County, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13864
Non-Argument Calendar
____________________
DAVID W. FOLEY, JR.,
JENNIFER T. FOLEY,
Plaintiffs-Appellants,
versus
ORANGE COUNTY,
a political subdivision of Florida,
ASIMA M. AZAM,
individually and together, in their
personal capacities,
TIM BOLDIG,
individually and together, in their
personal capacities,
FRED BRUMMER,
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2 Opinion of the Court 22-13864
RICHARD CROTTY,
individually and together, in their
personal capacities, et.al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:22-cv-00456-RBD-EJK
____________________
Before R OSENBAUM , GRANT, and B RASHER , Circuit Judges.
PER CURIAM:
David Foley, Jr., and Jennifer Foley, proceeding pro se, sued
Orange County, Florida, Orange County officials, and Orange
County employees for ordering the Foleys to destroy an aviary
they used to maintain and sell a small flock of toucans on their
property. The district court dismissed their complaint on res judi-
cata grounds, denied their request for judicial notice, and denied
their motion for leave to amend their complaint. The Foleys ap-
pealed. On appeal, the employee defendants moved for Rule 38
sanctions. For the reasons stated below, we affirm the district court
and deny the defendants’ motion for sanctions.
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22-13864 Opinion of the Court 3
I.
Since the early 2000s, the Foleys owned and maintained a
small flock of toucans on their property to breed and sell. David
Foley held licenses from the Florida Fish and Wildlife Conservation
Commission to sell the toucans on his property from 2002 to 2008;
but after a private citizen initiated an investigation of the sale of the
toucans in 2007, the Orange County Enforcement Board ordered
the Foleys to get a permit for their aviary structure, destroy it, or
pay a daily fine. David Foley applied for a permit, but a county em-
ployee denied the application because using an aviary for commer-
cial purposes violated the Orange County Code. The Foleys were
ultimately forced to destroy their aviary and make other accom-
modations for their toucans. The Orange County Board of Zoning
Adjustment, the Board of County Commissioners, and Florida
state courts upheld the decision to deny the permit.
The Foleys sued Orange County and 19 individual county
employees in their official and individual capacities in federal court,
seeking a declaratory judgment that the Orange County land use
ordinance is void and alleging violations of the Fourteenth Amend-
ment’s Due Process Clause and Equal Protection Clause, First
Amendment, and Fourth Amendment. The district court held that
Orange County’s land use regulations were unlawful and granted
summary judgment to the Foleys on that claim but granted sum-
mary judgment to Orange County on the other claims. See Foley v.
Orange County, No. 6:12-cv-269, 2013 WL 4110414, at *14 (M.D. Fla.
Aug. 13, 2013). The Foleys appealed, and we held that all the
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4 Opinion of the Court 22-13864
Foleys’ federal claims had no plausible foundation or were clearly
foreclosed by Supreme Court decisions. See Foley v. Orange County,
638 F. App’x 941, 945–46 (11th Cir. 2016). Thus, under Bell v. Hood,
327 U.S. 678, 682 (1946), we held that the district court lacked fed-
eral-question jurisdiction to decide the state law claim, vacated the
district court’s judgment, and ordered the district court to dismiss
the case without prejudice. See Foley, 638 F. App’x at 946.
The Foleys again sued those defendants in Florida state
court. They alleged state and federal takings and due process claims
but later amended their complaint to drop the federal takings
claim. The state court dismissed the Foleys’ amended complaint
with prejudice.
The Foleys then brought this suit against the same defend-
ants in federal court, alleging federal takings and due process
claims. The defendants moved to dismiss the complaint on res ju-
dicata grounds. The district court agreed and dismissed the federal
due process claim because the Foleys had brought the same claim
against the same defendants in state court and because the state
court dismissed it on the merits. The district court also dismissed
the federal takings claim on res judicata grounds because, even
though the Foleys dropped that claim in state court, res judicata
applies to all claims arising out of the same nucleus of operative
facts, and the state takings claim the Foleys pursued was based on
the same facts as their federal takings claim. The district court fur-
ther held that even though the Foleys claimed they “reserved” their
takings claim in state court, they made no affirmative
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22-13864 Opinion of the Court 5
representation in their state court pleadings to avoid the applica-
tion of res judicata as required by our precedent. See Fields v. Sara-
sota Manatee Airport Auth., 953 F.2d 1299, 1309 (11th Cir. 1992). The
district court also denied in part the Foleys’ motion for judicial no-
tice to the extent the Foleys sought notice of the defendant’s mo-
tive of any previous filings and denied the Foleys motion for leave
to amend their complaint.
On appeal, the Foleys challenge the district court’s dismissal
of their claims on res judicata grounds, the district court’s partial
denial of their request for judicial notice, and the district court’s
denial of their motion to amend their complaint. Additionally, the
employee defendants ask us to sanction the Foleys under Federal
Rule of Appellate Procedure 38 for submitting arguments on ap-
peal that are devoid of merit.
II.
We review de novo the district court’s dismissal of the com-
plaint based on res judicata. See Kizzire v. Baptist Health Sys., Inc.,
441 F.3d 1306, 1308 (11th Cir. 2006). We review the district court’s
ruling on a request for judicial notice for an abuse of discretion. See
Lodge v. Kondaur Cap. Corp., 750 F.3d 1263, 1273 (11th Cir. 2014).
We also review the district court’s denial of a motion to amend for
an abuse of discretion, “but whether the motion is futile is a ques-
tion of law that we review de novo.” Brooks v. Warden, 800 F.3d 1295,
1300 (11th Cir. 2015).
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6 Opinion of the Court 22-13864
III.
The Foleys first argue that the district court erred in apply-
ing the federal res judicata standard instead of the state standard
and that under the state standard the state court judgment creates
no bar to this case on res judicata grounds.
The Foleys are correct that, “[i]n considering whether to
give preclusive effect to state-court judgments under res judicata
or collateral estoppel, the federal court applies the rendering state’s
law of preclusion.” Cmty. State Bank v. Strong, 651 F.3d 1241, 1263
(11th Cir. 2011). Thus, the district court erred in applying the fed-
eral standard instead of the Florida standard. But because the Fo-
leys’ claims are still barred by res judicata under Florida law, that
error does not require reversal.
A claim is barred by res judicata under Florida law 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 persons for or 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). And “res judicata bars relitigation in a subsequent
cause of action not only of claims raised[] but also claims that could
have been raised.” Fla. Dept. of Transp. v. Juliano, 801 So.2d 101, 107
(Fla. 2001).
The Foleys argue that the state court claims were not dis-
posed of on the merits and that there is no identity of the cause of
action. The Foleys say the state court did not dispose of their claims
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22-13864 Opinion of the Court 7
on the merits because the state court dismissed their claims (1) for
lack of standing and thus for lack of jurisdiction and (2) based on
absolute immunity, which is not an adjudication on the merits. We
disagree. While the state court discussed the lack of an existing case
or controversy, mootness, and ripeness, it made clear that it dis-
missed each of the Foleys’ claims for failure to state a cause of ac-
tion and dismissed the complaint with prejudice. And while the
state court dismissed the claims against the individual defendants
based on absolute immunity, it did so with prejudice because none
of the Foleys’ allegations sufficiently stated a claim against the in-
dividual defendants. Our precedent establishes that “dismissal of a
complaint with prejudice satisfies the requirement that there be a
final judgment on the merits.” Citibank, N.A. v. Data Lease Fin. Corp.,
904 F.2d 1498, 1501 (11th Cir. 1990). Even more, under Florida law,
“[a]n order finally dismissing a complaint for failure to state a cause
of action is an adjudication on the merits.” Smith v. St. Vil, 714 So.
2d 603, 605 (Fla. Dist. Ct. App. 1998). Thus, the district court dis-
posed of the Foleys’ claims on the merits.
We also disagree with the Foleys’ argument that there was
no identity of the causes of action in state court and federal court.
In their complaint, the Foleys acknowledged that the defendants
and the incidents here are the same as those in the state court case.
Indeed, the Foleys raised the same federal due process claim in state
court that they now raise in federal court. And while the Foleys
dropped their federal takings claim in state court to pursue their
state takings claim, res judicata bars relitigation of any claims that
could have been raised in the previous action. See Fla. Dept. of
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8 Opinion of the Court 22-13864
Transp., 801 So.2d at 107. There is no serious dispute that the Fo-
leys could not have raised their federal takings claim in state
court—they did, even if they later decided to abandon it. And even
though the Foleys now argue they “reserved” their federal takings
claim in state court, we agree with the district court that they made
no affirmative representation in their state court pleadings as re-
quired by our precedent to avoid the application of res judicata. See
Fields, 953 F.2d at 1309. Thus, under res judicata, the Foleys are
barred from now raising a claim they declined to pursue in state
court.
The Foleys separately argue, citing Laskar v. Peterson, 771
F.3d 1291, 1300 (11th Cir. 2014), that the state court decision cre-
ated a new intervening fact on which their federal due process
claim now relies. In Laskar the state court’s denial of a means avail-
able to remedy an alleged constitutional violation was the basis of
the later due process claim in federal court. It was unclear whether
the state court dismissed a mandamus request without considering
the merits and thus whether there was a means available to Laskar
to remedy the alleged constitutional violation. See id. at 1301. Here,
however, the state court provided a means for the Foleys to rem-
edy their alleged violations and dismissed their complaint on the
merits, so this argument fails.
The Foleys next argue that the district court erred in deny-
ing their request for judicial notice of the defendants’ inconsistent
positions in state and federal court. It is appropriate for a court to
take judicial notice of a fact that is both not subject to reasonable
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22-13864 Opinion of the Court 9
dispute and is either (1) “generally known within the trial court’s
territorial jurisdiction” or (2) “can be accurately and readily deter-
mined from sources whose accuracy cannot reasonably be ques-
tioned.” Fed. R. Evid. 201(b). “Indisputability is a prerequisite” for
a court to take judicial notice. United States v. Jones, 29 F.3d 1549,
1553 (11th Cir. 1994). The district court did not abuse its discretion
in declining to take judicial notice of the defendants’ intent in state
court because the parties’ intentions were subject to reasonable de-
bate, as illustrated by the parties’ briefs, and because the accuracy
of the defendants’ motive cannot be determined without being rea-
sonably questioned. Thus, the district court did not abuse its dis-
cretion in denying in part the Foleys’ request for judicial notice.
Finally, the Foleys argue that the district court erred in deny-
ing as futile their motion for leave to amend their complaint to add
a new count for declaratory relief as to whether the Fourteenth
Amendment recognizes a legitimate claim of entitlement to a state-
issued license to sell birds. The Foleys argue that the district court
incorrectly concluded that the state court already rejected the ar-
gument. A district court is justified in denying leave to amend due
to futility “when the complaint as amended is still subject to dis-
missal.” Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262–63 (11th
Cir. 2004). We agree with the defendants that the district court did
not err in denying the Foleys’ motion for leave to amend because
the Foleys could have raised that claim in their state court com-
plaint. Thus, that claim would be barred by res judicata if the Fo-
leys were allowed to add it to their complaint, so the district court’s
denial of their motion for leave to amend was justified by futility.
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10 Opinion of the Court 22-13864
IV.
The employee defendants ask us to impose sanctions under
Federal Rule of Appellate Procedure 38, arguing that the Foleys
raised frivolous claims in the face of clearly established law demon-
strating that their claims were barred by res judicata. “Rule 38 sanc-
tions are appropriately imposed against appellants who raise
clearly frivolous claims in the face of established law and clear
facts.” Parker v. Am. Traffic Sols., Inc., 835 F.3d 1363, 1371 (11th Cir.
2016). Under Rule 38, “a claim is clearly frivolous if it is utterly de-
void of merit.” Id. As explained above, the Foleys are correct that
the district court erroneously applied the federal res judicata test
instead of the Florida test. Thus, even though this error does not
require us to reverse, it shows that the Foleys’ arguments were not
utterly devoid of merit. Therefore, we deny the employee defend-
ants’ motion for sanctions.
V.
For the reasons stated above, we AFFIRM the district
court’s grant of the defendants’ motions to dismiss, denial of the
Foleys’ request for judicial notice, and denial of the Foleys’ motion
for leave to amend. We DENY the employee defendants’ motion
for Rule 38 sanctions.
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