GALLIPEAU v. MUND

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Case No. 4:25cv229-RH-MAF
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
DENNIS GALLIPEAU,
Plaintiff,
v. 	CASE NO. 4:25cv229-RH-MAF
SCOTT MUND,
Defendant.
_____________________________/
ORDER DISMISSING THE FIRST AMENDED
COMPLAINT AND GRANTING LEAVE TO
FILE A SECOND AMENDED COMPLAINT
This is the first of two lawsuits—one federal and one state—between a
landlord and tenant. The plaintiff in this federal action is the tenant, Dennis
Gallipeau. The defendant is the landlord, Scott Mund. Mr. Gallipeau’s first
amended complaint asserts three claims: breach of the rental agreement, assault,
and intentional infliction of emotional distress. Mr. Mund has moved to dismiss.
South Carolina law applies, because the rental property is in South Carolina, the
rental agreement was entered there, and the torts allegedly occurred there.
The second lawsuit between these same two parties was filed by Mr. Mund
in South Carolina seeking to eject Mr. Gallipeau from the rental property. Mr.
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Case No. 4:25cv229-RH-MAF
Gallipeau alleged, as a basis for a counterclaim as well as, apparently, an
affirmative defense, that Mr. Mund breached the rental agreement. Mr. Mund
obtained a judgment, apparently because Mr. Gallipeau failed to pay the rent
pending a determination of the action as required by South Carolina Code of Laws
§ 27-40-790 or to post a bond to obtain a stay pending appeal as required by § 27-
40-800.
This federal action is before the court on the magistrate judge’s report and
recommendation, which addresses Mr. Mund’s motion to dismiss and also screens
the action as required because Mr. Gallipeau is proceeding in forma pauperis. The
report and recommendation concludes the action should be dismissed based on the
res judicata effect of the state-court judgment and alternatively for failure to
establish that the amount in controversy exceeds the $75,000 jurisdictional
minimum.
Mr. Gallipeau has filed objections. I have reviewed de novo the issues the
objections raise.
Jurisdiction must be present before the merits of an action can properly be
decided. This principle applies to any res judicata defense. The record apparently
establishes that diversity of citizenship existed when this action was filed, because
by then, Mr. Mund had moved to Florida. But the record does not yet show
whether the amount in controversy does or does not exceed $75,000. This order
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Case No. 4:25cv229-RH-MAF
gives Mr. Gallipeau an opportunity to amend to properly alleged the jurisdictional
amount.
On the merits, the South Carolina judgment is fatal to Mr. Gallipeau’s claim
for breach of the rental agreement. But Mr. Gallipeau filed this federal action
before Mr. Mund filed the South Carolina action, and he did not assert his assault
and intentional-infliction claims there. Compare ECF No. 1 (filed May 12, 2025)
with ECF No. 13 at 18 (noting the filing date of the South Carolina ejectment
action as May 22, 2025). He was not required to assert those claims in the South
Carolina action.
First, a defendant’s claim is not a compulsory counterclaim if “at the time
the action was commenced the claim was the subject of another pending action.”
S.C. R. Civ. P. 13(a). Mr. Gallipeau’s assault and intentional-infliction claims were
not compulsory counterclaims in the South Carolina action because he had already
alleged the factual basis of those claims in this federal action, albeit as part of a
claim labeled “retaliation” rather than assault or intentional infliction of emotional
distress.
Second, under the rule against splitting causes of action—the relevant part of
the res judicata doctrine—a party must assert all his related claims in his first
action. See Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 273 F. App’x 256,
265 (4th Cir. 2008). Thus the claim-splitting principle may foreclose claims in the
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second suit, not the first. See id.; see also Maxwell v. Lott, No. 3:23-5037-cmc,
2024 WL 3174498, at *2 (D.S.C. June 26, 2024). Mr. Gallipeau satisfied the
claim-splitting doctrine by including the claims in this action—the first action
between him and Mr. Mund.
It thus cannot be said at this time that Mr. Gallipeau will be unable to pursue
the assault and intentional-infliction claims in this action. This does not mean,
though, that the first amended complaint is sufficient. First, if Mr. Gallipeau claims
damages in excess of $75,000, he must say so. Second, he cannot properly
incorporate all factual allegations into both counts and leave it to the court and the
defendant to figure out which allegations go with which claim. See, e.g., Vibe
Micro, Inc. v. Shabanets, 878 F.3d 1291 (11th Cir. 2018); Paylor v. Hartford Fire
Ins. Co., 748 F.3d 1117, 1125 (11th Cir. 2014). All the allegations—or most of
them—might relate to the intentional-infliction claim, but not all of them relate to
the assault claim. This order grants leave to amend to cure these deficiencies.
IT IS ORDERED:
1. The report and recommendation, ECF No. 16, is accepted in part.
2. The motion to dismiss, ECF No. 13, is granted in part.
3. The first amended complaint, ECF No. 6, is dismissed.
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4. Leave is granted to file a second amended complaint. The deadline to do
so is April 2, 2026. Any second amended complaint must not include the claim
asserted in count one of the first amended complaint.
SO ORDERED on March 12, 2026.
s/Robert L. Hinkle
United States District Judge
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