USCA11 Case: 20-13473 Date Filed: 02/01/2022 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13473
Non-Argument Calendar
____________________
MARK BUTTERFIELD,
Plaintiff-Appellant,
versus
JETBLUE AIRWAYS CORPORATION,
a foreign for-profit corporation,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-60660-WPD
____________________
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2 Opinion of the Court 20-13473
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Mark Butterfield sued his former employer, JetBlue Airways
Corporation, for retaliation under the Florida Whistleblower Act,
Fla. Stat. § 448.102. Butterfield appeals the district court’s order
dismissing his complaint because it was barred by the doctrine of
res judicata and also failed to state a claim for relief. We affirm
because Butterfield’s complaint failed to state a claim.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Butterfield was a flight attendant for JetBlue. He was hired
in 2004 and worked out of the Fort Lauderdale-Hollywood Inter-
national Airport in Broward County, Florida.
In August 2013, Butterfield sued JetBlue in Florida state
court. Butterfield alleged that in 2012 he had objected to, and re-
fused to participate in, violations of federal aviation safety regula-
tions after JetBlue let an unruly passenger onto a flight. JetBlue
retaliated against him in violation of the Florida Whistleblower
Act, Butterfield alleged, by suspending him from duty.
In August 2018, Butterfield’s attorney deposed a witness in
the ongoing lawsuit. Butterfield still worked for JetBlue at the time
of the deposition. Butterfield’s attorney showed the witness a flight
manifest to impeach her claim that she hadn’t been on the flight
with the unruly passenger. The witness’s lawyer angrily asked
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20-13473 Opinion of the Court 3
Butterfield’s attorney how he had obtained the flight manifest and
said that JetBlue would find a reason to fire Butterfield.
In September 2018, an employee in JetBlue’s Human Re-
sources department called Butterfield to talk about the flight man-
ifest. Butterfield replied that “he was not in possession of the doc-
ument.”
On October 12, 2018, Butterfield’s supervisor ordered him
to meet with Marilyn Mendez, who was also in JetBlue’s Human
Resources department. Mendez told Butterfield that she needed to
ask him questions about an ongoing JetBlue investigation. Mendez
showed Butterfield the JetBlue policy requiring him to cooperate
with internal investigations or face termination. Butterfield told
Mendez that he wanted to cooperate but couldn’t discuss anything
about his lawsuit without first talking to his attorney. When But-
terfield requested that his attorney be present during the question-
ing, Mendez refused. Mendez agreed to let Butterfield call his at-
torney but told him that he wasn’t cooperating. Butterfield left the
meeting and spoke with his attorney about how to deal with the
situation.
After consulting with his attorney that same day, Butterfield
called Mendez to tell her that he would cooperate with the investi-
gation, but his calls went to voicemail. Butterfield then emailed
Mendez, also on that same day, and said that he would cooperate
even though the investigation was “retaliatory” and “illegal.” On
October 18, 2018, Butterfield’s supervisor told him that he was sus-
pended for failing to cooperate with the investigation. Mendez
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4 Opinion of the Court 20-13473
then emailed Butterfield and told him that because he had refused
to answer her questions during the meeting, JetBlue was suspend-
ing him. In November 2018, JetBlue formally terminated Butter-
field for violating company policy.
By this point, JetBlue had moved for summary judgment in
Butterfield’s ongoing state court lawsuit. In February 2019, Butter-
field moved the state trial court for leave to file an amended com-
plaint raising a retaliation claim under the Florida Whistleblower
Act because of his termination. The state trial court granted Jet-
Blue’s motion for summary judgment and denied Butterfield’s mo-
tion to amend his complaint as moot. The state trial court dis-
missed Butterfield’s claims with prejudice and entered final judg-
ment for JetBlue. Butterfield did not appeal the summary judg-
ment for JetBlue to the state appellate court.
In March 2020, Butterfield again sued JetBlue in Florida state
court. JetBlue removed this second lawsuit to federal court. In his
amended complaint, Butterfield brought a single retaliation claim
under the Act. Butterfield alleged that the active pursuit of his first
lawsuit against JetBlue, including the deposition involving the
flight manifest, was a protected activity under the Act. He also al-
leged that he engaged in protected activity when he objected to
Mendez’s request that he discuss the flight manifest without his at-
torney being present, which amounted to witness tampering. Jet-
Blue violated the Act, Butterfield alleged, by retaliating against him
for these protected activities and firing him.
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JetBlue moved to dismiss Butterfield’s complaint for three
reasons. First, JetBlue argued that, because the state court dis-
missed Butterfield’s first lawsuit after he attempted to amend his
complaint to raise the retaliation claim that he was raising here, his
new lawsuit was barred by the doctrine of res judicata. Second,
JetBlue argued that the district court lacked jurisdiction under the
Rooker-Feldman1 doctrine to review the state court’s final judg-
ment in Butterfield’s first lawsuit, and Butterfield’s second lawsuit
was just “an end-round around the state court’s judgment.” And
third, JetBlue argued that Butterfield’s complaint failed to state a
claim under the Act.
The district court granted JetBlue’s motion to dismiss. The
district court concluded that Butterfield’s second lawsuit was
barred by the doctrine of res judicata because he had attempted to
raise in his first lawsuit the same retaliation claim he was raising
here, but the state trial court had denied his motion to amend the
complaint.
The district court also concluded that Butterfield’s com-
plaint failed to state a claim because it did not plausibly allege that
he had engaged in statutorily protected activity. As to Butterfield’s
first lawsuit, the district court concluded that he had “failed to al-
lege that he objected to or refused to participate in an actual viola-
tion of the law.” As to Butterfield’s allegation that he objected to
1See Rooker v. Fidelity Tr. Co.,
263 U.S. 413 (1923); D.C. Ct. of Appeals v.
Feldman,
460 U.S. 462 (1983).
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6 Opinion of the Court 20-13473
Mendez’s threats to fire him, the district court also concluded that
he did not plausibly allege that this was “an actual violation of the
law.”
Butterfield appeals the district court’s dismissal order.
STANDARD OF REVIEW
We review de novo whether we have jurisdiction under the
Rooker-Feldman doctrine. Lozman v. City of Riviera Beach,
713
F.3d 1066, 1069 (11th Cir. 2013). We also review de novo the dis-
trict court’s dismissal of a complaint for failure to state a claim.
Am. Dental Ass’n v. Cigna Corp.,
605 F.3d 1283, 1288 (11th Cir.
2010). A “complaint must contain sufficient factual matter, ac-
cepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly,
550 U.S. 544, 570 (2007)). A plaintiff must plead “fac-
tual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Id. Our
review has two steps: (1) we “eliminate any allegations in the com-
plaint that are merely legal conclusions”; and (2) for any “well-
pleaded factual allegations, we assume their veracity and then de-
termine whether they plausibly give rise to an entitlement to re-
lief.” Am. Dental, 605 F.3d at 1290 (cleaned up).
DISCUSSION
Butterfield argues that the district court erred in concluding
that: (1) the doctrine of res judicata barred his second lawsuit
against JetBlue; and (2) he failed to state a claim under the Act.
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20-13473 Opinion of the Court 7
JetBlue responds that res judicata barred Butterfield’s second law-
suit and, even if it didn’t, Butterfield failed to state a claim. JetBlue
also contends, as an alternative basis for affirmance, that Butter-
field’s second lawsuit was barred by the Rooker-Feldman doctrine.
We conclude that the Rooker-Feldman doctrine doesn’t bar But-
terfield’s complaint, and we assume, without deciding, that res ju-
dicata doesn’t apply here. We nevertheless affirm. The district
court correctly concluded that Butterfield’s complaint failed to
state a claim.
The Rooker-Feldman Doctrine
JetBlue argues that Butterfield’s retaliation claim is barred
under the Rooker-Feldman doctrine because his second lawsuit re-
litigates a claim that was decided in JetBlue’s favor by the state
court in his first lawsuit. The Rooker-Feldman doctrine “is a juris-
dictional rule that precludes the lower federal courts from review-
ing state court judgments.” Alvarez v. Att’y Gen.,
679 F.3d 1257,
1262 (11th Cir. 2012). In federal courts, “jurisdiction takes prece-
dence over the merits. Unless and until jurisdiction is found, both
appellate and trial courts should eschew substantive adjudication.”
Belleri v. United States,
712 F.3d 543, 547 (11th Cir. 2013) (citation
omitted). Because a district court lacks jurisdiction where Rooker-
Feldman applies, we first consider whether the Rooker-Feldman
jurisdictional bar applies before we reach the merits of Butterfield’s
claim.
“The Rooker-Feldman rule bars ‘a party losing in state court
. . . from seeking what in substance would be appellate review of
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8 Opinion of the Court 20-13473
the state judgment in a United States district court, based on the
losing party’s claim that the state judgment itself violates the loser’s
federal rights.’” Rohe v. Wells Fargo Bank, N.A.,
988 F.3d 1256,
1262–63 (11th Cir. 2021) (quoting Johnson v. De Grandy,
512 U.S.
997, 1005–06 (1994)). In other words, this doctrine “eliminates fed-
eral court jurisdiction over those cases that are essentially an appeal
by a state court loser seeking to relitigate a claim that has already
been decided in a state court.” Target Media Partners v. Specialty
Mktg. Corp.,
881 F.3d 1279, 1281 (11th Cir. 2018).
But the Rooker-Feldman jurisdictional bar is “a narrow
one.”
Id. As we have recently said, “it will almost never apply.”
Behr v. Campbell,
8 F.4th 1206, 1212 (11th Cir. 2021). “Only when
a losing state court litigant calls on a district court to modify or
‘overturn an injurious state-court judgment’ should a claim be dis-
missed under Rooker-Feldman; district courts do not lose subject
matter jurisdiction over a claim ‘simply because a party attempts
to litigate in federal court a matter previously litigated in state
court.’”
Id. at 1210 (quoting Exxon Mobil Corp. v. Saudi Basic In-
dus. Corp.,
544 U.S. 280, 292–93 (2005)).
To determine whether a party’s federal claim “invite[s] re-
jection of a state court decision,” we ask whether the claim was
“one actually adjudicated by a state court” or one “‘inextricably in-
tertwined’ with a state court judgment.” Target Media, 881 F.3d
at 1281. But, as we have recently clarified, “considering whether a
claim is ‘inextricably intertwined’ with a state court judgment is
not a second prong of the analysis.” Behr, 8 F.4th at 1212. Rather,
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20-13473 Opinion of the Court 9
“it is merely a way of ensuring that courts do not exercise jurisdic-
tion over the appeal of a state court judgment simply because the
claimant does not call it an appeal of a state court judgment.” Id.;
see also id. at 1211 (explaining that because the Rooker-Feldman
doctrine “bars all appeals of state court judgments” to a federal dis-
trict court, a plaintiff cannot circumvent this bar by “call[ing] the
appeal something else”); May v. Morgan Cnty. Ga.,
878 F.3d 1001,
1005 (11th Cir. 2017) (explaining that a “state court loser cannot
avoid Rooker-Feldman’s bar by cleverly cloaking her pleadings in
the cloth of a different claim”).
Here, the state trial court didn’t actually adjudicate Butter-
field’s retaliation claim under the Florida Whistleblower Act aris-
ing from his 2018 termination. Because this claim was absent from
Butterfield’s complaint in his first lawsuit, the state trial court’s
summary judgment didn’t include this claim. Although Butterfield
moved for leave to amend his complaint in state court to raise a
retaliation claim identical to the one in his second lawsuit, the state
trial court didn’t rule on this motion on the merits. Rather, it de-
nied Butterfield’s motion for leave to amend as “moot.” Under
Florida law, an “issue is moot when the controversy has been so
fully resolved that a judicial determination can have no actual ef-
fect.” See Godwin v. State,
593 So. 2d 211, 212 (Fla. 1992). The
state trial court’s denial of the motion as moot therefore wasn’t an
adjudication on the merits of the proposed retaliation claim. See
id. Thus, Butterfield’s second lawsuit in federal court didn’t com-
plain of an injury “caused by the judgment” in his first lawsuit in
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10 Opinion of the Court 20-13473
state court and didn’t call for the district court to “modify” or
“overturn” that judgment. Behr, 8 F.4th at 1210, 1212.
Nor is Butterfield’s retaliation claim in his second lawsuit in-
extricably intertwined with the state court judgment. In his first
lawsuit, Butterfield alleged that he engaged in protected activity in
2012 by objecting to JetBlue allowing an unruly passenger onto a
plane, and he alleged that JetBlue retaliated against him by sus-
pending him. In his second lawsuit, Butterfield alleged that he en-
gaged in protected activities by filing his first lawsuit in 2013, liti-
gating that case, and objecting in 2018 to JetBlue’s efforts to force
him to discuss the flight manifest. Butterfield alleged that JetBlue
retaliated against him in 2018 by terminating him. Butterfield’s
two lawsuits “present distinct issues,” involving different acts on
his part that were allegedly protected under the statute, and differ-
ent acts on JetBlue’s part that allegedly constituted retaliation. See
Target Media, 881 F.3d at 1287. We cannot say that Butterfield in
his second lawsuit in federal court effectively appealed the state
court’s judgment while calling that appeal “something else.” See
Behr, 8 F.4th at 1211.
Butterfield’s second lawsuit didn’t ask the district court to
“review or reject” the state court’s judgment in his first lawsuit
“rendered before the district court litigation began.” See id. at
1212. Because this case doesn’t fall within “Rooker-Feldman’s nar-
row boundaries,” the district court had jurisdiction. See id. at 1211.
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The Florida Whistleblower Act
The district court concluded that Butterfield failed to state a
claim under the Florida Whistleblower Act. Butterfield argues that
the district court misinterpreted the Act and applied the wrong
standard to his claim.
Under the Act, an “employer may not take any retaliatory
personnel action against an employee because the employee has”
“[o]bjected to, or refused to participate in, any activity, policy, or
practice of the employer which is in violation of a law, rule, or reg-
ulation.”
Fla. Stat. § 448.102(3) (2020). Florida courts have said that
“retaliation claims under the [Act] are analyzed in the same manner
as Title VII retaliation claims.” See Aery v. Wallace Lincoln-Mer-
cury, LLC,
118 So. 3d 904, 912 (Fla. Dist. Ct. App. 2013) (citation
omitted).
To establish a prima facie claim under the Act, the plaintiff
must show that: “(1) he engaged in protected activity; (2) he suf-
fered an adverse employment action; and (3) there is a causal rela-
tion between the two events.” Chaudhry v. Adventist Health Sys.
Sunbelt, Inc.,
305 So. 3d 809, 814–15 (Fla. Dist. Ct. App. 2020) (cita-
tion and quotation marks omitted). To satisfy the standard’s first
prong, the plaintiff must show that he “objected to or refused to
participate in (i) an illegal activity, policy, or practice of an em-
ployer, (ii) illegal activity of anyone acting within the legitimate
scope of their employment, or (iii) illegal activity of an employee
that has been ratified by the employer.” Aery,
118 So. 3d at 916
(cleaned up).
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12 Opinion of the Court 20-13473
Florida’s intermediate appellate courts disagree about
whether this first prong requires the employee to show an actual
violation of the law, and the Florida Supreme Court has not re-
solved the disagreement. The Fourth District Court of Appeal held
in Aery that an employee satisfies this first prong by showing that
he had “a good faith, objectively reasonable belief that his activity
is protected by the statute.”
Id. (cleaned up). This is the standard
that Butterfield asks us to apply. But the Second District Court of
Appeal has said that the first prong requires the employee to “prove
that he objected to an actual violation of law or that he refused to
participate in activity that would have been an actual violation of
law.” Kearns v. Farmer Acquisition Co.,
157 So. 3d 458, 466 (Fla.
Dist. Ct. App. 2015). This is how the district court construed the
prima facie case’s first prong. JetBlue urges us to do the same. We
need not resolve whether we should follow Aery or Kearns; even
under Aery’s “good faith” standard, the standard Butterfield asks us
to apply, his complaint failed to state a claim under the Act. 2
2 We note that the Fourth District Court of Appeal has said that it may need
to reconsider its decision in Aery in light of Kearns. See Usher v. Nipro Dia-
betes Sys., Inc.,
184 So. 3d 1260, 1262 (Fla. Dis. Ct. App. 2016) (Gross, J., con-
curring) (explaining that it was not necessary in that case to reconsider Aery,
which “may conflict with the thoughtful analysis in” Kearns, because the plain-
tiff pleaded actual violations of law); see also LE Publ’ns, Inc. v. Kohl,
298 So.
3d 642, 646–47 (Fla. Dist. Ct. App. 2020) (concluding that because the defend-
ant waived the issue of whether “the plaintiff’s burden [was] to establish either
an actual violation or a reasonable belief of a violation” of law, whether the
court should revisit Aery was “a question for another day”).
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20-13473 Opinion of the Court 13
Butterfield alleged that he engaged in protected activity un-
der the Act by filing his first lawsuit in state court against JetBlue,
taking a deposition in furtherance of that lawsuit where his attor-
ney produced the flight manifest, and objecting to Mendez’s re-
quest that he discuss the flight manifest on pain of termination.
None of these activities supports a claim under the Act.
As to Butterfield’s first lawsuit against JetBlue, it was filed in
2013 and he wasn’t terminated until November 2018. His com-
plaint contains no allegations from which we can plausibly infer
that the filing of this first lawsuit was the cause of his termination.
In a Title VII retaliation case, the “burden of causation can be met
by showing close temporal proximity between the statutorily pro-
tected activity and the adverse employment action.” Thomas v.
Cooper Lighting, Inc.,
506 F.3d 1361, 1364 (11th Cir. 2007). “But
mere temporal proximity, without more, must be ‘very close,’”
and a gap of just “three to four month[s]” “between the statutorily
protected expression and the adverse employment action is not
enough.”
Id. (citation omitted). Because the standards governing
a Title VII retaliation claim apply to a prima facie retaliation claim
under the Florida Whistleblower Act, see Aery,
118 So. 3d at 912,
Butterfield failed to plausibly allege that his filing of his first lawsuit
in 2013 was the cause of his termination five years later in 2018.
As to the 2018 deposition in his first lawsuit, Butterfield’s
second lawsuit alleged that his attorney tried to impeach a witness
with a flight manifest to “demonstrate that the [witness] was actu-
ally on the subject flight when she was claiming that she had not
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14 Opinion of the Court 20-13473
been.” Butterfield didn’t allege that, in conducting this impeach-
ment, he was objecting to or refusing to participate in an activity
on JetBlue’s part that Butterfield reasonably believed violated the
law. Nor did Butterfield allege that the JetBlue employee he was
deposing broke the law in the legitimate scope of her employment
or that JetBlue had ratified the illegal conduct she had engaged in.
Thus, Butterfield failed to allege that the taking of this deposition
was a protected activity under the Act. See
id. at 916.
Finally, as to Butterfield’s meeting with Mendez, he alleged
that his objections to her demand that he talk about the flight man-
ifest was a protected activity because her threat to terminate him if
he refused was witness tampering, in violation of Florida Statutes
section 914.22(1)(a). We disagree. Witness tampering requires
proof that a person threatened another with the intent to cause or
induce any person to “[w]ithhold testimony, or withhold a record,
document, or other object, from an official investigation or official
proceeding.”
Fla. Stat. § 914.22(1)(a). Butterfield didn’t allege that
Mendez threatened him with the intent to cause him (or anyone
else) to withhold evidence in an official proceeding. Rather, he al-
leged that she tried to “force him” to talk about the flight manifest.
Because Florida’s witness tampering statute criminalizes efforts to
prevent—rather than compel—the disclosure of information, any
belief on Butterfield’s part that Mendez was breaking the law
wasn’t “objectively reasonable.” See Aery,
118 So. 3d at 916.
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20-13473 Opinion of the Court 15
Because Butterfield’s complaint in his second lawsuit against
JetBlue failed to state a claim under the Act, we affirm the district
court’s order dismissing it.
AFFIRMED.
