Felicia Tuitama v. Bank of America, NA

Case: 12-12821 Date Filed: 01/10/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12821
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-00116-TWT
FELICIA TUITAMA,
Plaintiff-Appellant,
versus
BANK OF AMERICA, NA,
RECONTRUST,
LEHMAN XS TRUST 2005-5N,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 10, 2014)
Before MARCUS, ANDERSON, and BLACK, Circuit Judges.
PER CURIAM:
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Felicia Tuitama appeals the dismissal of her complaint in her diversity action
against Bank of America, N.A. and others involved in the foreclosure of her
property in California. The district court dismissed Tuitama’s complaint under the
doctrine of res judicata based on a previously-dismissed action before the United
States District Court for the Central District of California. Tuitama concedes that
the instant case and the California case involve the same parties and causes of
action but contests whether the California court was a court of competent
jurisdiction and whether it rendered a final judgment on the merits. Upon review, 1
we conclude that the California court did have jurisdiction over Tuitama’s claims
and that its dismissal 2 constituted a final judgment on the merits for the purposes of
res judicata. We therefore affirm.
Res judicata bars a subsequent suit when (1) a court of competent
jurisdiction (2) has rendered a final judgment on the merits (3) in a prior action
between identical parties (or their privies) (4) involving the same causes of action.
Ragsdale v. Rubbermaid, Inc., 193 F.3d at 1235, 1238 (11th Cir. 1999). Tuitama
challenges the first and second elements.
1
We review de novo a district court’s conclusions on res judicata. Ragsdale v.
Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).
2
The California court titled its dismissal order “Dismissal by the Court for Failure to
Prosecute,” but the text of the order describes Tuitama’s failure to respond to the court’s order to
show cause, despite making other filings. The order can therefore be read either as a dismissal
for failure to prosecute or a dismissal for failure to comply with the court’s orders. We note this
ambiguity but find it inconsequential to the disposition of this appeal.
2
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As to the first element, Tuitama argues the California court lacked subject
matter jurisdiction over her claims because the action “rightly belonged in
Georgia’s Northern District.” Tuitama fails to explain why this is true, however,
and her argument fails as a matter of logic because whether federal subject matter
jurisdiction exists does not depend on the location of a particular district court.
Diversity jurisdiction establishes the power of any federal court to hear a claim, so
if the District Court for the Northern District of Georgia possesses subject matter
jurisdiction over Tuitama’s claims, so too did the District Court for the Central
District of California. Federal subject matter jurisdiction does, in fact, exist
because the parties are completely diverse—regardless of whether Tuitama is a
citizen of Georgia or California—and the amount in controversy exceeds $ 75,000.
28 U.S.C. § 1332; see also Fritz v. Am. Home Shield Corp., 751 F.2d 1152, 1153
(11th Cir. 1985). At most, Tuitama’s arguments may concern venue, but a defect
in venue has no bearing on res judicata. See Wachovia Bank, N.A. v. Schmidt, 546
U.S. 303, 316 (2006) (“Venue is largely a matter of litigational convenience [and]
is waived if not timely raised.”).
As to the second element, Tuitama argues the California court’s dismissal
for failure to prosecute was not a decision on the merits in light of California state
law. However, contrary to Tuitama’s assertion, federal law controls. CSX
Transp., Inc. v. Bhd. of Maintenance of Way Employees, 327 F.3d 1309, 1316
3
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(11th Cir. 2003). Although the federal common law that governs the claim-
preclusive effect of a dismissal by a federal court sitting in diversity may in some
instances incorporate state law, it does not do so in the instant case because no
state substantive rights were at issue in the California court’s ruling. See Semtek
Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508-09 (2001). Rather, the
California court dismissed Tuitama’s claim for failure to prosecute and failure to
comply with the court’s orders, reasons that concern the court’s “interest in the
integrity of [its] own processes.” Id. at 509; see also Vasquez v.
Bridgestone/Firestone, Inc., 325 F.3d 665, 678-79 (5th Cir. 2003) (“The district
court, although exercising diversity jurisdiction, dismissed on federal procedural
grounds, thus distinguishing Semtek.”).
We therefore need not consult California law and can instead rely
exclusively on federal law, which clearly dictates that dismissal for failure to
prosecute or for noncompliance with a court order is a judgment on the merits with
claim-preclusive effect. Bank of America points to Federal Rule of Civil
Procedure 41(b), which states that dismissal for failure to prosecute or to comply
with a court order “operates as an adjudication on the merits.” However, this rule
is not always dispositive of the “adjudication on the merits” element of res
judicata. Semtek, 531 U.S. at 503 (“In short, it is no longer true that a judgment
‘on the merits’ is necessarily a judgment entitled to claim preclusive effect; and
4
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there are a number of reasons for believing that the phrase ‘adjudication on the
merits’ does not bear that meaning in Rule 41(b).”). Nevertheless, numerous
decisions support the conclusion that a dismissals like the one at issue are
preclusive. See, e.g., Bierman v. Tampa Elec. Co., 604 F.2d 929, 930-31 (5th Cir.
1979); 3 Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776-77 (6th Cir. 2009); Kimmel
v. Tex. Commerce Bank, 817 F.2d 39, 40-41 (7th Cir. 1987); see also 18A Charles
A. Wright & Arthur R. Miller, Federal Practice and Procedure § 4435 (2d ed.
2002) (“[D]ismissals for failure of the plaintiff to prosecute or to comply
with . . . any order of the court . . . operate as an adjudication on the merits unless
the court specifies otherwise . . . . Ordinarily no difficulty is encountered in this
area.”). Moreover, the traditional interests underlying res judicata justify giving
the California court’s order preclusive effect even without reliance on the text of
Rule 41(b). See Nasser v. Isthmian Lines, 331 F.2d 124, 128 (2d Cir. 1964)
(“[E]ven if this result were not required by the terms of Rule 41(b), it would seem
necessary as a matter of sound judicial administration.” (footnote omitted)); Wright
& Miller, supra, § 4440 (noting that the purpose of establishing “a strong sanction
to enforce compliance with proper procedure[—][q]uite apart from Rule 41(b)[—
]would suggest that penalty dismissals often should preclude a second action on
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
5
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the same claim.”). For these reasons, we conclude that the California court’s
dismissal operated as an adjudication on the merits entitled to preclusive effect. 4
Accordingly, all four elements of res judicata have been established, and the
district court did not err in dismissing Tuitama’s claims.
AFFIRMED.
4
Tuitama suggests she intended to respond to the California court’s order to show cause
with a motion to transfer venue to Georgia but failed to do so through an innocent mistake. This
suggestion is inconsequential because, under those circumstances, Tuitama should have sought
relief on the basis of excusable neglect before the California court. See Fed. Election Comm’n v.
Al Salvi for Senate Comm., 205 F.3d 1015, 1020 (7th Cir. 2000). In any event, the record
discloses no reason the California court would have granted a motion for change of venue to the
Northern District of Georgia, nor any reason jurisdiction would have been valid there but not in
California.
6