Jussi K. KIVISTO, Plaintiff-Appellant, v. Michael David SOIFER, Kenneth Lawrence Marvin, Miller, Cranfield, Paddock and Stone, PLC, Susan I. Robbins, Defendants-Appellees.
No. 11-11692
United States Court of Appeals, Eleventh Circuit
Nov. 18, 2011
455 Fed. Appx. 923
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
Non-Argument Calendar.
Barry Richard, Mary Hope Keating, Karusha Y. Sharpe, Greenberg Traurig, LLP, Tallahassee, FL, Robert J. Wierenga, Kimberly K. Kefalas, Miller Canfield Paddock & Stone, PLC, Ann Arbor, MI, W. Scott Turnbull, Crary Buchanan Bowdish Bovie Beres Elder & Thomas Chartered, Stuart, FL, for Defendants-Appellees.
Jussi K. Kivisto, proceeding pro se, appeals the district court‘s dismissal of his claims as barred by res judicata. We affirm.
In 2005, Susan I. Robbins, an attorney with Miller, Cranfield, Paddock and Stone, PLC, filed a complaint with the Florida Bar regarding Kivisto, an attorney who was licensed to practice in Florida. Michael David Soifer and Kenneth Lawrence Marvin, both counsel for the Florida Bar, conducted an investigation of Robbins‘s complaint. As a result of the investigation, in 2007 the Florida Bar filed a disciplinary proceeding against Kivisto with the Florida Supreme Court.
In 2008, before the Florida Supreme Court resolved the disciplinary proceeding, Kivisto filed a complaint in federal district court (Kivisto I) alleging that the defendants in this case, in addition to several other attorneys and another law firm, violated various sections of
Kivisto then filed a second law suit in district court, alleging that during the investigation of and disciplinary proceedings against him, the defendants violated
We review de novo a district court‘s res judicata or collateral estoppel determination. EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004). Under res judicata, “a final judgment on the merits bars the parties to a prior action from relitigating a cause of action that was or could have been raised in that action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001). A party seeking to invoke res judicata must satisfy four elements: “(1) there is a final judgment on the merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the parties, or those in privity with them, are identical in both suits; and (4) the same cause of action is involved in both cases.” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).
Kivisto contests only the fourth element, arguing that the instant cause of action is distinct and could not have been brought in Kivisto I because it arose when the fabricated evidence was used before the Florida Supreme Court, which occurred after he filed suit in Kivisto I in 2008. But “if a case arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action,” then the two cases “arise out of the same transaction or series of transactions” and are the same “cause of action” for purposes of res judicata. Id. at 1239 (internal quotation marks omitted). Further, under res judicata, “claims that ‘could have been brought’ are claims in existence at the time the original complaint is filed.” In re Piper Aircraft Corp., 244 F.3d at 1298-99 (internal quotation marks omitted).
Here, Kivisto concedes that his claims are “based on fabrication of evidence” that allegedly occurred during the complaint, investigation, and initiation of disciplinary proceedings before the Florida Supreme
AFFIRMED.