Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 1 of 12
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` IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF ALABAMA
`NORTHERN DIVISION
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`NUE CHEER FRANKLIN
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`Plaintiff,
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`v.
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`Defendants.
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`)
`)
`)
`ARBOR STATION, LLC,
`JUSTIN MATTHEW PARNELL, esq., )
`PARNELL AND CRUM, P.A.,
` )
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`CASE NO. 2:11-cv-294-MEF
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`))
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`))
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`))
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`)
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`REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
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`Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United
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`States Magistrate Judge for review and submission of a report with recommended findings
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`of fact and conclusions of law (Doc. 6, filed April 18, 2011). For good cause, the Magistrate
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`Judge recommends that this case be dismissed prior to service of process pursuant to 28
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`U.S.C. § 1915(e)(2)(B).1
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`I. INTRODUCTION
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`The Plaintiff, Nue Cheer Franklin, (“Franklin”) who is proceeding pro se, filed this
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`action pursuant to 42 U.S.C. § 1983 on April 18, 2011. In her Complaint, Franklin alleges
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`that Arbor Station, an apartment complex located in Montgomery, Alabama where she
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` The statute provides, in pertinent part:“[T]he court shall dismiss the case at any
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`time if the court determines that . . . the action or appeal – (i) is frivolous or malicious, (ii)
`fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against
`a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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`Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 2 of 12
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`currently resides, filed, through its counsel, Justin Matthew Parnell,, an unlawful detainer
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`complaint against her in the District Court for Montgomery County. She further alleges that
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`Arbor Station prevailed in that complaint. Franklin paid a supersedeas bond and appealed
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`to the Circuit Court of Montgomery County, Alabama. While her appeal was pending, Arbor
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`Station is alleged to have obtained a Writ of Possession in violation of Ala. Rule Civ. Pro.
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`62 (d) and Franklin’s Fifth Amendment right to due process. (Doc. 1, Complaint and Doc.
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`15, June 22, 2011 Memorandum Opinion and Order and See Arbor Station Apartments v.
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`Nue Franklin DV- 2011-52.
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`Franklin filed a Motion to Amend the Complaint on April 28, 2011. (Doc. 11). The
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`Magistrate Judge recommended dismissal of the Complaint and denial of the Motion to
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`Amend. (Doc. 12). Prior to the Court entering an Order on the Recommendation, Franklin
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`filed a Second Motion to Amend and a Second Amended Complaint. (Doc. 14). On June
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`22, 2011, the Court entered an Order adopting the Recommendation to the extent that it
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`recommends dismissal of the claims in the Complaint (Doc. 1) and denial of the Motion to
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`Amend filed April 28, 2011. (Doc. 11). The Court further Ordered that the Motion to
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`Amend filed on May 23, 2011 (Doc. 14) be Granted in Part and Denied in Part. Finally, the
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`Court Ordered Franklin to file an Amended Complaint which does “not include any claims
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`against Arbor Station pursuant to 42 U.S.C. § 1983" and does not “contain claims against
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`either Judge Pool or Judge Reese.” (Doc. 15). On June 28, 2011, Franklin filed a Third
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`Amended Complaint (Doc. 16). Following a return from appeal on the Court’s June 22,
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`Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 3 of 12
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`2011 Memorandum Opinion and Order, Franklin filed a Fourth Amended Complaint (Doc.
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`30).
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`The allegations in her Fourth Amended Complaint arise from same set of facts plead
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`in the initial Complaint filed in this court. In the Fourth Amended Complaint, Franklin states
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`that there was an underlying action initiated by Arbor Station in Montgomery County District
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`Court alleging unlawful detainer and seeking possession of property. Plaintiff states she filed
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`an appeal from this ruling. While her appeal was pending, Arbor Station is alleged to have
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`obtained a Writ of Possession in violation of Ala. Rule Civ. Pro. 62 (d) and Franklin’s Fifth
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`Amendment right to due process. (Doc. 1, Complaint; Doc. 30, Fourth Amended Complaint
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`and Doc 15, June 22, 2011 Memorandum Opinion and Order).
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`Franklin alleges state law claims against Arbor Station pursuant to Ala. Code §§ 35-
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`9A-461(a)(c)(e), 35-9A-407, 35-9A-201, 35-9A-163(a)(3), 35-9A-421, 6-6-332; and for
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`Fraud and Unjust Enrichment. She also alleges state law claims against attorney Justin
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`Matthew Parnell pursuant to Ala. Code § 35-9A-461(a) and (e) and for negligence or legal
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`malpractice. She also alleges state law claims against Parnell & Crum, P.A. for negligent
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`hiring, negligent training, and negligent supervision. In addition, Franklin alleges claims
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`pursuant to the Fair Debt Collection Practices Act §§ 15 U.S.C. 1692e(2)(5)(10) against
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`Arbor Station, a debt collector, for using “false and misleading information” during various
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`proceedings in the prior state court action involving unlawful detainer and seeking possession
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`of her property. Franklin also alleges a claim pursuant to the FDCPA § 1692f(1) against
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`Arbor Station for an attempt to collect legal fees from her which is prohibited by the
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`Alabama Uniform Residential Landlord Tenant Act. Because the action before this court
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`now is premised on a prior state court action, the court will consider whether the current
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`action is barred by res judicata.
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`II. DISCUSSION AND ANALYSIS
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`“Our res judicata analysis has always required a consideration of the facts and legal
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`theories of two causes of action as well as the rights and duties involved in each case.”
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`Draper v. Atlanta Indep. Sch. Sys., 377 Fed. Appx. 937, 940 (11 Cir. 2010) certiorari
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`denied, 131 S.Ct. 342, 178 L.Ed. 2d 223, 79 USLW 3205 (Oct. 4, 2010) citing Manning v.
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`City of Auburn, 953 F.2d 1355, 1359 (11 Cir. 1992). “We have consistently concluded that
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`when the substance and facts of each action are the same, res judicata bars the second suit.”
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`Id. In I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541 (11 Cir. 1986), the Court
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`summarized the doctrine of res judicata as follows:
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`Res judicata or claim preclusion refers to the preclusive effect of a judgment
`in foreclosing relitigation of matters that were litigated or could have been
`litigated in an earlier suit. . . . In order for the doctrine of res judicata to bar a
`subsequent suit, four elements must be present: (1) there must be a final
`judgment on the merits; (2) the decision must be rendered by a court of
`competent jurisdiction; (3) the parties, or those in privity with them, must be
`identical in both suits; and (4) the same cause of action must be involved in
`both cases.
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`I.A. Durbin, 793 F.2d at 1549 (citations omitted). See also Manning, 953 F.2d at 1358
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`(recognizing Alabama case law also sets forth these four requirements in order for res
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`judicata to attach).
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`Indeed, the general rule is that a federal court will apply the law of the state in which
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`it sits on the doctrine of res judicata. Wesch v. Folsom, 6 F. 3d 1465 (11 Cir. 1993); but see,
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`Diaz v. Moore, 861 F.Supp. 1041, 1046, fn 16 (N.D. Fla.1994) (recognizing that some courts
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`have called this rule into question, where, as in the instant case, a federal court is
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`“considering the preclusive effect of a prior federal court judgment.”)(emphasis in original.)
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`Federal common law and Alabama common law are consistent as to the law of res judicata
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`and the court will rely on both state and federal cases in this recommendation. The court now
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`turns its attention to how the elements of res judicata apply in the instant action.
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`(1)
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`A Final Judgment.
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`On January 6, 2011, Arbor Station filed an unlawful detainer action against Franklin
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`in Montgomery County District Court. See Arbor Station Apartments v. Nue Franklin DV-
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`2011-52. Justin Matthew Parnell represented Arbor Station in this action. On February 11,
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`2011, Montgomery County District Court Judge Jimmy Pool entered judgment for possession
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`in favor of Arbor Station. Franklin appealed the judgment to the Montgomery County
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`Circuit Court and the case was remanded to District Court on April 11, 2012. On remand,
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`the District Court issued a writ of possession. Thereafter, Franklin filed a Motion to Quash
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`the Writ of Possession which was denied on April 18, 2011. On September 2, 2011, Franklin
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`filed a Motion to Vacate Order and Return Supersedeas Bond. The District Court denied the
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`Motion on November 30, 2011. On December 13, 2011, Franklin filed a Motion to Amend
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`Judgment. By Order of December 29, 2011, the District Court set a hearing on that Motion
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`Page 5 of 12
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`Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 6 of 12
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`for March 5, 2012 at 8:30 am. On March 5th, Judge Pool entered an Order denying
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`Defendant’s Motion to Amend Judgment.
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`The court now turns to whether the underlying state court judgment in favor of
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`Plaintiff on the writ of possession is a judgment on the merits.
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`“A judgment is on the merits when it amounts to a decision as to the respective
`rights and liabilities of the parties, based on the ultimate fact or state of the
`parties disclosed by the pleadings or evidence, or both, and on which the right
`of recovery depends, irrespective of formal, technical, or dilatory objections
`or contentions. Key factors in determining whether a judgment may be
`considered as on the merits are that there have been notice and an opportunity
`to be heard . . .
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`“It is not necessary, however, that there should have been a trial. If the
`judgment is general, and not based on any technical defect or objection, and
`the parties had a full legal opportunity to be heard on their respective claims
`and contentions, it is on the merits, although there was no actual hearing on the
`facts of the case.”
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`Mars Hill Baptist Church of Anniston, Ala., Inc. v. Mars Hill Missionary Baptist Church, 761
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`So.2d 975 (Ala. 2000). See also Bd. of Tr. of the Univ. of Ala. v. Am. Res. Ins. Co., Inc., 5
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`So.3d 521, 533 (Ala. 2008) (same); A.B.C. Truck Lines v. Kenemer, 247 Ala. 543, 546, 25
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`So.2d 511, 513 (Ala.1946) (same).
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`A review of the Case Action Summary in DV-2011-52 makes clear that District Court
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`Judge Jimmy Pool held a hearing on February 11, 2011 prior to entering judgment for
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`possession in favor of the plaintiff Arbor Station. Franklin appealed this judgment to the
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`Circuit Court. Following remand, the District Court issued a writ of possession. Thereafter,
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`the District Court denied Franklin’s Motion to Quash the Writ of Possession. Franklin filed
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`Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 7 of 12
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`a Motion to Amend Judgment which was denied after a hearing by District Court Judge
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`Jimmy Poole on March 5, 2012. Thus, it is clear that Franklin had notice of the state court’s
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`action and had more than one opportunity to be heard. Accordingly, the Court concludes that
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`the state court’s determination in favor of Arbor Station on the unlawful detainer action and
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`the issuance of the writ of possession was a final judgment on the merits.
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`(2) Court of Competent Jurisdiction
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`Arbor Station filed an unlawful detainer action against Franklin in the District Court
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`of Montgomery County, Alabama pursuant to Ala. Code 1975 §§ 6-6-310 et seq. See Arbor
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`Station Apartments v. Nue Franklin DV- 2011-52. In the Complaint, Plaintiff demands
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`possession from Defendant for the dwelling located at 2475-G Meadow Ridge Lane,
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`Montgomery Alabama 36117. Section 6-6-330 Ala. Code (1975) specifically states that
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`“unlawful detainer” actions are “cognizable before the district court of the county in which
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`the offense is committed. Section 6-6-350 Ala. Code (1975) allows a party to appeal a
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`judgment of the District Court to the Circuit Court. Accordingly, the District Court of
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`Montgomery County and the Circuit Court of Montgomery County, Alabama are both courts
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`of “competent jurisdiction”. See, I.A. Durbin, 793 F.2d at 1549.
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`(3)
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`Identical Parties. Parties are “identical” for purposes of res judicata when
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`they are the same or in privity with one another. N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1561
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`(11 Cir. 1990). Arbor Station, an apartment complex, was represented in the prior state
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`court action against Franklin by J. Matthew Parnell. In the case at bar, Franklin alleges
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`Page 7 of 12
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`Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 8 of 12
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`claims pursuant to the Fair Debt Collection Practices Act §§ 15 U.S.C. 1692e(2)(5)(10)
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`against Arbor Station, for using “false and misleading information” during various
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`proceedings in the prior state court action involving unlawful detainer and seeking possession
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`of her property. Franklin also alleges a claim pursuant to the FDCPA § 1692f(1) against
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`Arbor Station for an attempt to collect legal fees from her which is prohibited by the
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`Alabama Uniform Residential Landlord Tenant Act. In addition, Franklin alleges state law
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`claims against Arbor Station for Fraud and Unjust Enrichment and state law claims against
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`attorney Justin Matthew Parnell for negligence or legal malpractice arising from actions
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`taken in the state court proceeding. She also alleges state law claims against Parnell & Crum,
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`P.A. for negligent hiring, negligent training, and negligent supervision.
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`In Thompson v. SouthTrust Bank, 961 So.2d 876, 883 (Ala. Civ. App. 2007), the
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`court, while noting that in Alabama the term “privity” had not been uniformly defined with
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`respect to res judicata, observed that it was often deemed to arise from
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`“(1) the relationship of one who is privy in blood, estate, or law; (2) the mutual
`or successive relationship to the same rights of property; [or] (3) an identity of
`interest in the subject matter of litigation.” Thus, the existence of privity has
`generally been resolved “on an ad hoc basis in which the circumstances
`determine whether a person should be bound by or entitled to the benefits of
`a judgment.”
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`Hughes v. Martin, 533 So.2d 188, 191 (Ala.1988). Clearly, Arbor Station, as plaintiff in the
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`prior state court action and defendant in the case at bar, has an “interest in the subject matter
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`of litigation.” Likewise, Justin Matthew Parnell, as attorney for Arbor Station against
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`Franklin in the prior state court action, stands in privity of law with Arbor Station and as a
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`Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 9 of 12
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`defendant in the case at bar has an “interest in the subject matter of litigation. The only party
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`in the case at bar, which was not a party to the prior unlawful detainer state court action, is
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`Parnell and Crum, P. A., Justin Matthew Parnell’s employer.
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`Thompson involved a lawsuit in which Thompson sued a bank and two of its
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`employees asserting claims of negligence, wantonness and fraud relating to representations
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`made by the bank concerning an anticipated load for the purchase of apartments. Prior to the
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`filing of the case against SouthTrust and two of its employees, Thompson had filed in 2002
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`a suit against only the bank, a suit which the court characterized as alleging the same primary
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`wrong; Thompson lost that lawsuit, and for that reason the two bank employees could “take
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`advantage of the previous adjudication in favor of SouthTrust.” Thompson, 961 So.2d at
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`883. Thompson thus stands for the proposition that an agent and the agent’s employer are
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`in privity with respect to actions in which they have “an identity of interest in the subject
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`matter of the litigation.” 533 So.2d at 191. It follows, therefore, that Parnell and Crum, P.A.,
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`should be bound by or entitled to the benefits of the judgment issued in the prior state court
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`action because even its tangential involvement in the facts of this case place them in
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`positions of “interest in the subject matter of the litigation.” Id. 2
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`(4)
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`The Same Cause of Action. In Manning v. City of Auburn, the Court
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` Even were the Court to conclude Parnell & Crum, P.A. is not in privity with Justin
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`Matthew Parnell, and thus, this case and the prior state court action do not involve “identical
`parties”, the fact remains that Plaintiff alleges only state law claims against Parnell & Crum P.A..
`Specifically, Franklin alleges claims against Parnell & Crum, P.A. for negligent hiring, negligent
`training, and negligent supervision of J.Matthew Parnell. Thus, the court lacks subject matter
`jurisdiction over those state law claims.
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`Page 9 of 12
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`Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 10 of 12
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`summarized the law regarding when a cause of action is the same for purposes of res judicata
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`as follows:
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`In this circuit, the determination of whether the causes of action in two
`proceedings are the same is governed by whether the primary right and duty
`are the same. Hunt, 891 F.2d at 1561 (quoting Kemp v. Birmingham News
`Co., 608 F.2d 1049, 1052 (5 Cir. 1979)); I.A. Durbin, Inc. v. Jefferson Nat'l
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`Bank, 793 F.2d 1541, 1549 (11 Cir. 1986). The test is one of substance, not
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`form. I.A. Durbin, 793 F.2d at 1549. Res judicata applies “not only to the
`precise legal theory presented in the previous litigation, but to all legal
`theories and claims arising out of the same ‘operative nucleus of fact.’” Hunt,
`891 F.2d at 1561 (despite variations in legal theories used and remedies
`sought, second suit barred because wrongful act in both cases was flying
`Confederate flag atop state capitol) (quoting Olmstead v. Amoco Oil Co., 725
`F.2d 627, 632 (11 Cir. 1984)); Jaffree v. Wallace, 837 F.2d 1461, 1468 (11
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`Cir. 1988) (second suit barred because “[b]oth cases raised first amendment
`(free exercise and establishment clause) challenges to use of textbooks and
`teachings on various subjects”); Nilsen v. City of Moss Point, 701 F.2d 556,
`560 (5 Cir. 1983) (section 1983 action against city that refused to hire
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`plaintiff as firefighter due to her sex precluded by earlier Title VII action on
`same facts).
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`953 F.2d 1355, 1358-59 (11 Cir. 1992). (Emphasis added.)
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`Franklin alleges claims in the case at bar against Arbor Station, J. Matthew Parnell
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`and Parnell and Crum, P.A. arising from the prior state court action involving unlawful
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`detainer and seeking possession of her property. Franklin alleges Defendants “false and
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`misleading information” during different stages of the prior state court action to deprive her
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`of her property located at 2475-G Meadow Ridge Lane, Montgomery Alabama 36117. Thus,
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`the issues in the prior litigation are identical to the issues raised in this lawsuit because the
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`claims in the case at bar and the prior state court action for unlawful detainer “arise[] out of
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`Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 11 of 12
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`the same ‘operative nucleus of fact.” Id.
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`Moreover, “[r]es judicata acts as a bar ‘not only to the precise legal theory presented
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`in the previous litigation, but to all legal theories and claims arising out of the same operative
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`nucleus of fact.’” Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1356 (11 Cir. 1998).
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`“Res judicata is a broad, judicially developed doctrine, which rests upon the
`ground that public policy, and the interest of the litigants alike, mandate that
`there be an end to litigation; that those who have contested an issue shall be
`bound by the ruling of the court; and that issues once tried shall be considered
`forever settled between those same parties and their privies. 46 Am.Jur.2d Res
`Judicata § 395 (1969). ‘The principle of res judicata fosters reliance on
`judicial action, and tends to eliminate vexation and expense to the parties,
`wasted use of judicial machinery and the possibility of inconsistent results.’
`‘Developments in the Law-Res Judicata,’ 65 Harv. L.Rev. 820 (1952).”
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`Thompson v. SouthTrust Bank, 961 So. 2d 876, 885 (Ala. Civ. App. 2007). “Res judicata
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`bars the filing of claims which were raised or could have been raised in an earlier
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`proceeding.” Driessen v. Fla., 401 Fed. Appx. 435 (11 Cir. 2010) quoting Ragsdale v.
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`Rubbermaid, Inc., 193 F.3d 1235, 1238 (11 Cir. 1999). The Court, therefore, concludes that
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`the Franklin’s claims in the present action are barred by the doctrine of res judicata. The
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`Court further concludes that the complaint fails to state a claim upon which relief maybe
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`granted, and therefore, warrants dismissal prior to service of process under 28 U.S.C. § 1915
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`(e)(2)(B).
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`III. CONCLUSION
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`Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case
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`be DISMISSED without prejudice prior to service of process pursuant to 28 U.S.C. §
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`Case 2:11-cv-00294-MEF-TFM Document 33 Filed 12/05/12 Page 12 of 12
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`1915(e)(2)(B).
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`It is further ORDERED that the Plaintiff file any objections to the this
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`Recommendation on or before December 20, 2012. Any objections filed must specifically
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`identify the findings in the Magistrate Judge's Recommendation to which the party is
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`objecting. Frivolous, conclusive or general objections will not be considered by the District
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`Court. The parties are advised that this Recommendation is not a final order of the court and,
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`therefore, it is not appealable.
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`Failure to file written objections to the proposed findings and recommendations in the
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`Magistrate Judge's report shall bar the party from a de novo determination by the District
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`Court of issues covered in the report and shall bar the party from attacking on appeal factual
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`findings in the report accepted or adopted by the District Court except upon grounds of plain
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`error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein
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`v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of
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`Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the
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`decisions of the former Fifth Circuit handed down prior to the close of business on
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`September 30, 1981).
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`DONE this 5th day of December, 2012.
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`/s/Terry F. Moorer
`TERRY F. MOORER
`UNITED STATES MAGISTRATE JUDGE
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`Page 12 of 12