TJOFLAT, Circuit Judge:
Starship Enterprises of Atlanta, Inc. ("Starship"), a purveyor of various novelty items including sexually explicit materials, appeals the judgment of the District Court dismissing under Federal Rule of Civil Procedure 12(b)(6) its federal constitutional claims brought under 42 U.S.C. § 1983
We begin with a recitation of the relevant facts, which, for the most part, are not in dispute.
In April 2008, Starship leased an empty building in an unincorporated area of Coweta County; it had been used as a gym. Starship planned to renovate the building and turn it into a retail store. On May 12, 2008, Starship's attorney wrote a letter advising the County Attorney that, pursuant to Chapter 18, Art. II, of the Coweta County Ordinances (the "Business License Ordinance"), Starship planned to apply for a general business license to operate the store. He was aware that if the store sold a certain amount of adult material, the county would consider it a sexually oriented business and Starship would not be able to obtain a general business license. Instead, it would have to obtain a license pursuant to Chapter 18, Art. VII, of the Coweta County Ordinances (the "Sexually Oriented Business Ordinance"). Anticipating this situation, Starship's attorney represented that Starship would not be operating a facility that met the ordinance's definition of a sexually oriented business.
On July 17, 2008, Starship's chief executive officer and its attorney met with Coweta County officials, including the County Attorney, to explain Starship's business plan and to affirm that it would limit the sexually explicit material the store sold so as to eliminate the need for a license for a sexually oriented business. Starship needed a general business license because if it were to operate a sexually oriented business, it could not obtain a permit to operate its store at the location under lease, which was not zoned to allow a sexually oriented business. Nor could it obtain a building permit to renovate the building it had leased.
Despite the County's doubt that Starship's store could qualify for a general business license, the County Attorney wrote Starship's counsel on November 18, 2008, stating that if Starship was not going to operate a sexually oriented business, the County could not deny Starship the building permit it needed. In late November, the County issued the permit.
Starship thereafter contacted Eva Wagner, the Coweta County Business License Director, about applying for a general business license. She said that an application would not be accepted until the renovations to the premises were complete and a Certificate of Occupancy issued. Within two months, the renovation was completed, at a cost of $150,000, and on January 19, 2009, a Certificate of Occupancy was issued.
Meanwhile, on January 15, Starship's attorney met with the County Attorney, Wagner, and other county officials. Counsel presented the officials with a diagram of the store, which showed where the adult material would be located on the premises. Wagner informed the attorney that a general business license would issue after Starship fully stocked the store in accordance with the diagram. On January 20, Starship filed its application for a general business license, and by January 28, it had completed stocking the store. Wagner was scheduled to visit the store on January
On January 26, the Coweta County Board of Commissioners repealed the Sexually Oriented Business Ordinance, Coweta County, Ga., Code of Ordinances Ch. 18, art. VII (2000), and adopted a Sexually Oriented Business Ordinance containing a new definition of a sexually oriented business, Coweta County, Ga., Code of Ordinances Ch. 18, art. VII (2009). As described by Starship's attorney at his July 17 and January 15 meetings with county officials, Starship's store would not have been a sexually oriented business under the repealed ordinance. If operated as stocked on January 26, however, the store would qualify as a sexually oriented business under the new ordinance and, as such, would not qualify for a general business license.
On February 2, Starship's attorney wrote the County Commissioners a letter stating that Starship planned to rearrange the store's inventory so that it would not constitute a sexually oriented business under the new Sexually Oriented Business Ordinance and thus would qualify for a general business license. On February 6, Wagner, applying the new Sexually Oriented Business Ordinance, denied Starship's application for a general business license; she concluded that even though the inventory had been arranged in accordance with the diagram shown earlier, the store would be operating as a sexually oriented business under the new ordinance.
On February 18, Starship appealed denial of its business license application to the Coweta County Business and Occupational Tax Rate Review and Appeals Committee (the "Appeals Committee"). The Appeals Committee held a series of hearings concerning the denial. On May 20, the committee issued findings of fact and voted 4 to 1 to recommend that the Board of County Commissioners reverse the denial of Starship's application. The Appeals Committee assumed that the store would be operated as depicted in Starship's attorney's letter of February 2, and found that the store would not constitute a sexually oriented business as defined in the new ordinance; thus, the store could function as a regular business. The Board of County Commissioners, however, voted unanimously on June 16 to uphold Wagner's denial of Starship's application.
On July 13, 2009, Starship petitioned the Superior Court of Coweta County for a writ of mandamus. The court granted the writ on April 19, 2010. Adopting the Appeals Committee's finding as to how Starship planned to operate the store, the court reversed the Board of Commissioners' decision affirming Wagner's denial of the business license and ordered that the license issue.
At the time the Superior Court concluded the mandamus proceeding, Starship's lawsuit in the District Court against the County and Wagner, which had been pending since November 16, 2009, was still in the pleading stage, awaiting the court's ruling on Starship's motion for leave to file a first amended complaint. On April 28, 2010, the court granted its motion. Starship's first amended complaint, as amended, contained ten causes of action;
The defendants moved the District Court to dismiss Starship's complaint on two alternative grounds. First, the complaint
We review de novo a district court's dismissal of a complaint, under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim for relief after accepting the factual allegations of the complaint as true and considering them in the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003) (citing Monzon v. United States, 253 F.3d 567, 569-70 (11th Cir.2001)). We review a district court's res judicata determination de novo. E.E.O.C. v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004) (citing Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir.2000)). Finally, we review for abuse of discretion a district court's dismissal of state law claims pursuant to 28 U.S.C. § 1367(c)(2). Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 738 (11th Cir.2006) (citing Ingram v. Sch. Bd. of Miami-Dade Cnty., 167 Fed.Appx. 107, 108 (11th Cir.2006)). With these standards in hand, we address in part III below the District Court's disposition of five of the complaint's seven counts under the doctrine of res judicata and deal with two of the counts in the margin.
The District Court found that Counts 1, 3, 4, 5, and 7 were barred by the doctrine of res judicata.
"Three prerequisites must be met before res judicata will apply: (1)
Starship did not present this argument to the District Court; rather, it presents the argument for the first time in its brief on appeal. Thus, we will not consider Starship's point, unless Starship can invoke one of the five exceptions to the rule that "appellate courts generally will not consider an issue or theory that was not raised in the district court," FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir.1993) (citation omitted). The five exceptions to the rule are: "the refusal to consider the pure question of law would result in a miscarriage of justice; the appellant had no opportunity to raise it below; there is at stake `a substantial interest of justice;' the proper resolution is beyond any doubt; or the issue presents significant questions of great public concern." Id. Starship argues that the miscarriage-of-justice exception applies. We do not consider the argument because Starship failed to present the argument in its opening brief. That it raised it in its reply brief will not suffice. See United States v. Nealy, 232 F.3d 825, 830 (11th Cir.2000) (declining to decide an issue raised for the first time in supplemental briefing). We assume then, as the District Court did (because Starship did not contest the point), that, notwithstanding the fact that Wagner was not sued in her individual capacity in the mandamus proceeding, there is identity of parties. Whether res judicata bars Starship's claims therefore turns on whether an identity as to causes of action is present as well.
When resolving that issue, Georgia courts look to see whether the claims arise from the same subject matter. Fowler v. Vineyard, 261 Ga. 454, 458, 405 S.E.2d 678 (1991). "[O]ne must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata pursuant to OCGA § 9-12-40." Id. (quoting Lawson v. Watkins, 261 Ga. 147, 149, 401 S.E.2d 719 (1991) (emphasis in original)).
As we set out in part II, supra, Starship claimed that rejection of its business license application deprived it of the use of its property between the date it filed its application for a business license and the date the writ of mandamus issued, in violation of the substantive component of the Fourteenth Amendment's Due Process Clause (Count 1), and denied it equal protection of the law (Count 3). Starship also claimed that the County violated the First Amendment by delaying consideration of Starship's application for a business license (Count 5) and denying the application for the purpose of preventing Starship from exercising speech (Count 7). Finally, Starship claimed that the Business License Ordinance is an unconstitutional prior restraint on its face because it fails to provide a time limit for the approval or rejection of a business license application
In its mandamus petition, Starship alleged that the County's ordinances "provide no guidelines on how the Board of Commissioners shall treat a recommendation from the Appeals Committee" and that the Board of Commissioners "exercised unbridled discretion"; that the County's "business license procedures included numerous errors of law ... as applied to Starship"; that Starship met all requirements of the ordinances, including the 25 percent threshold; that Wagner "committed error by ruling that Starships' [sic] application must be considered pursuant to amendments to the County's ordinances enacted two months after a building permit issued"; and that Wagner erred in denying its application for a business license based on the "prospective possibility of unlawful conduct." Record, vol. 2, no. 21-2.
In the case at hand, Starship asserted the same factual basis in support of its claims. Starship maintained that the ordinances vest the County with unfettered discretion and impose no time limit for its approval or rejection of a license application; that the County applied its ordinances to Starship in violation of the First Amendment; that Starship notified the County that it would comply with the new Sexually Oriented Business Ordinance; that it would not operate its store as an adult bookstore; that the County "establish[ed] laws which were then retroactively applied to Starship to prevent its business operation"; and that the County engaged in a policy to deny the business license based on "the asserted ground that the applicant will — at a time in the future — engage in conduct in violation" of the laws of the County. Record, vol. 1, no. 16, at 17-18. All of these claims arose from the same facts that Starship asserted in its petition for a writ of mandamus: that Starship met the requirements of the County ordinances and that the County erred when it denied Starship's application.
Starship could have presented these additional claims in its mandamus petition, but it did not. In Georgia, res judicata applies not only to claims that were actually litigated, but to claims that could have been litigated in a prior action.
For the foregoing reasons, the judgment of the District Court is
AFFIRMED.
We have been encountering complaints like Starship's complaint for over two decades, referring to them as "shotgun" pleadings. "[S]ince 1985 we have explicitly condemned shotgun pleadings upward of fifty times." Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 n. 54 (11th Cir.2008). It appears that we haven't said enough about the problems shotgun pleadings cause the administration of civil justice, so we'll try one more time.
"Shotgun pleadings delay cases by [w]asting scarce judicial and parajudicial resources. [They] imped[e] the due administration of justice, and, in a very real sense, amount to obstruction of justice. Although obstruction of justice is typically discussed in the context of criminal contempt, the concept informs the rules of law — both substantive and procedural — that have been devised to protect the courts and litigants (and therefore the public) from abusive litigation tactics, like shotgun pleadings. If use of an abusive tactic is deliberate and actually impedes the orderly litigation of the case, to wit: obstructs justice, the perpetrator could be cited for criminal contempt." Davis, 516 F.3d at 982 n. 66 (internal quotation marks omitted); see also PVC Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 806 n. 4 (11th Cir.2010) ("Shotgun pleadings impede the administration of the district courts' civil dockets in countless ways. The district court, faced with a crowded docket and whose time is constrained by the press of other business, is unable to squeeze the case down to its essentials. It is therefore left to this court to sort out on appeal the meritorious issues from the unmeritorious ones, resulting in a massive waste of judicial and private resources; moreover, the litigants suffer, and society loses confidence in the courts' ability to administer justice.") (internal quotation marks and citations omitted).
In this case, defense counsel did not move the District Court to require Starship to file a more definite statement pursuant to Fed. R.Civ.P. 12(e) on the ground that the complaint was "so vague or ambiguous" as to render a response difficult. As officers of the court, the lawyers in any civil case have a duty to assist the court in narrowing the issues. Where, as here, the defense accepts a shotgun complaint and opts to reply to it in kind, the court must step in and require a repleader on its own initiative. The court's alternative is to allow, if not tacitly encourage, the parties to build a pleading record of several volumes — in this case three volumes that, taken together, are 4.25 inches thick.
Here, the defendants filed a motion to dismiss the amended complaint and an accompanying memorandum in support of the motion to dismiss on June 4, 2010. In the memorandum, the defendants argued that the claims should be dismissed on res judicata grounds, and they attached Starship's mandamus petition in the Superior Court and the Superior Court's order granting the writ. Because Starship did not refer to the Superior Court petition or order in its complaint, the District Court's consideration of those materials automatically converted the motion to dismiss into a motion for summary judgment. Although we find nothing in the record to indicate that the District Court gave Starship ten days' notice of its intent to consider matters outside the pleadings, we think Starship's brief in opposition to the defendants' motion to dismiss shows that Starship had notice that the District Court would consider the Superior Court petition and order, and that Starship presented the arguments it would have presented had it received formal notice of an intent to convert the motion into a summary judgment motion. Starship first argued that the District Court could not dismiss its complaint on res judicata grounds because the existence of the defense could not be judged on the face of the complaint. It then proceeded to argue that res judicata should not be granted on the merits: "Out of an abundance of caution, and without waiving the foregoing argument, Plaintiff will proceed to describe the other reasons that preclude the grant of Defendants' motion to dismiss." Record, vol. 2, no. 25, at 3-4. We thus find that Starship presented the arguments it would have presented had it had notice, and we treat the District Court's dismissal of Starship's claims on res judicata grounds as a motion for summary judgment under Rule 56. Moreover, we find that the pleadings and the Coweta County Superior Court petition and order contained sufficient facts on which to adjudicate the defense.
