United States District Court, M.D. Florida, Fort Myers Division
COLLIER COUNTY, a political subdivision of the State of Florida Plaintiff,
HOLIDAY CVS. L.L.C. and RTG, LLC, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on Defendant RTG,
LLC's (“RTG”) Motion to Dismiss (Doc. 9) and
Defendant Holiday CVS, L.L.C.'s (“CVS”)
Motion to Dismiss (Doc. 12) filed on January 17, 2017.
Plaintiff Collier County (“Plaintiff”) filed its
Responses in Opposition on January 31, 2017. (Doc. 18; Doc.
19). With the Court's leave, CVS filed a Reply to
Plaintiff's Response in Opposition (Doc. 25) on February
13, 2017. Thus, this matter is ripe for the Court's
case started as an eminent domain action in state court. It
commenced in 2013 and resolved one year later with a jury
verdict in favor of Defendants. Plaintiff is a political
subdivision of Florida. RTG is the property owner of a parcel
located at 6800 Collier Blvd., Naples, Florida 34114
(“the Subject Property”). CVS leases the Subject
Property from RTG and operates its business there.
lease was interrupted years later in 2013. At that time,
Plaintiff initiated an expansion project requiring it to seek
an additional right-of-way. Plaintiff sought to condemn
portions of the Subject Property, including eleven parking
spaces and a temporary construction easement. This prompted
CVS to terminate its lease with RTG and remain as a
month-to-month tenant. A year later, Defendants proceeded to
a jury trial on their claims for damages. The jury awarded
RTG approximately $3.1 million in severance damages and CVS
$1, 933, 000.00 in business damages. Additionally, Plaintiff
claims it paid over $1 million in attorney's fees and
almost $500, 000.00 towards Defendants' expert fees.
Plaintiff now brings action to recoup damages it paid in full
initially brought this action in state court. (Doc. 1-5 at
9-18). CVS then removed it to federal court. (Doc. 1). The
Amended Complaint alleges counts for Unjust Enrichment and
Civil Conspiracy to Commit Extrinsic Fraud on the Court.
(Doc. 2). In a Notice of Withdrawal filed with the state
court, Plaintiff withdrew its claim for Civil Conspiracy to
Commit Extrinsic Fraud on the Court. (Doc. 1-5 at 160). In
addition, Plaintiff attached a proposed second amended
complaint that lists Unjust Enrichment as its sole claim.
(Doc. 27-1). Therefore, Unjust Enrichment is the only claim
main argument for recovery hinges on the evidence presented
to the jury in its prior state court action. Plaintiff avers
the jury was misled when determining damages because CVS
represented that its store would close on the Subject
Property, and it did not. (Doc. 2 at ¶¶ 27-28, 32).
In response, Defendants move to dismiss Plaintiff's claim
on the basis of res judicata (collateral estoppel),
Florida Rule of Civil Procedure 1.540(b), and failure to
state a claim. (Doc. 9 at 11-23; Doc. 12 at 9-16). After an
extensive review of this case, the Court need only address
dismissal of Plaintiff's claim on the basis of res
Motion to Dismiss
judicata bars litigation of claims that were or could have
been raised in a prior action.” In re FFS Data,
Inc., 776 F.3d 1299, 1306 (11th Cir. 2015) (citation
omitted). When deciding res judicata, federal courts
“apply the preclusion law of the state whose courts
rendered the first decision.” Agripost, LLC v.
Miami-Dade Cnty., 525 F.3d 1049, 1052 n.3 (11th Cir.
2008). Under Florida law, issue preclusion prevents
re-litigation where “(1) the parties are identical with
those from the prior case, (2) the issues are identical, (3)
there was a full and fair opportunity to litigate the issues
and they were actually litigated, and (4) those issues were
necessary to the prior adjudication.” Id. at
1055 (citation omitted).
contend that Plaintiff's claim is barred by res
judicata because of Plaintiff's prior state court
action in which a verdict for damages was entered. (Doc. 9 at
12-14; Doc. 12 at 10-12). Defendants are correct. Here, the
parties are the same. And, Plaintiff's claim is tied to
the same factual predicate as the prior state court action.
Moreover, the parties received a full and fair opportunity to
litigate the issue of damages, evidenced by the jury verdict
dated January 10, 2014. See (Doc. 2-2; Doc. 2-3).
Thus, any issue relating to damages was necessary to the
prior state court adjudication.
Plaintiff avers its Unjust Enrichment claim was incapable of
being brought at the time of the prior state court action.
(Doc. 18 at ¶ 16; Doc. 19 at ¶ 16).Plaintiff
contends the jury awarded damages based upon the belief that
CVS would close its premises by January 2015. (Doc. 18 at
¶ 16; Doc. 19 at ¶ 16). Therein, lies the crux of
Plaintiff's claim- for, any kept damages and profits
earned thereafter would be an “unjust windfall.”
(Doc. 2 at ¶ 43). The Court does not see it that way.
Amended Complaint indicates Plaintiff “has paid CVS and
RTG the damages awarded in full.” (Doc. 2 at ¶ 30)
(emphasis added). Plaintiff had ample time to appeal the
state court judgment, but it did not. Plaintiff now brings
its claim close to three years later. This is not the typical
unjust enrichment claim. Rather, this claim is a collateral
attack on a jury verdict. The possibility that CVS could
remain open on the Subject Property past the ...