United States District Court, M.D. Florida, Fort Myers Division
L. YVONNE BROWN, Plaintiff,
FLORIDA GULF COAST UNIVERSITY BOARD OF TRUSTEES, KEN KAVANAGH, KARL SMESKO, RODERICK ROLLE, KELLY BROCK and JESSICA HOMER, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Motion to
Dismiss Brown's Original Complaint and Defendants'
Request for Judicial Notice (Doc. 45) filed on September 19,
2019. Plaintiff was warned that the Court would rule on the
Motion to Dismiss without the benefit of a response. (Doc.
53). No. response was filed by Plaintiff pro se L.
Yvonne Brown, although she was allowed time to do so. For the
reasons set forth below, the Motion is granted, and the case
will be administratively closed pending a ruling on
Defendants' Motion for Sanctions (Doc. 54).
October 26, 2018, Plaintiff L. Yvonne Brown filed a
nine-count Complaint (Doc. 1) alleging in the only federal
claim that Defendants violated Title IX by dismissing her
from Florida Gulf Coast University (FGCU) women's
basketball team based on academic ineligibility without due
process. Defendants filed a Motion to Dismiss (Doc. 45) for
failure to state a claim, arguing that Plaintiff's claims
are barred by res judicata and that Defendants are
protected by sovereign immunity. Indeed, this is not
Brown's first pro se suit surrounding her
unconstitutional dismissal from FGCU's basketball team.
Brown litigated a case in this Court against mostly the same
Defendants as here for the past year and a half. See
Brown v. Florida Gulf Coast University, et al., Case
2:18-cv-157-JES-MRM (“Brown I”). That
case was filed on March 9, 2018, and after two iterations of
the Complaint, the Court dismissed the case on the merits but
allowed Plaintiff a final opportunity to amend. She failed to
do so, and Judgment was entered on July 15, 2019.
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must accept all factual
allegations as true and view them in a light most favorable
to the plaintiff. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). This consideration is limited “to the
pleadings and exhibits attached thereto[.]”
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000). However, a complaint listing mere
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555
(2008). Likewise, “[f]actual allegations that are
merely consistent with a defendant's liability” are
insufficient. Chaparro v. Carnival Corp, 693 F.3d
1333, 1337 (11th Cir. 2012) (internal citations omitted). And
the allegations must not force the court to speculate or
operate on mere suspicion. Twombly, 550 U.S. at 555.
In contrast, the Court will not dismiss a complaint where the
Plaintiff pleads facts that make the claim facially
plausible. See Twombly, 550 U.S. at 570. A
claim is facially plausible when the court can draw a
reasonable inference, based on the facts pleaded, that the
opposing party is liable for the alleged misconduct. See
Iqbal, 556 U.S. at 678. This plausibility standard
requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 557). Thus, when the complaint
contains “well-pleaded allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
initial matter, Defendants request that the Court take
judicial notice of certain court records from Brown
I, specifically, the documents attached to their Motion
to Dismiss. (Doc. 45 at 3-4). A district court may
consider extrinsic evidence in ruling on a motion to dismiss
“if it is (1) central to the plaintiff's claim, and
(2) its authenticity is not challenged.” SFM
Holdings, Ltd. v. Banc of Amer. Secs., LLC, 600 F.3d
1334, 1337 (11th Cir. 2010); see also Trustmark
Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267-68 (11th
Cir. 2002). The public records in Brown I comply
with both requirements. Thus, Defendants' motion to
dismiss need not be converted to a motion for summary
judgment. Harper v. Lawrence County, 592 F.3d 1227,
1232 (11th Cir. 2010); Jones v. Auto. Ins. Co. of
Hartford, 917 F.2d 1528, 1531-32 (11th Cir. 1990).
Additionally, “a court may take notice of another
court's order...for the limited purpose of recognizing
the ‘judicial act' that the order represents or the
subject matter of the litigation.” United States v.
Jones, 29 F.3d 1549, 1553 (11th Cir. 1994). Therefore,
the Court takes judicial notice of those documents that were
filed in Brown I, as requested.
contend that Plaintiff's claims (except the Title IX
claim against Defendant Homer in her individual capacity) are
barred by res judicata (claim preclusion) because of
Plaintiff's prior federal court action in Brown
I in which judgment on the merits was entered.
is by now hornbook law that the doctrine of res
judicata bars the filing of claims which were raised or
could have been raised in an earlier proceeding.”
Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1375
(11th Cir. 2011). To prove that res judicata bars a
claim, a movant must show that the following four elements
are met: “(1) the prior decision must have been
rendered by a court of competent jurisdiction; (2) there must
have been a final judgment on the merits; (3) both cases must
involve the same parties or their privies; and (4) both cases
must involve the same causes of action.” Lobo v.
Celebrity Cruises, Inc., 704 F.3d 882, 887 (11th Cir.
2013). “The court next determines whether the claim in
the new suit was or could have been raised in the prior
action; if the answer is yes, res judicata
applies.” In re Piper Aircraft Corp., 244 F.3d
1289, 1296 (11th Cir. 2001). 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).
The Final Judgment in Brown I Was Rendered by a
Court of Competent Jurisdiction
Brown I, the Court rendered a final judgment against
Brown. In the final iteration of her complaint in Brown
I, Brown alleged claims under 42 U.S.C. § 1983, the
federal Administrative Procedure Act, and the federal Higher
Education Act of 1965, as well as claims for retaliation and
declaratory and injunctive relief. (Doc. 45-4). The Court had
federal-question jurisdiction over Brown's federal
claims, and supplemental jurisdiction over her state-law
claims. Thus, the Court had jurisdiction to render its final
judgment in Brown I and therefore the first element
The Final Judgment in Brown I Was a Final Judgment
on the Merits
Brown I, the Court's Opinion and Order dated May
13, 2019, dismissed some of Brown's claims with prejudice
and others without prejudice pursuant to Fed.R.Civ.P.
12(b)(6), with leave to amend. When Brown failed to amend her
pleading within the time allowed by the Court, the Court
directed the Clerk to enter judgment and close the case, and
Judgment was entered. A final judgment entered after the
Court dismisses a plaintiff's claims pursuant to
Fed.R.Civ.P. 12(b)(6) - and after a plaintiff fails to file
an amended pleading within the allotted time - is a final
judgment on the merits. See Hertz Corp. v. Alamo
Rent-a-Car, Inc., 16 F.3d 1126, 1128, n.3 (11th Cir.
1994). Therefore, the second element is satisfied.
Both Cases Involve the Same Parties and Their
Brown I and this case, Brown sued FGCU Board of
Trustees, Ken Kavanagh, Karl Smesko, Roderick Rolle, and
Kelly Brock in their official and individual capacities.
Thus, these Defendants may invoke res judicata here.
The sole difference being that in this case, Brown has also
sued Jessica Homer in her official (as FGCU's ...