United States District Court, N.D. Alabama, Middle Division
E. Ott Chief United States Magistrate Judge
action, Plaintiff Gadsden Industrial Park, LLC
(“GIP”) has sued the United States under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671 et seq., and two government
contractors, CMC, Inc. (“CMC”) and Harsco
Corporation (“Harsco”) (hereinafter collectively
“Defendants”) under Alabama tort law.
(Doc. 27, Amended Complaint (hereinafter
“Complaint” or “Compl.”). The cause
comes to be heard on two pending motions. The first is a
joint motion filed by CMC and Harsco (collectively the
“Contractors”) in which they seek a dismissal or,
in the alternative, a stay of the proceedings on the claims
against them, based on an argument that GIP has engaged in
improper claim-splitting. (Doc. 36 (incorporating Docs. 7
& 8)). In the other pending motion, the United States
seeks a dismissal for lack of jurisdiction, based on the
discretionary-function exception to the FTCA's waiver of
sovereign immunity. (Doc. 37). The parties have exhaustively
briefed the motions. (Docs. 45-47, 48-1, 50, 51, 54-55, 59,
61). Upon consideration, the court concludes that both motions
to dismiss are due to be granted.
salient allegations of the Complaint are these: Prior to the
events giving rise to this lawsuit, a company known as Gulf
States Steel, Inc. of Alabama (“Gulf States”)
owned and operated a 761-acre steel manufacturing facility in
Gadsden, Alabama (the “Site”). (Compl. ¶
11). In 1999, Gulf States filed for bankruptcy, and, in
connection with that proceeding, various of its assets were
sold off. (Id.) One such asset was a railroad track
system installed on the Site, which was purchased in 2001 by
the Williams Family Limited Partnership
(“Williams”). (Id. ¶ 13). In 2002,
Plaintiff GIP purchased other Gulf States assets, including
about 434 acres of the Site real estate. (Id. ¶
14). GIP also purchased other assets situated on an
approximately 200-acre portion of the Site that GIP did not
buy, an area of land the Complaint refers to as the
“Excluded Real Property.” (Id.
¶¶ 15, 16). In particular, GIP purchased all of the
“kish” as well as 420, 000 cubic yards of
“slag” located on the Excluded Real Property.
(Compl. ¶ 16). Kish is a by-product of the steelmaking
process and contains recyclable metal particulates, while
slag is the unrefined result of the first step of the
steelmaking process. (Id. ¶ 17). Both had been
“dumped and/or stockpiled” at various locations
on the Excluded Real Property during the approximately
97-year period that Gulf States and its predecessors used the
Site for metal manufacturing. (Id.)
GIP's purchase, it partnered with Williams to operate a
railroad car storage business on the Site, using the tracks
that Williams had bought. (Id. ¶ 18). That
partnership later dissolved, and Williams sold the entire
track system to GIP in 2005. (Id. ¶ 19). After
refurbishing parts of the system and purchasing locomotives,
GIP commenced running its own railroad car storage business
on the Site in January 2008. (Compl. ¶ 21).
or 2008, however, the United States Environmental Protection
Agency (“EPA”) began remedial work on the
Excluded Real Property as part of a “Superfund”
site project under the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”), 42
U.S.C. §§ 9601-9657 (Id. ¶ 23). In
undertaking that operation, the EPA barred GIP from entering
the Excluded Real Property, thereby preventing it from using
any of the rail spur lines located thereupon. (Id.
¶ 24). Further, although GIP says that it “had
been making preparations” to retrieve and sell its kish
on the Excluded Real Property (id. ¶ 31), the
EPA's denial of access also prevented GIP from carrying
out such plans. (Id. ¶¶ 24, 31, 36).
about 2007, the EPA hired Defendant CMC to be its
“emergency response contractor and/or site manager at
the Site.” (Compl. ¶ 25). In about 2008, the EPA,
by and through CMC, hired Defendant Harsco to conduct a pilot
study of the materials located on an eight-acre portion of a
“non-hazardous permitted landfill situated on the
Excluded Real Property, for the sole purpose of determining
whether and to what extent those materials contained valuable
metal-bearing items that could be marketed and resold for
profit.” (Id. ¶ 26). After that study
concluded that mining portions of the Excluded Real Property
for recyclable metals would be profitable, the EPA, again
acting by and through CMC, hired Harsco in October 2009 to
conduct a full-scale “slag processing” operation,
pursuant to which Harsco agreed to mine the eight-acre
portion of the Excluded Real Property for the purpose of
extracting and selling valuable metal-bearing materials.
(Id. ¶¶ 28, 29). In return, Harsco would
remit a percentage of the gross proceeds from such sales to
CMC, which, in turn, would credit the EPA for amounts it
otherwise owed on the project to CMC. (Id.) Pursuant
to that agreement, from early 2010 through sometime in 2013,
Harsco proceeded to mine, process, market, and sell to third
parties “many, many millions of dollars” worth of
metal-bearing materials from the kish and slag that GIP had
purchased out of the Gulf States bankruptcy. (Id.
¶¶ 30, 32, 33, 34). Harsco did not, however, limit
those efforts to the eight-acre portion of the parcel
originally agreed upon, nor to only the non-hazardous
permitted landfill portions of the Excluded Real Property.
(Compl. ¶ 33). Rather, GIP maintains, with the knowledge
and approval of the EPA and CMC, Harsco mined the Excluded
Real Property wherever it determined metallic items of value
existed. (Id. ¶ 34). And despite the fact that
Defendants were at all times aware of GIP's claimed
interest in the kish and slag, they continued to prohibit GIP
from itself retrieving and selling them. (Id.
¶¶ 32, 35, 36).
addition, GIP alleges that “during the course of its
work mining for ‘kish, ' [the Contractors, ] with
the EPA's knowledge and approval, also uninstalled, cut,
severed, tore up from the ground, and removed roughly 1, 400
feet of track [on the HS-1 and HS-2 spur lines] owned by
[GIP] on the [Excluded Real Property, along with all
accompanying ties, plates, spikes, and the like.”
(Id. ¶ 37). Defendants then discarded those
materials “and/or” sold them to third parties.
(Id. ¶ 38). Similarly, GIP claims that the EPA,
by and through the Contractors or other employees or agents,
“completely covered” another 1, 000 feet of track
on the HN-1 spur line owned by GIP on the Excluded Real
Property with “non-saleable mined material, ”
thereby rendering those tracks unusable. (Compl. ¶ 39).
GIP ultimately insists that “no condition existed at
the Site which would have authorized, necessitated or
required the Defendants under CERCLA to have removed
[GIP]'s property, ... to have covered or discarded
[GIP's] property and/or to have conveyed it to third
parties.” (Id. ¶ 42). Despite numerous
demands by GIP, neither the EPA nor the Contractors have
remitted any compensation to GIP for the destruction or
removal of its property at the Site. (Id. ¶ 43;
see also Docs. 27-1, 27-2, 27-3).
filed this action on June 5, 2015. (Doc. 1). In its
now-governing amended pleading filed in August 2015, GIP
brings claims under the FTCA and Alabama tort law against
Defendants, set forth in four counts. (Doc. 27, Compl.).
Count I alleges that all three Defendants are liable for
conversion of GIP's kish and slag located on the Excluded
Real Property, while Count II similarly alleges that those
Defendants acted negligently by “removing, destroying,
discarding and/or selling” same. Counts III and IV
assert that the United States, but not either of the
Contractors, is also liable for conversion and negligence,
respectively, based upon the removal and burial of the
aforementioned sections of railroad track on the Excluded
support of its pending motion to dismiss, the United States
has filed an affidavit sworn by Terrence Byrd, an
“On-Scene Coordinator” in the EPA's
“Superfund Division.” (Doc. 37-2 (“Bryd
Aff.”) ¶¶ 1, 3). In his affidavit, Byrd
recites the following: The EPA designated the Gulf States
Site as a Superfund removal site in 2001 when it initiated an
investigation there and that associated removal operations
began in 2003 and concluded in 2013. (Byrd Aff. ¶ 5).
The site had “two large waste piles” that
“contained certain hazardous substances that were
leaching into the ground, nearby water sources, and the
sediments of Black Creek and Lake Gadsden.”
(Id. ¶ 6). In response, the “EPA sought a
way to remove the hazardous substances and decrease the
volume of the waste piles to lessen the environmental
affidavit also contains a number of allegations that confirm
or are otherwise generally consistent with those GIP pleads
in its Complaint. According to Byrd, CMC, as the project
manager hired by the EPA, offered several options for
proceeding, including by “recycling the metallic
content of the waste piles.” (Id. ¶ 7).
CMC then hired Harsco to conduct a pilot study, based upon
which “Harsco determined that the waste material would
yield sufficient metal content to make processing the
material from an engineering and economic standpoint.”
(Id. ¶ 9). That study, Byrd says, “also
demonstrated to EPA that removal of the metallics would
reduce the volume, toxicity, and mobility of the hazardous
substances in the waste piles and was more cost effective
that the other removal alternatives considered.” (Byrd
Aff. ¶ 10). Harsco then entered into a subcontract with
CMC, under which the former would conduct the removal
operation, extract metallic content from the waste piles,
sell it, and pay CMC a royalty that would be credited against
amounts the EPA owed to CMC on the project. (Id.
Byrd's affidavit makes a number of claims related to the
scope of the EPA's alleged supervision and oversight of
the Contractors' removal operation. For example, he
states that the “EPA directed CMC who in turn directed
Harsco when and where to mine within the two waste piles,
” while Harsco was responsible for determining more
specifically what recyclable metallics were present and
whether to remove them and for finding a buyer for extracted
materials at market price. (Id. ¶ 13). Byrd
also states that, throughout the removal operation, an EPA
representative “was on-site or in contact”
(id. ¶ 14) and “was consulted ...
whenever Harsco encountered something in the waste piles
unusual or out of the ordinary, such as its discovery of rail
track HN-1 in the North Waste Pile and rail tracks HS-1 and
HS-2 in the South Waste Pile.” (Id. ¶
15). Byrd maintains that those “spur lines were cut and
removed or buried at the specific direction of the EPA,
through its contractor CMC, because the spur lines interfered
with the progress of the removal operation and the
construction of the cap.” (Byrd Aff. ¶ 16).
the United States, CMC and Harsco have also been involved in
no less than four prior lawsuits related to the EPA cleanup
at the Site. The first two of those actions were filed by GIP
in the United States Court of Federal Claims, asserting in
each that the United States is liable for having taken
GIP's property without just compensation, in violation of
the Fifth Amendment. The first such action, filed in November
2010, was based on allegations that the United States and its
contractor, then otherwise unidentified, had prevented GIP
from accessing its kish on the Excluded Real Property and had
been themselves removing the kish and selling it to offset
expenses of the EPA cleanup at the Site. Gadsden Indust.
Park, LLC v. United States, 1:10-cv-757-EGB (the
“2010 Claims Case”), Complaint (Fed. Cl. Nov. 3,
2010); (Doc. 7-7). In March 2016, the Court of Federal Claims
denied the United States' motion for summary judgment.
(2010 Claims Case Docs. 110, 129). Thereafter, that court
held a bifurcated trial, which concluded in late July 2017.
(2010 Claims Case Docs. 169, 171, 173, 175, 178, 180, 182).
Post-trial briefing is expected to be complete in by early
January 2018. (2010 Claims Case Doc. 184). As such, no final
judgment has been entered.
filed its second action in the Court of Federal Claims in
November 2013. Gadsden Indust. Park, LLC v. United
States, 1:13-cv-924-EGB (“2013 Claims
Case”), Compl. (Fed. Cl. Nov. 22, 2013); (Doc. 7-6).
There GIP raised a Fifth Amendment takings claim based on
allegations that “the EPA, by and through its
employees, servants, agents, and/or contractors, ” had
removed, destroyed, and/or buried the two aforementioned
sections of spur line railroad track on the Excluded Real
Property. (Id.; see also Doc. 7-4, Amended
Complaint in the 2013 Claims Case). In January 2017, the
United States filed a motion for summary judgment, which GIP
did not contest. (See 2013 Claims Case Docs. 92, 94,
110). Accordingly, on March 31, 2017, the court granted
summary judgment to the United States on GIP's
claim. (2013 Claims Case Docs. 94, 110). On
August 21, 2017, the court entered a final judgment in the
case. (See 2013 Claims Case Doc. 111).
third and fourth prior actions related to the EPA cleanup at
the Site were both filed in this court. First, in January
2014, GIP filed a tort action against the same three
Defendants sued in this case, i.e., the United
States, CMC, and Harsco. See Gadsden Indus. Park, LLC v.
United States, No. 4:14-CV-0039-KOB (the “2014
Tort Case”), Doc. 1, Complaint (N.D. Ala. Jan. 8,
2014); (Doc. 8-1 at 3-12). As here, GIP sought in the 2014
Tort Action to recover under the FTCA and Alabama tort law,
asserting claims for conversion and negligence based, as in
the 2013 Claims Case, on allegations that, “in or
around the summer of 2012, ” Defendants had removed and
buried the sections of railroad track on the Excluded Real
Property. (2014 Tort Case Doc. 1, ¶¶ 19-21). Unlike
in the case sub judice, however, GIP's complaint
in the 2014 Tort Action did not reference efforts by
Defendants to mine and sell the kish and slag.
26, 2015, this court dismissed the United States from the
2014 Tort Case on the ground that GIP had failed to exhaust
administrative remedies as required by 28 U.S.C. §
2675(a). (2014 Tort Case Docs. 36, 37; Docs. 7-8, 7-9). By
contrast, the court denied the Contractors' joint motion
to dismiss, as well as a later one for summary judgment.
See Gadsden Indust. Park, LLC v. United States, 111
F.Supp.3d 1218 (N.D. Ala. 2015). And while GIP did not
formally assert a claim in the 2014 Tort Action based upon
the removal of the kish from the slag piles on the Excluded
Real Property, the court's opinion denying summary
judgment on GIP's claims for the removal and burial of
the spur line tracks nevertheless discussed at some length
the Contractors' mining of the slag piles. See
id., at 1224-26, 1229-32.
the denial of summary judgment in the 2014 Tort Case, GIP
abandoned its negligence claims and elected to proceed at
trial against the Contractors on its conversion theory only.
(2014 Tort Case Doc. 139). At the close of GIP's case,
the court granted the Contractors' joint motion for
judgment as a matter of law, holding that no liability could
lie under Alabama law for conversion of the railroad tracks
because they were a fixture to real property that GIP did not
own. (2014 Tort Case Doc. 152); Gadsden Indust. Park, LLC
v. CMC, Inc., 2016 WL 4158138 (N.D. Ala. Aug. 5, 2016).
The court entered a final judgment accordingly on August 5,
2016. (2014 Tort Case Doc. 153). After the time to appeal
expired, the United States used that judgment to obtain its
summary judgment in the then-still-pending 2013 Claims Case,
successfully arguing that GIP was collaterally estopped from
asserting that it owned the railroad tracks, as required to
establish its associated Fifth Amendment takings claim.
(See 2013 Claims Case Docs. 92, 94).
in May 2014, the United States filed the fourth and final
prior related lawsuit, suing GIP in this court under CERCLA.
See United States v. Gadsden Indus. Park, LLC, No.
4:14-cv-0992-KOB (the “CERCLA Case”), Doc. 1
(N.D. Ala. May 27, 2014). There, the United States sought to
recoup costs incurred by the EPA in responding to the release
and threatened release of hazardous substances from the slag
piles owned by GIP. (Id.) That claim relied on
CERCLA § 107(a), 42 U.S.C. § 9607(a), under which
certain enumerated potentially responsible parties
(“PRPs”) may be liable to reimburse the
government for amounts expended in performing an
environmental clean up. See Burlington N. &
Santa Fe Ry. Co. v. United States, 556 U.S. 599, 608-09
(2009); Cooper Indust., Inc. v. Aviall Services,
Inc., 543 U.S. 157, 161 (2004). For the basis of its
claim, the United States alleged that GIP was a PRP as the
“owner” or “operator” of a
“facility” under CERCLA § 107(a)(1), based
upon GIP's ownership of the slag piles. On April 1, 2015,
however, this court granted GIP's motion to dismiss,
holding that the slag piles themselves were not a
“facility” as defined by CERCLA, so GIP's
ownership of them was insufficient to make it a PRP. (CERCLA
Case Docs. 34, 35); United States v. Gadsden Indust.
Park, LLC, 2015 WL 1499203 (N.D. Ala. Apr. 1, 2015);
(see also CERCLA Case Docs. 22, 31); United
States v. Gadsden Indust. Park, LLC, 2015 WL 1499142
(N.D. Ala. Feb. 11, 2015); id., 2015 WL 1499156, at
*1 (N.D. Ala. Mar. 19, 2015). There was no appeal.
three Defendants in the instant action have moved to dismiss.
First, the Contractors have filed a joint motion to dismiss
citing Fed.R.Civ.P. 12(b)(6), or, in the alternative, to stay
the proceedings as to the claims against them pending the
resolution of the 2010 Claims Case and the 2014 Tort Case.
(See Docs. 7, 8, & 36). In support, the
Contractors argue that GIP's claims against them are part
of the same cause of action underlying the 2014 Tort Case.
(Doc. 7 at 1). As such, the Contractors assert, GIP is guilty
of “improper claim-splitting” and of violating
Fed.R.Civ.P. 15(a)(2) and Fed.R.Civ.P. 16(b). (Id.)
For its part, GIP denies that it has split its claim or
violated either of the Federal Rules cited by the
United States also moves for a dismissal, for lack of
subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1).
(Doc. 37). The United States argues that GIP's claims
against it are barred under 28 U.S.C. § 2680(a), which
imposes a discretionary-function exception to FTCA liability.
(See id.; Doc. 37-1). In support, the United States
has also submitted Byrd's previously-described affidavit.
opposing that motion, GIP first argues that the United States
is collaterally estopped from asserting that it is shielded
by the discretionary-function exception. (Doc. 46 at 1-2,
6-9). That is so, GIP asserts, based on this court's
determination in the CERCLA Action that the United States is
not entitled to reimbursement for its response costs from GIP
under CERCLA § 107(a). (Id.) Alternatively, GIP
contends that, irrespective of collateral estoppel, the
discretionary-function exception does not apply to the United
States' conduct, which GIP characterizes as
“knowing theft of [GIP's] property for purely
profiteering motive.” (Id. at 9-13). Finally,
GIP maintains that even if the discretionary function
exception might apply, it would be premature to dismiss the
action on that basis without affording GIP an opportunity to
conduct discovery to counter allegations in Byrd's
affidavit. (Id. at 13-19).
Rule of Civil Procedure 12(b)(1) authorizes a motion to
dismiss a complaint for “lack of subject-matter
jurisdiction.” Such jurisdictional attacks come in two
separate forms - a “facial” challenge or a
Eleventh Circuit has summarized:
“Facial attacks” on the complaint “require[
] the court merely to look and see if [the] plaintiff has
sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in his complaint are taken as true for
the purposes of the motion.” Menchaca v. Chrysler
Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert.
denied, 449 U.S. 953 (1980) (citing Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
(3d Cir. 1977)). “Factual attacks, ” on the other
hand, challenge “the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and
matters outside the pleadings, such as testimony and
affidavits, are considered.” Id.
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th
Cir. 1990). When the attack is factual, “no presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.” Id. at 1529 (quoting
Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.
Rule of Civil Procedure 12(b)(6), Fed. R. Civ. P., authorizes
a motion to dismiss a complaint on the ground that its
allegations fail to state a claim upon which relief can be
granted. On such a motion, the “‘issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the
claims.'” Little v. City of North Miami,
805 F.2d 962, 965 (11th Cir. 1986) (quoting Scheur v.
Rhodes, 416 U.S. 232, 236 (1974)). The court assumes the
factual allegations in the complaint are true and gives the
plaintiff the benefit of all reasonable factual inferences.
Hazewood v. Foundation Fin. Group, LLC, 551 F.3d
1223, 1224 (11th Cir. 2008) (per curiam).
12(b)(6) is read in light of Rule 8(a)(2), Fed. R. Civ. P.,
which requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief, ”
in order to “‘give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide
the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id. (citations, brackets, and internal quotation
marks omitted). “Factual allegations must be enough to
raise a right to relief above the speculative level
....” Id. Thus, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face,
'” i.e., its “factual content ...
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
court first considers the Contractors' motion, which asks
for a dismissal or, in the alternative, a stay of these
proceedings pending the resolution of the 2010 Claims Case
and the 2014 Tort Case. (Doc. 36). In support, the
Contractors argue that GIP has engaged in “improper
claim-splitting.” (Doc. 8 at 1). More particularly,
they maintain that GIP's claims against them, which are
based on the removal of kish and slag from the Excluded Real
Property, are part of the same cause of action underlying the
2014 Tort Case, in which GIP sought to recover based upon the
removal and burial of the sections of the spur line tracks,
also on the Excluded Real Property. The Contractors concede
that, in the 2014 Tort Case, GIP did not plead a right to
recover based on the removal of the kish and slag. (See
Id. at 13 (observing that the 2014 Tort Case differs
from the present action insofar as GIP has “added
‘kish' and ‘slag' to the property
allegedly taken by the Defendants”). Nevertheless, the
Contractors maintain that such claims made here are barred
under the claim-splitting doctrine because GIP's claims
in both cases are, the Contractors say, “based on the
same set of operative facts--that [the United States], CMC,
and Harsco tortiously converted private property and
negligently exceeded their powers and authority while
performing [an] EPA[-] directed cleanup of the Site.”
(Id. at 6 (internal quotation marks and citation
does not contest that the federal courts recognize a rule
against claim-splitting. Rather, GIP argues that it has not,
in fact, split its claim against the Contractors. That is,
GIP insists that its conversion and negligence claims against
the Contractors in this action, based on the removal of the
kish and slag, are “entirely distinct and independent
from GIP's prior claims relating to [the] conversion of
GIP's railroad track.” (Doc. 45 at 8).
Vanover v. NCO Financial Services, Inc., 857 F.3d
833 (11th Cir. 2017), the Eleventh Circuit recently
addressed, as an issue of first impression, the rule against
claim-splitting, which “requires a plaintiff to assert
all of its causes of action arising from a common set of
facts in one lawsuit.” Id. at 841 (quoting
Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir.
2011). In other words, “a plaintiff may not split up
his demand and prosecute it by piecemeal, or present only a
portion of the grounds upon which relief is sought, and leave
the rest to be presented in a second suit, if the first
fails.” Id. (internal quotation marks and
citation omitted). The claim-splitting doctrine thus ensures
fairness to litigants, conserves scarce judicial resources,
and promotes the efficient and comprehensive disposition of
court further recognized in Vanover that the
claim-splitting doctrine derives from, and is analyzed as an
aspect of res judicata known as claim preclusion.
857 F.3d at 836 n. 1, 841-42. So like res judicata,
the claim-splitting doctrine may be raised by way of a Rule
12(b)(6) motion to dismiss. Id. at 836 n. 1.
However, the Eleventh Circuit explained, whereas res
judicata might apply only after the first suit has
reached a final judgment, the claim-splitting doctrine
applies where a second suit has been filed but no final
judgment has yet been reached. Id. at 840 n. 3, 841.
Nevertheless, Vanover held that the test for
determining whether the rule against claim-splitting applies
effectively incorporates the other requirements of res
judicata by asking “whether the first suit,
assuming it were final, would preclude the second
suit.” Id. at 841 (quoting Katz, 655
F.3d at 1218). That is, the Eleventh Circuit recognized, a
court is to examine whether both cases (1) “involve[ ]
the same parties [or] their privies” and (2)
“arise from the same transaction or series of
transactions.” Id. at 841-42.
“Successive causes of action arise from the same
transaction or series of transactions when the two actions
are based on the same nucleus of operative facts.”
Id. at 842 (citing Petro-Hunt, LLC v. United
States, 365 F.3d 385, 395-96 (5th Cir. 2004)).
outset, the court observes that when the Contractors filed
their motion to dismiss, the 2014 Tort Case was, of course,
still pending. So with no final judgment in that case,
res judicata could not have itself applied to
GIP's claims in this action. Therefore, the
Contractors' motion correctly invoked the related rule
against claim-splitting. Since then, however, Judge Bowdre
has entered a final judgment on the merits of GIP's
claims in the 2014 Tort Case, ruling in favor of the
Contractors. As such, it makes little sense for this court to
ask whether this suit “would be” precluded as
res judicata by the 2014 Tort Case, “assuming
it were final, ” as the court would do in a
claim-spitting inquiry under Vanover. Rather, since