UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-21829-GAYLES

WALTER J. STANTON III, Esq.,

Plaintiff,

v.

BERKLEY ASSURANCE COMPANY, et al.,

Defendants.

/ 

ORDER

THIS CAUSE is before the Court on Defendant Berkley Assurance Company’s

(“Berkley”) Motion to Lift the Stay and Dismiss Complaint ("Motion"), [ECF No. 33], which is 

joined by Defendant National Union Fire Insurance Company, [ECF No. 40], and Defendant 

Berkley Assurance Company’s Motion to Strike [Plaintiff’s] Unauthorized Sur-reply (“Motion to 

Strike”), [ECF No. 51]. Defendants move to dismiss Plaintiff’s Complaint [ECF No. 1] with 

prejudice based on res judicata or claim preclusion. The Court has reviewed the Motion, 

Plaintiff’s Response [ECF No. 36], Defendant's Reply [ECF No. 39], the Joint Status Report 

filed by Parties [ECF No. 42], the supporting exhibits, and the record in this case. For the 

following reasons, the Motion to Lift the Stay is GRANTED; the Motion to Dismiss is 

DENIED; and the Motion to Strike is GRANTED.

1

Defendants argue in their Motion to Dismiss that a Louisiana District Court’s summary 

judgment ruling (the “Louisiana Action”) in favor of Berkley precludes Plaintiff’s claims against 

1 The Court agrees with Plaintiff that Defendant’s Notice of Supplemental Authority, [ECF No. 46], 

amounts to an impermissible sur-reply.

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all Defendants here. Customarily, claim preclusion is an affirmative defense that should be raised 

under Rule 8(c), rather than a motion to dismiss. See Concordia v. Bendekovic, 693 F.2d 1073, 

1075 (11th Cir. 1982). “Nevertheless a party may raise a res judicata defense by motion rather 

than by answer where the defense's existence can be judged on the face of the complaint.” Id.; 

see also Aning v. Fed. Nat'l Mortg. Ass'n, 754 F. App'x 816, 818 (11th Cir. 2018). 

In the Complaint, Plaintiff alleges that he was a nominal defendant in the Louisiana 

Action and, therefore, didn’t have the ability to defend his interests. [ECF No. 1]. He also alleges 

that this case involves coverage for other lawsuits not litigated in the Louisiana Action and for 

coverage pursuant to an excess policy. Id. Defendants challenge those factual allegations and 

argue that Plaintiff was more than a nominal defendant in the Louisiana Action based on his 

active litigation in that case and his subsequent appeal.2 [ECF No. 39 at 1-2]. Defendants also 

assert that the relevant policy is a subsequent, not excess, policy. [ECF No. 39 at 2]. 

Generally, a determination of whether a litigant was or was not a nominal defendant is 

not outcome determinative for claim preclusion. Rather, claim preclusion can even be used 

against non-parties “in privity” when their litigation interests are sufficiently “closely aligned” 

with the litigant. See E.E.O.C. v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1286 (11th Cir. 2004) 

(“‘Privity’ is a flexible legal term, . . . applying when a person, although not a party, has his 

interest adequately represented by someone with the same interest who is a party.”). As the 

2 In support of their argument, Defendants request that the Court take judicial notice of the docket and 

several filings in the Louisiana Action. But, as a general rule, a court may only take judicial notice of 

prior proceedings insofar as they are properly introduced into evidence. Concordia, 693 F.2d at 1076 (“As 

a general rule, a court in one case will not take judicial notice of its own records in another and distinct 

case even between the same parties, unless the prior proceedings are introduced into evidence.”) (quoting 

Guam Investment Co. v. Central Building, Inc., 288 F.2d 19 (9th Cir. 1961)). The Court declines to take 

judicial notice of the entire docket in the Louisiana action, especially since the parties dispute the 

meaning and significance of various pleadings and other court documents, including the district court’s 

order granting summary judgment. However, at summary judgment in this case, the Court may consider 

the docket and any relevant filings in the Louisiana Action if they are properly introduced by Defendants. 

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parties here dispute whether Plaintiff had a full and fair opportunity to litigate his interests in the 

Louisiana Action and the nature of the relevant policy, this Court cannot determine whether res 

judicata applies from the face of the Complaint. See Concordia, 693 F.2d at 1076–77 (finding 

that pleadings from a prior action were not sufficient to “satisfy the minimum requirement that 

the defense of res judicata appear from the face of the complaint”). This determination is best left 

for summary judgment.

Based on the foregoing, it is ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion to Lift the Stay and Dismiss this Action with prejudice, [ECF Nos. 

33, 40], is GRANTED in part and DENIED in part. Defendants’ Motion to Lift the 

Stay is GRANTED. The stay ordered in this case is hereby lifted and the case shall be 

reopened. Defendants’ Motion to Dismiss is DENIED.

2. Plaintiff’s Motion to Strike Defendants Notice of Supplemental Authority, [ECF No. 51],

is GRANTED.

DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of March, 2024.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

cc: All Counsel of Record

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