### [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________ ________________

No. 11

- 11287

________________________

D.C. Docket No. 3:09

- cv

- 00123

- WBH

STARSHIP ENTERPRISES OF ATLANTA, INC.,

Plaintiff

- Appellant,

versus

COWETA COUNTY, GEORGIA, EVA WAGNER,

in her individual and of ficial capacity,

Defendants

- Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia

_________ _______________
(February 14, 2013)

Before TJOFLAT, CARNES and JORDAN , Circuit Judges

.

Case: 11-11287 Date Filed: 02/14/2013 Page: 1 of 222 

### TJOFLAT, Circuit Judge:

Starship Enterprises of Atlanta, Inc. (“Starship”)

, a purveyor of various

novelty items including sexually explicit m aterials, appeals the judgment of the

District C ourt dis miss ing under Federal Rule of Civil Procedure 12(b)(6) its federal

constitutional claims brought under 42 U.S.C. § 1983 1 

### against Coweta County,

Georgia , and Eva Wagner, the Coweta County Business License Director

, 2 

### and

refusing to exercise supplemental jurisdiction over its state constitutional claims. 3



### Starship’s claims stem from the C ounty’s decision to uphold Wagner’s denial of its

application for a business license to operate a retail book store

. Starship promp tly

challenged that deci sion in two courts . First, Starship petitioned the Superior

Court of Coweta County for a writ of mandamus directing the C ounty and Wagner

to grant its license application . T hen, four months later, it brought in the United

1 42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or othe r proceeding for redress.

2 Starship sued Wagner in her official and individual capacities. Starship appeals the judgment for Wagner in her individual capacity.

3 See 28 U.S.C. § 1367 (c) (3) (“The district courts may decline to exercise supplement al jurisdiction over a claim . . . if the district court has dismissed all claims over which it has original jurisdiction. ” )

.

Case: 11-11287 Date Filed: 02/14/2013 Page: 2 of 223 

### States D istrict Court for the Northern District of Georgia the action now before us

on appeal. While th is action w as still in the pleading stage

, the Superior Court

granted Starship a writ of mandamus, and Wagner issued the business license at

issue. The Distric t Court then dismissed Starship’s complaint, concluding that the

§ 1983 claims arising from denial of the business license were barred by the

doctrine of res judicata and that the § 1983 claims not barred by the doctrine failed

as a matter of law. We find no error in the District Court’s disposition of

Starship’s § 1983 cla ims and the court’s decision not to exercise supplemental

jurisdiction over Starship’s state law claims and therefore affirm.

I.

We begin with a r ecitation of the relevant facts, w hich, for the most part, are

not in dispute. 4 

### Starship describes itself as a commercial business that sells a wide

variety of items, including tobacco products, clothing, and novelty items. In

addition , it sells some sexually explicit videos, DVDs, and m agazines. Starship’s

stores vary their inventory, use of floor space, and sales of sexually explicit

material to comply with local ordinances under which the stores operate.

4 We take the facts from Starship’s first amended complaint, as amended, and the documents Coweta County and Wagner attached to t heir motion to dismiss and the ir answer

. The District Court considered those documents in granting the defendants’ motion to dismiss.

Case: 11-11287 Date Filed: 02/14/2013 Page: 3 of 224 

### In April 2008, Starship leased a n empty building in an unincorporated area

of C oweta 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 A ttorney that , pursuant to Chapter 18, Art. II

, of the

Coweta Coun ty 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 c ounty 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. 5



### 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 t o affirm that it would limit the sexually explicit material the

5 At the time of Starship’s application, Coweta County’s Sexually Oriented Business

Ordinance defined an adult bookstore as one having as a “‘substantial business purpose’ the offering of materials which are intended to provide sexual stimulation or sexual gratification to customers, and which are distinguished by or characterized by an emphasis on matter depicting,

describ ing or relating to specified sexual activities, or specified anatomical areas.” “Substantial business purpose” was defined as involving 25 percent or more of floor area, gross sales , or employee full

- time equivalents. Record, vol. 1, no. 16, at 3

– 4.

Case: 11-11287 Date Filed: 02/14/2013 Page: 4 of 225 

### store sold so as to eliminat e the need for a license for a sexually oriented b usiness.

S tarship needed a general business license because if it were to operate a sexually

oriented b usiness, it could not obtain a permit to operate its store at the location

under lease, which was not zoned to allow a sexually oriented b usiness . Nor could

it obtain a building permit to renovate the building it had leased.

Despite the Coun ty’s doubt that Starship’s store could qualify for a general

business license, the County Attorney wrote Starship’s counsel on N o vember 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 C ounty issued the permit.

Starship thereafter contacted Eva Wagner , the Coweta County B usiness

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 an d a Certificate of Occupancy is sued. Within two months, the

renovation was c ompleted , at a cost of $150,000 , and on January 19, 2009, a

Certificate of Occupancy was issued.

Meanwhile, o n January 15, Starship ’s attorn ey met with the County

Attorney

, Wagner

, and ot her c ounty officials. Counsel presented the offic ials with

a diagr am 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

Case: 11-11287 Date Filed: 02/14/2013 Page: 5 of 226 

### issue after Starship fully stocked the store in accordance with the diagram. On

January 20, Starship filed i ts 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 28 to view its inventory to determine whether it had been placed

as depicted in the d iagram, but she failed to appear

.

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 meeting s with c ounty 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 C ounty 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 a nd thus w ould qualify for a general business license. On February 6

,

Wagner , applying the new Sexually Oriented Business Ordinance, denied

Case: 11-11287 Date Filed: 02/14/2013 Page: 6 of 227 

### 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

t o 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 rec ommend that the Board of C ounty C ommissioners 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 consti tute 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, vot ed 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 w rit on April 19, 2010 . Adopting

the Appeals Committee ’s finding as to how Starship planned to operate the store,

the court revers ed the Board of Commissioners’ decision affirm ing Wagner’ s

denial of the business license and ordered that the license issue.

Case: 11-11287 Date Filed: 02/14/2013 Page: 7 of 228 

### At the time the Superior Court concluded the mandamus proceeding,

Starship’s lawsuit in the District Court against the County and Wagner, wh ich 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

complain t , as amended, co ntained ten causes of action ; 6 

### eight sought legal and

6 Starship’s first amended complaint, as amended , alleged:

C aus e s of A c t i on

92

. B ill o f Attai nd e r

. T h e c o m b i ne d le g isl a ti v e a n d e x ec u t o ry ac ts o f t h e C oun ty C o mm is s i o n e rs o f C o w e ta C oun ty in e st a b lis h i n g law s w h ich w e re

t h e n r e tr oac ti v e ly ap p li e d b y t h e C o m m i ss i o n er s an d b y W ag n e r t o S t ar s hi p

t o p reven t S t ar s hip ’s bus i ness ope r a t i o n w he n t h e bu s i ne ss li cen se

app l i ca t i on
, an d t he n t h e app e a l o f t h e den i a l o f t he bu s i ne ss li cen se c a m e be f o re t he m cons t it u t e d a v i o l a t i o n o f A r ti c l e I, Sec t i o n 1 0 o f t he U n it e d

S t a t e s C on s tit u ti on
, an d G a

. C on s tit u ti on
, A r ti c l e I, Sec t i o n I, Pa r ag r ap h X

,

as con s tit u ti n g a b i l l o f a t t a i nde r. T h e C o w e t a C oun t y O b s cen i t y O r d i nanc e

o f J anua r y 26, 2009

, an d t h e Sexua l l y O r i en t e d B u s i ne ss O r d i nanc e o f

J anua r y 26

, 2009

, a re e a ch un c on s tit u ti o n a l b ill s o f a tt a i nd e r a s a pp li e d t o
P l a i n ti f f

.

93. Subs t an t i ve D ue P r oce s s

. T he comb i ned l eg i s l a t i ve and e xecu t o r y ac t s of

t he C oun t y C o mm i ss i one r s of C o w e t a C oun t y i n e s t ab l i s h i ng l a w s w h i ch w e r e

t hen r e t r oac t i ve l y app l i ed t o S t a r s h i p t o p r event it s bu s i ne s s ope r a t i on w hen t he

den i al of t he bu s i ne s s li cen s e app e al came befo r e t hem cons t it u t ed a v i o l a t i on of t he s ub s t an t i ve due p r oce s s component of t he Fou r t een t h A m endment of t he

U n it ed S t a t es C on s tit u ti on.

94. F i rs t Am e ndm e nt Un it ed S t a t e s Con s tit u ti o n a s W r i tt en a nd App li ed

. A pp lic a ti o n of t h e o r d i na n ce s a dop te d by t h e C oun t y C o mm is s i o n i n J anu a r y of 2009, in t he manner de s c r i bed w it h i n t h i s C o m p l a i n t , con stit u t ed an “ as

app l i ed” b r ea c h of t he F ir s t A m endment of t he U n it ed S t a t es C on s tit u t i on. A dd iti ona l l y
, i n t he i r ac t ual w r iti ng, t h e p r ov isi ons o f Sec ti o n 18

- 241

p e rt a i n i n g t o a nd d ef i n i n g “a du l t b ook st o r e or a du lt v i de o st o r e ” c on stit u te d Case: 11-11287 Date Filed: 02/14/2013 Page: 8 of 229 i m p e r m is s i b l e c on te n t ba s ed d is c ri m i na ti o n on it s fac e in v i o l a ti o n of t he

14th a nd 1st A m e nd m e n t s of t he U n it ed S t a t e s C on s tit u ti o n.

95. Due P r oce s s V i o l a t i on As App li ed

. A pp li ca t i on of t he o r d i nanc e s

con s tit u t ed an ‘ as app l i ed’ b r ea c h of t he gua r an t ees of t he C on s tit u ti on of t he

S t a t e of G eo r g i a and t he C on s tit u ti o n of t he U n it ed S t a t e s t o p r o ce du r al due

p r o ce ss

.

96. Adv e r t i s i ng S a n c ti o ns a s B r e ac h of G e o r g ia a nd Un it ed S t a t e s Con s tit u ti o n s

. T he adv e r ti s i ng c r it e r i a of t he o r d i nance by w h i ch t he C oun t y i m po s es t he s ecu ri ng of an ad u l t b u s i nes s li cens e [alon g w it h th e co n co m it an t

s it e re s t r i c t i o n s ] u p o n an y b u s i ness u s i ng ce rt a i n w o r ds i n it s adve rti s i ng

con s tit u t es a v i o l a t i on of t he G eo r g i a C on s tit u ti on A r t I

, S ec

. I

, P a r a 1 a nd 5

a nd t he F i rs t A m e n d m e nt of t he U n it ed S t a t e s C on s tit u ti o n.

97. O r d i na n c e V i o lat es F irst Am e ndm e nt W h e re No T i m e L i m it

. T he c oun ty

o r d i nance p r ov i s i ons conc e r n i ng t he i ss uance of, or den i al of a bu s i ne s s li cen s e, ef

f ec t i ve l y ve s t ed unf e tt e r ed d i s c r e t i on t o t he coun t y dec i s i on m aker w he r e

c rit e r i a not p r o v i d e d f or i n t he C ou n ty’ s o r d i n a n ce s w a s u s e d i n d e n y i ng S t a r s h i p ’ s a pp li c a ti o n. F u rt he r m o r e t h e c oun t y o r d i na n c e fa ile d t o c on tai n a li m i t o n t h e a m ount o f ti m e w it h in wh i ch t he de c i s i on m aker w ou l d i ss ue or deny t he l i cen s e w as and r ema i ns un c on s tit u ti o n a l , bo t h fac i a ll y a nd a s

a pp li ed.

98. Wagner I nd i v i dual and Off i c i al L i ab i lit y for F ir s t and Fou r t een t h

Amendment B r ea c h

. Wagne r ’ s r e j ec t i on of P l a i n ti ff ’ s bu s i ne s s li cen s e

con s tit u t ed a v i o l a t i on of t he P l a i n ti ff ’ s F ir s t and Fou rt een t h A m endment

r i gh t s

. Wagne r ’ s ac t i ons con s tit u t ed a p ri or r e s t r a i nt i n con t r aven t i on of t he

F i r s t A m endment and con s t it u t ed con t ent ba s ed d i s c r i m i na t i on aga i n s t

P l a i n ti ff ’ s p r o t ec t ed F i r s t A m endment ac t i v it y i n v i o l a t i on of t he Fou r t een t h

A m endmen t’ s gua r an t ee of equal p r o t ec t i on. W agne r ’ s r e j ec t i on and her

r ea s ons for s ame w e r e uphe l d by and r a t i f i ed by t he C o w e t a C oun t y C o mm i ss i on r ef l ec t i ve of t he f a ct t hat her conduct w as au t ho r i zed, condoned

a nd r a t i f i ed by t he C oun t y C o mm i s s i on a nd h e r condu c t w a s a n effec t u a ti o n of C oun t y p o li c y

.

99. Den i al of Equal P r o t ec t i on: A t t he t i m e S t a r s h i p ’ s bu s i ne s s li cen s e

app l i ca t i on w as p r e s en t ed t o Wagne r
, t he de c i s i on t o deny a c e r ti f i ca t e t o any bu s i ne s s cou l d be ba s ed on l y upon a de t e r m i na t i on by t he d i r ec t or t hat t he

“bu s i ne s s engag e d i n un l a w ful ac t i v it y or i n s uch a manner as t o v i o l a t e l a w ful

o r d i nanc e s adop t ed by t he boa r d of c o mm i s s i on e r s

. ” S ec . 18

- 4 1, O r d i n a n ce s of C o w e t a C oun ty

, 2 009. Case: 11-11287 Date Filed: 02/14/2013 Page: 9 of 2210 

### equitable relief under 42 U.S.C. § 1983 for the defendants’ alleged infringement of

a. U p to t he p oint i n t i m e t hat t he S t ar s hip sub m itt ed i t s appl i ca t i on for a b u s i ness l i cen s e
, C o w e t a C oun t y app l i e d t h e abov e

- de s c r i be d c rit e r i a t o a l l

bu s i ne s s e s s eek i ng b u s i ness li censes. b. S t a r s h i p ’ s bu s i ne s s li cen s e app l i ca t i on w as t r ea t ed d i ff e r en t l y f r om other

person s an d b u s i nesse s appl y i n g fo r b u s i nes s li censes

. W he n i t ap p li e d f o r

t h e b us i ness l i cen s e i t w as not “eng a ged i n un l a w ful ac t i v it y or i n s uch a

manner as t o v i o l a t e l a w ful o r d i nanc e s adop t ed by t he B oa r d of

C o mm i ss i one r s

. ”

c. T he r e w as no r a t i onal ba s i s for t he d i ff e r ence i n t r ea t m ent be t w een S t a r s h i p and o t h e r app li c a n t s f or b u s i n e s s li c e n s e s

. d

. T h e D ef e ndan t s
, an d e a c h o f t hem

, unequa l l y app l i e d t h e o r d i nanc e s pertaining to bu s i n e s s li c e n s e a pp r o v a l a nd d e n i a l f or t he pu r p o s e of

d i s c r i m i n a ti n g a g a i n s t S t a r s h i p.

e. T he D ef e ndan t s ’ w ill ful den i al of P l a i n ti ff ’ s F ir s t A m endment r i gh t s as demons t r a t e d b y t h e unequ a l t r ea t m en t o f S t a r s h i p r equ i r e s t h e u s e b y t h i s C ou r t o f s t r i ct s c r u ti n y i n t h e a s se s s m e n t o f t h e D efe nd a n ts ’ condu c t.

100. Subs t an t i ve and P r ocedu r al Due P r oce s s Under Geo r g i a La w : T he C ode of

O r d i nanc e s of C o w e t a C oun t y has no w r itt en gu i de l i nes by w h i ch t he B oa r d of

C o mm i ss i one r s a r e t o exe r c i s e t he i r con s i de r a t i on of an a ppeal p r oce s s ed

t h r ough t he A p p ea l s C o m m itt e e an d n o cr i t er i a b y w hic h t he y ar e t o sus t a i n

o r r evers e o r o t her w i se r econ s i der t he den i al of a bu s i ne s s li cen s e. T he l ack of

a s ce rt a i nab l e s t anda r ds by w h i ch to s u s t a i n or deny an app e al t o t he

C o mm i ss i on r ende r s t he app e al p r ocedu r e a r b it r a r y and ca p r i c i ous a nd a s

a pp li ed v i o l a t e t he r i ght t o due p r o ce ss

. 101. S t a r s h i p ’ s i nab i lit y t o ob t a i n a bu s i ne s s li cen s e f r om C o w e t a C oun t y w as

t he re s ul t o f th e co n t en t o f t h e s t oc k an d t rad e o f S t ar s hip ’ s bus i ness.

102

. T ak i ngs U nder t he G eo r g i a C on s tit u ti on

. T h e l ea s eho l d i n t e r e s t w h i ch

S t ar s hip he l d at t he t i m e of the ac t i o n s of t he Defe n da n t s cons t it uted a proper t y i nte r est for p u rposes of G eorg i a l a w

. S t ar s hip ’ s p l an n ed u se of i t s l easeh o l d

p roper t y w as a use f o r w h ic h t h e le a s e d p r op e rt y w a s p r op e r pu rs u a n t t o t h e

z on i n g la w s o f C o w e t a C oun ty a t t h e t i m e o f t h e s ub m i ss i o n o f t h e bu s i ne s s li cen s e app l i ca t i on

. A f t e r t h e adop t i o n o f t he ne w o r d i nanc e s o n J anua r y 26

, 2009

, S t a r s h i p ’ s p l anne d u s e o f i t s l ea s eho l d p r ope r t y w as n o l onge r a

u s e w h i c h t h e C oun t y w a s go i n g t o a l l o w

. W agne r ’ s fo r m a l den i a l o f t he

bu s i ne s s li cen s e c l a i m e d t ha t t h e “p r opo s e d l oca t i o n doe s no t pe r m i t a

s exua l l y o r i en t ed bu s i ne s s

. ” Th e enfo r cemen t o f t h e po s t

- bu s i ne s s li cen s e

s ub m i ss i o n o r d i nance con s tit u t e d a t ak i ng s o f S t a r s h i p ’ s l ea s eho l d i n t e r e s t

,

ac t i onab l e unde r t h e l a w s and C on stit u ti on o f t he S tat e o f G e o r g ia

, a n d

r e nd e r e d t h e p r op e rt y effec ti v e l y w o rt h le s s to S t a r s h i p

. Case: 11-11287 Date Filed: 02/14/2013 Page: 10 of 2211 

### Starship’s federal constitutional rights , and two pres ented claims under the Georgia

C onstitution. T he te n causes of action were not pled as separate counts, each with

factual allegations germane to it . R ather, the t en causes of action were pled in

successive paragraphs , each based on one or more constitutional provisions or

theories of recovery, preced ed by eighty

- four paragraphs of factual allegations and

a seri es of exhibits, which were free standing in that none were incorporated by

reference into any of the paragraphs asserting the causes of action. 7 

### For

7 Paragraphs 8 through 91 of the complaint are a “Factual Statement.” This statement incorporates by reference several exhibits, each attached to the comp laint by number. None of

the ten causes of action incorporates any of the allegation s of paragraphs 8 through 91 or the

attached exhibits. Consequently, it is quite difficult to know which of the allegations is germane

to which claim. We have been encountering complaints like Starship’s complaint for over two decades

, referring to them as “shotgun” p leadings. “[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

th e 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 c oncept 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: obstr ucts 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 (11th Cir. 2010) (“Shotgun pleadings impede the admini stration 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 therefor e 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). Case: 11-11287 Date Filed: 02/14/2013 Page: 11 of 2212 

### convenience, we recast the ten causes of acti on into seven s eparate counts, as

follows: 8



### Count 1, Substantive Due Process

. The County and Wagner deprived Starship of the use of its store property between the date it filed its application for a business license, January 20, 2009, and the date the Superior Court issued the writ of mandamus, April 19, 2010, in

violation of the substantive component of the Due Process Clause of

the Fourt eenth Amendment.

Count 2, Bill of Attainder

. The County enacted two ordinances on January 26, 2009, for the purpose of punishing Starship because it

sold adult materials in its stores , in violation of U.S. Const. Art. 1, § 10.

Count 3, Equal Protec tion . The County and Wagner denied Starship the equal protection of the laws in violatio n of the Fourteenth

Amendment in denying its application for a business license when, at the same time, it would have granted a business license to a similarly

situate d applicant.

Count 4, First Amendment

. The Business License Ordinance is invalid on its face, in violation of the First Amendment, because it

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 v ague 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 accept s a shotgun complaint and opt s 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 inch es thick.

8 Because the District Court, after disposing of Starship’s federal claims, properly declined to exercise supplemental jurisdiction over the state law claims and dismissed them without prejudice, we do not recast those claims

.

Case: 11-11287 Date Filed: 02/14/2013 Page: 12 of 2213 

### does not prescribe a limit of time in which the County must approve or reject an application for a business lic ense. 9



### Count 5, First Amendment . The amount of time Wagner took to pass on Starship’s application for a business license under the Business

License Ordinance deprived Starship of its Fi rst Amendment right to speech in displaying for sale and selling adu lt materials at its store.

Count 6, First Amendment

. The Sexually Oriented Business

Ordinance is invalid on its face because its regulation of adult

book stores regulates speech of a specific content.

Count 7, First Amendment . Wagner denied Starship’s application for

a business license for the purpose of preventing Starship from exercising speech in displaying for sale and sell ing adult materials at

its book store. 10



### The defendants moved the District Court to dismiss Starship’s c omplaint on

two alternative grou nds. First, the complaint failed to state a claim for relief. 11



### Second, the claims it presented were barred by the doctrine of res judicata because

Starship could have asserted those claims in the petition for writ of mandamus it

filed an d litigated in the Superior Court of Coweta County. The court granted the

9 Some of Star ship’s First Amendment causes of action are asserted only under the First Amendment. We assume the pleader of the complaint intended to all ege the violations under the

First Amendment as incorporated under the Due Process Clause of the Fourteenth Amendmen t.
See Cantwell v. Connecticut , 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940).

10 The complaint contains a cause of action asserting the violation of Starship’s right to procedural due process under the Fourteenth Amendment. Record, vol. 1, no. 16, ¶ 95. Starship

withdrew the claim before the court ruled on the defendants’ motion to dismiss.

11 See Fed. R. Civ. P. 12(b)(6). The defendants’ answer to the complaint also alleged, as an affirmative defense, that the complaint failed to stat e a claim for relief.

Case: 11-11287 Date Filed: 02/14/2013 Page: 13 of 2214 

### defendants’ motion. It held that Counts 1, 3, 4, 5 and 7 were barred by the doctrine

of res judicata and that Counts 2 and 6 failed to state a claim for relief. The court

dismisse d Count 2 on the ground that the ordinances cited in the complaint did not

constitute a Bill of Attainder b ecause the ordinances did not single out Starship for

punishment. The court dismissed Count 6 , which alleged that the Business License

Ordinance is facially invalid, on the ground that Count 6’s “conclusory

allegations” failed to state a claim for relief. The court then declined to exercise

supplemental jurisdiction over the remaining state law claims, dismissing them

without prejudice. Starship the reafter took this appeal.

II.

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). With the se standards in hand, we address in part III below

Case: 11-11287 Date Filed: 02/14/2013 Page: 14 of 2215 

### the District Court’s disposition of five of the complaint’s seven counts under the

doctrine of res ju dicata and deal with two of the counts in the margin

. 12 

### We affirm

the cour t’s nonprejudicial dismissal of Starship’s state law claims without

discussion.

III.

The District Court found that Counts 1, 3, 4, 5, and 7 were barred by the

doctrine of res judicata

. 13 

### When deciding whether claims are barred by res

12 Starship abandoned by operation of law its appeal of the District Court’s dis missal of

Count 6 by not addressing the merits of the ruling in its opening brief in this appeal. Access Now, Inc. v. Southwest Airlines Co. , 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument that has not been briefed before the court is deemed abandoned and its merits will not be addressed.”) W e consider frivolous the Bill of Attainder claim in Count 2 , and therefore do

not discuss it except to say that the challenged ordinances, on their face, do not target Starship. Rather, they apply to any business in Coweta County. See Houston v. Williams , 547 F.3d 1357, 1364 (11th Cir. 2008) (quoting Nixon v. Adm’r of Gen. Servs.

, 433 U.S. 425, 468, 97 S. Ct. 2777, 2803, 53 L. Ed. 2d 867 (1977)) (defining a Bill of Attainder as “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial”).

13 Stars hip argues that the District Court erred in invoking the doctrine of res judicata in dismissing some of its claims because its complaint contained insufficient facts on which to adjudicate the defense. “[W]hen addressing a claim of res judicata, a court m ust examine the record to determine whether the issue has been actually or could have been litigated and to ascertain whether there has been a final judgment in the other proceeding.” Jones v. Gann , 703 F.2d 513, 515 (11th Cir. 1983) (citing Concordia v. B endekovic , 693 F.2d 1073 , 1076 (11th Cir. 1982)). A party may raise the defense of res judicata in a Rule 1 2(b) (6 ) motion when the existence of the defense can be judged from the fac e of the complaint. Id. Although analysis of

a Rule 12(b)(6) motion is “limited primarily to the face of the complaint and attachments thereto,” a court may consider documents attached to the motion to dismiss if they are referred to in the complaint and are central to the plaintiff’s claim. Brooks v. Blue Cross and Blue Shield of

Florida , 116 F.3d 1364 , 1369

– 70 (11th Cir. 1997) (citation omitted) . When the c ourt considers matters outside the pleadings, however, the Rule 12(b)(6) motion converts into a Rule 56 motion

for summary judgment. Garcia v. Copenh aver, Bell & Assoc s , 104 F.3d 1256, 1266 n.11 (11th

Case: 11-11287 Date Filed: 02/14/2013 Page: 15 of 2216 

### judicata, federal courts apply the law of the state in which they sit. Burr & Forman

v. Blair , 470 F.3d 1019, 1030 (11th Cir. 2006) (citing NAACP v. Hunt , 891 F.2d

1555, 1560 (11th Cir. 1990)). This case arose in Georgia, so we apply the Georgia

law of res judicata. In G eorgia, “the doctrine of res judicata prevents the re

litigation of all claims which have already been adjudicated, or which could have

been adjudicated, between identical parties or their privies in identical causes of

action.” James v. Intown Ventures, L.L.C. , 290 Ga. 813, 816, 725 S.E.2d 213

Cir. 1997). The court must notify the parties and give them ten days to submit “any relevant evidence and arguments in support or opposition to the merits.” Id. ( citation omitted )

. We have

excused the te n

- day requirement, however, when the “parties are aware of the court’s intent to consider matters outside the record and have presented all the materials and arguments they would have if proper notice had been given.” Id. (citation omitted). Here, the def endants 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 atta ched 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 automa tically 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 Starshi p’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 form al notice of an intent to convert the motion in to 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 shou ld 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 Defen dants’ 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.

Case: 11-11287 Date Filed: 02/14/2013 Page: 16 of 2217 

### ( 2012) (quoting Waldroup v. Greene C nty Hosp. Auth. , 265 Ga. 864, 865(1) , 463

S.E.2d 5 (1995) ); Ga. Code Ann. § 9

- 12

- 40 (West 2012)

. 14



### “Three prerequisites must be met before res judicata will apply: (1) identity

of the cause of action; (2) identity of the parties or their privies; and (3) previous

adjudication on the merits by a court of competent jurisdiction.” Id. The third

prerequisite is present here

— a previous adjudication on the merits by a court of

compe tent jurisdiction. Although Starship disagrees, t he second prerequisite is

present as well

— an identity of the parties

. Starship’s suit in the Superior Court was

against Coweta County, Eva Wagner in her official capacity, and several members

of the Board of Commissioners of Coweta County. Starship’s suit in federal court

w as against Coweta County and Eva Wagner in her official and individual

capacit ies

. An identity of parties is not present , Starship argues, because Wagner

was not a party in the Superior Court litigation in her individual capacity.

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

14 Section 9

- 12

- 40 of the Official Code of Georgia Annotated provides:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was

ren dered until the judgment is reversed or set aside. Case: 11-11287 Date Filed: 02/14/2013 Page: 17 of 2218 

### the rule that “appellate courts generally will not consider an issue or theory that

was not raised in the district court

, ” FDIC v. Verez Assurance , Inc. , 3 F.3d 391,

395 (11th Cir. 1993) (citation om itted)

. Th e 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 f ailed 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 Distric t 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 . W hether res judicata bars Starship’s claims therefore tu rns 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

Case: 11-11287 Date Filed: 02/14/2013 Page: 18 of 2219 

### matter which are not raised will be res judicata pursuant to OCGA § 9

- 12

- 40.” Id.

(quoting Lawson v. Watkins

, 69 Ga. 147, 149, 401 S.E.2d 719 ( 1991) (emphasis in

original) ).

As we set out in part II, supra , S tarship claim ed that rejection of its business

license application deprived it of the use of its property between the date it filed its

application for a b usiness 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 viol ated 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 (Count 4)

. These

claims arise from the same subject matter as Starship’s claim for mandamus relief

in the Superior Court. That claim stemmed from Wagner’s denial of Starship’s

application for a business license based on her determination that Starship could

not qualify under the Business License Ordinance and Sexually Oriented Busin ess

Ordinance

, and the Board of Commissioners’ affirmance of the denial. The claims

asserted in Counts 1, 3, 4, 5, and 7 arise from that same administrative ruling

.

Case: 11-11287 Date Filed: 02/14/2013 Page: 19 of 222 0 

### In its mandamus petition

, Starship allege d that the C ounty’s ordinances

“provide no guid elines 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 C ounty’s “business

license procedures included numerous errors of law ... as appl ied 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 enacte d 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 an d impose no time limit for its approval or rejection of a license

application; that the C ounty applied its ordinances to Starship in violation of the

First Amendment ; that Starship notified the C ounty that it would comply with the

new Sexually Oriented Business Ordinance; that it would not operate its store as an

adult bookstore; that the C ounty “establish[ed] laws which were then re troactively

applied to Starship to prevent its business operation ; ” and that the C ounty engaged

in a policy to deny the business license based on “the asserte d ground that the

Case: 11-11287 Date Filed: 02/14/2013 Page: 20 of 2221 

### applicant will

— at a time in the future

— engage in conduct in violation” of the la ws

of the C ounty

. 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

Star ship met the requirements of the C ounty ordinances and that the C ounty 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 litigate d in a prior action. 15

15 Starship contends that because Georgia law precluded a prayer for damages in a petit ion for a writ of mandamus, the District Court’s application of the doctrine of res judicata was inappropriate. Starsh ip is wrong. True, the writ of mandamus is an “extraordinary remed[y] available in limited circumstances to compel action or inaction on the part of a public officer when there is no other adequate legal remedy.” Ford Motor Co. v. Lawrence

, 279 Ga. 284, 285,

612 S.E. 2d 301 ( 2005) (citation omitted)

. Here, mandamus relief was appropriate because no other remedy, such as damages, could adequately compensate Starship for the wrongful denial of a business license and its consequent inability to open its book store

. The extraordinary nature of mandamus does not necessarily bar incidental damages for past harm, however. Georgia courts have allowed plaintiffs to recover damages for past harm as well as relief to prevent future harm, such as an injunction or wri t of mandamus. See

, e.g.
, Georgia Dep t . of Transp. v. Edwards

, 267 Ga. 733, 738, 482 S.E.2d 260, 265 (Ga. 1997) (affirming injunction requiring the Department of Transportation to remove a turn lane improperly constructed on plaintiff’s property as well a s damages to compensate the plaintiff for the temporary taking of his property, stating, “Recovery of damages for the temporary taking as well as an injunction requiring return of the property did not, as DOT suggest s, constitute a double recovery ”). Geor gia courts will not allow double

recovery. See

, e.g.
, Rabun C nty

. v. Mountain Creek Estates, L.L.C.

, 280 Ga. 855, 857

– 59, 632 S.E.2d 140 ( 2006) (reversing award of damages for inverse condemnation because plaintiff had not suffered any diminished utility or functionality of property that would constitute a viable claim; the cou nty thus had sovereign immunity, and mandamus was therefore the proper (and sole) remedy). In this case, damages to compensate Starship for the delay in opening its

book store combine d wit h a writ of mandamus to compel issuance of the business license would not constitute double recovery; it would merely provide relief for Starship’s past and future

harm. Case: 11-11287 Date Filed: 02/14/2013 Page: 21 of 2222 

### See OCGA § 9

- 12

- 40. Accordingly, the District Court did not err in granting the

C ounty’s m otion to d ismiss Counts 1, 3, 4, 5, and 7

.

IV

.

For the foregoing reasons, the judgment of the District Court is

AFFIRMED

Case: 11-11287 Date Filed: 02/14/2013 Page: 22 of 22