*

Honorable Leonard I. Garth, Senior U.S. Circuit Judge for

the Third Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-2257.

Gertrude LINDLEY, Julia Dolce, F.J. Burr, Bernadeen L. Burr, Eve

Montaldo, Mary Riedel, Paul Riedel, Lorence Tierney, William

Tierney, Eva Harm, Margueritte Mitchell Mann, Lassie Mayhue Meyer,

Ralph Meyer, Eubert F. Taffert, Irene Elbert, Gerald Purdy, Doris

Purdy, June Knistoft, Edward Knistoft, Msgr. Robichaud, Personal

Representative of the Estate of Dora Wade; Janice Oleson, Personal

Representative of the estate of Edna Bromhed; George Olmsted,

Personal Representative of the estate of Thelma Olmsted,

Plaintiffs-Appellants,

v.

Henry CISNEROS and United States of America Department of Housing

and Urban Development, Defendants-Appellees.

Jan. 25, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 89-195-CIV-T-15B), Henry Lee Adams, Jr.,

Judge.

Before TJOFLAT, Chief Judge, and DYER and GARTH *

, Senior Circuit

Judges.

PER CURIAM:

Appellants are former tenants in a multi-story apartment

building known as the Mandalay Shores Apartments located in

Clearwater, Florida. At the time appellants were tenants, the

apartment building was owned by the United States Department of

Housing and Urban Development ("HUD"); each appellant occupied his

or her apartment under a lease with HUD. In this action appellants

seek to recover money damages under both Florida landlord-tenant

law and their leases for HUD's failure, despite their pleas,

properly to maintain the apartment building and their respective
units.

Tenants of the same apartment complex similarly brought suit

in Mann v. Pierce, 803 F.2d 1552 (11th Cir.1986), also seeking to

recover damages under Florida landlord-tenant law and their leases.

They claimed that, while HUD was their landlord, the apartment

building was "infested with a wide array of vermin and that the

ceiling tiles were crumbling and spewing asbestos whenever the roof

leaked or the air conditioning was operated. [In addition, they

claimed that] HUD failed to make reasonable provisions for running

water and failed to maintain the project's elevators, plumbing,

roof and common areas. [They sought] redress, including equitable

restitution of rent paid while HUD ... maintained the project in

substandard conditions." Id. at 1554.

While Mann was pending in the district court, the Mandalay

Shores Cooperative Housing Association (the "Association"), which

had been a tenant in the building, brought suit to obtain the same

relief as the Mann plaintiffs. Its case and Mann were

consolidated. Thereafter, in an effort to obtain in a single

adjudication relief for all of the building's former tenants, the

plaintiffs in the consolidated cases sought class certification

under Federal Rule of Civil Procedure 23. The district judge

presiding over the cases refused to certify a class, however,

because the causes of action of the individual plaintiffs were not

identical; the plaintiffs had separate leases and the facts

underpinning their claims were not likely to be common. Moreover,

HUD and the Secretary opposed the idea of a mass adjudication of

the tenants' claims.
In an effort to have the claims of all of the former tenants

resolved in the consolidated cases, the Association obtained

assignments from the tenants, the appellants here, and then moved

the court for leave to amend its complaint to bring the assigned

claims. HUD and the Secretary opposed the motion, claiming that

the assignments were invalid, and that consequently the Association

could not represent the assignors. The court denied the

Association's motion, concluding that allowing the Association to

proceed as the tenants' representative would not promote the

economic and speedy disposition of the controversy. The

adjudication of appellants' claims would be left to another day.

While the consolidated suit (of the Association and the Mann

plaintiffs) was pending, appellants brought the instant suit.

HUD and the Secretary prevailed in the consolidated case and

then moved for summary judgment in the instant case, contending

that the doctrine of res judicata foreclosed appellants' causes of

action. Appellants opposed the motion. They argued that the

defendants, having urged the court to reject the Association's

effort to litigate appellants' claims in the consolidated cases and

to defer consideration of these claims to another day, should stand

by their word. Common decency, if not fundamental due process,

they claimed, required that they be given their day in court.

The district court, while acknowledging the merits of

appellants' fairness argument, rejected their plea and granted the

defendants summary judgment. We reverse, and direct the court to

reinstate appellants' claims.

Res judicata does not bar a claim unless the parties to both
actions—here, appellants and either the Mann plaintiffs or the

Association (or both)—are identical or are in privity with one

another. See Richardson v. Alabama State Bd. of Educ., 935 F.2d

1240, 1244 (11th Cir.1991). The parties are not identical; nor

are they in privity with one another. HUD and the Secretary argue

that appellants were virtually represented in the prior litigation

by the Association. For a number of years, they point out, the

tenants, including appellants, had voluntarily aligned themselves

with and supported the goals of the Association. That may well be

so, but such an alignment does not alter the fact that appellants'

claims are based on their individual leases, that they assert

discrete breaches on HUD's part, and that they assert separate

injuries. After all, this is why HUD and the Secretary opposed

class certification in Mann, and this is why the district court

denied class certification.

As the district court stated when it rejected the

Association's attempt to litigate appellants' claims as appellants'

assignee: appellants will have their day in court—later. That

time is now. The judgment of the district court is accordingly

VACATED and the case is REMANDED for further proceedings.

SO ORDERED.