[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 20

- 10120 Non

- Argument Calendar

________________________ D.C. Docket No. 2:18

- cv - 01931

- MHH

MANDY POWRZANAS, Plaintiff

- Appellant,

versus JONES UTILITY AND CONTRACTING CO. INC., RICHARD JONES, PATRICIA JONES, Defendants

- Appellees.

________________________ Appeal from the United States District Court for the Northern District of Ala bama

________________________ ( July 27, 2020 ) Before ROSENBAUM , BRANCH, and ANDERSON , Circuit Judges. PER CURIAM:

Case: 20-10120 Date Filed: 07/27/2020 Page: 1 of 72 Mandy Powrzanas appeals the district court’s grant of Jones Utility and Contracting Co., Inc.’s (“Jones Utility”), Richard Jones’s, and Patricia Jones’s ( c ollectively “the Defendants”) motions to dismiss the instant matter (“ Powrzanas
II

”). Powrzanas had unsuccessfully sued Jones Utility before in Powrzanas v

. Jones Utility and Contracting Co., Inc. , No. 2:17

- cv - 975

- GMB (N.D. Ala. Sep t

. 11, 2019) (“ Powrzanas I ”)

. Powrzanas challenges two conclusions of the district
court in the instant matter : (1) that her retaliation claim 1 under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12203(a), was barred by claim preclusion; and (2) her 42 U.S.C. § 1985(2) conspiracy claim s 2 were barred by issue preclusion

. We address each of Powrzanas’s challenges in turn. 3
I. We review an order granting a motion to dismiss de novo , applying the same standards as the district court. Young Apartments, Inc. v. Town of Jupiter, Fla. , 529 F.3d 1027, 1037 (11th Cir. 2008). In the Rule 12(b) context, a court generally may not consider materials outside of the complaint without first converting the motion to dismiss into a motion for summ ary judgment. Day v. Taylor , 400 F.3d

1 Powrzan a s’s ADA retaliation claim alleged that Jones Utility filed a state lawsuit against her in retaliation for her making ADA c omplaints against Jones Utility, her former employer (complaining of disability discrimination and a failure to accommodate). 2 Powrzan a s’s § 1985(2) conspiracy claims alleged that Richard Jones had attempted to intimidate or threaten her by following her car or by pulling out into a street in front of her car when they met on a public street. 3 Other claims asserted by Powrzan a s in the district court are either expressly abandoned on appeal, or are abandoned by failing to fairly raise them i n her appellate briefing.

Case: 20-10120 Date Filed: 07/27/2020 Page: 2 of 73 1272, 1275

- 76 (11th Cir. 2005). A court may consider a document that has been attached to a motion to dismiss, however, if it is central to the plaintiff’s claims and its authenticity has not been challenged. Id. at 1276. Whether res judicata applies is a question of law that we review de novo

. Griswold v. Cty. of Hillsborough , 598 F.3d 1289, 1292 (11th Cir. 2010). Res judicata generally refers to two separate concepts: claim preclusion and issue preclusion. Migra v. Warren City Sch. Dist. Bd. of Educ. , 465 U.S. 75, 77 n.1 (1984). We first address Powrzan a s’s challenge to the district court’s dismissal (claim preclusion) of her ADA retaliation claim, and then address her challenge to the district court’s dismissal (issue preclusion) of her § 1985(2) conspiracy claims.
II. Claim preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has alre ady been litigated and decided. Id. A claim is precluded if (1) there was a final judgment on the merits in the prior case; (2) a court of competent jurisdiction rendered the prior decision; (3) the parties, or individuals in privity with the parties, ar e identical in both cases; and (4) the same cause of action is involved in both cases. Griswold , 598 F.3d at 1292. A judgment dismissing a case with prejudice acts as a judgment on the merits for purposes of claim preclusion. Anthony v. Marion Cty. Ge n. Hosp. , 617 F.2d 1164, 1170 (5th Cir. 1980). On the other hand, a dismissal “without prejudice

Case: 20-10120 Date Filed: 07/27/2020 Page: 3 of 74 is not an adjudication on the merits and thus does not have a res judicata effect.” Hughes v. Lott , 350 F.3d 1157, 1161 (11th Cir. 2003). A dismissal for fa ilure to state a viable claim, either under Rule 12(b)(6) or Rule 41(b), is an adjudication on the merits if the district court did not indicate whether it dismissed the case with or without prejudice. NAACP v. Hunt , 891 F.2d 1555, 1560 (11th Cir. 1990); see also Fed. R. Civ. P. 41(b) (“ U nless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule

— except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19

— operate s as an adjudication on the merits

. ”); Bryant v. Rich , 530 F.3d 1368, 1376 n.12 (11th Cir. 2008) (noting that a court generally decides a 12(b)(6) motion on the merits). The res judicata consequences of a final, unappealed judgment on the merits are not a ltered by the fact that the judgment may have been wrong. Juris v. Inamed Corp. , 685 F.3d 1294, 1335 (11th Cir. 2012). Here, the district court did not err in conclud ing that Powrzanas’s ADA retaliation claim predicated upon Jones Utility’s state lawsuit was barred by claim preclusion. In Powrzanas I , Jones attempted to bring an ADA retaliation claim predicated upon Jones Utility’s state lawsuit in an amended complaint. The Powrzanas I court, in addressing Jones Utility’s motion to dismiss that amended complaint, reached the merits of that retaliation claim , and held that Powr z an a s’s allegations failed to state a claim upon which relief may be granted

. Thus, the

Case: 20-10120 Date Filed: 07/27/2020 Page: 4 of 75 Powr z an a s I court granted Jones Utility’s motion to dismiss and struck the amended complaint. Because the Powrzanas I court’s order dismissing the amended complaint did not specify it was doing so without prejudice, that dismissal was an adjudication on the merits. Accordingly, we affirm as to this issue and turn to Powrzanas’s challenge to the district court’s finding on issue preclusion.
II I

. Issue preclusion “refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated an d decided.” Migra , 465 U.S. at 77 n.1. Issue preclusion has four elements: (1) the issue at stake must be identical to the one involved in the prior litigation; (2) the issue must have been actually litigated in the prior suit; (3) the determination of t he issue in the prior litigation must have been a critical and necessary part of the judgment in that action; and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier pro ceeding. CSX Transp., Inc. v. Bhd. of Maint. of Way Emps. , 327 F.3d 1309, 1317 (11th Cir. 2003) (quotation marks omitted). To be identical, the issues must have been litigated expressly or by implication in the prior case. See In re Justice Oaks II, Ltd. , 898 F.2d 1544, 1149

- 50 n.3 (11th Cir. 1990). The two cases must involve identical events or transactions; it is not enoug h for events or transactions to be similar in nature and close in time. In re McWhorter , 887 F.2d 1564, 1567

- 68 (11th Cir. 1989). To

Case: 20-10120 Date Filed: 07/27/2020 Page: 5 of 76 distinguish the issues, a party must identify only one materially different fact altering the legal issue in the case. C SX Transp., Inc. , 327 F.3d at 1317

- 18.
“W hen an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined, the issue is actually litigated.” Pleming v. Universal

- Rundle Corp. , 142 F.3d 1354, 1359 (11t h Cir. 1998) (quoting Restatement (Second) of Judgments § 27 cmt. d (1982)). Notably, “the finality requirement is less stringent for issue preclusion than for claim preclusion.” Christo v. Padgett , 223 F.3d 1324, 1339 (11th Cir. 2000). Claim preclusion applies only when a final judgment is entered, but issue preclusion requires only that the adjudication of an issue “be sufficiently firm to be accorded conclusive effect.” See id. at 1339 n.47 (quotation marks omitted). When a judgment addresses only one issue, that issue is a critical and necessary part of the judgment. See Bush v. Balfour Beatty Bah., Ltd. (In re Bush) , 62 F.3d 1319, 1321

- 22 (11th Cir. 1995). Section § 1985(2) prohibits cl ass - based retaliation for testifying in federal courts. 42 U.S.C. § 1985(2); see Chavis v. Clayton Cty. Sch. Dist. , 300 F.3d 1288, 1292

- 93 (11th Cir. 2002) . The ADA makes it unlawful to coerce, intimidate, threaten, or interfere with any individual for a sserting her rights under the ADA. 42 U.S.C. § 12203(b). A court will grant preliminary injunctive relief if the movant demonstrates that: (1) there is a substantial likelihood of success on the

Case: 20-10120 Date Filed: 07/27/2020 Page: 6 of 77 merits of the underlying case, (2) the movant will suffer i rreparable harm in the absence of an injunction, (3) the harm suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction is issued, and (4) an injunction would not disserve the public inter est. Odebrecht
Const r ., Inc. v. S ec’ y, Fl a. Dep’t of Transp. , 715 F.3d 1268, 1273

- 74 (11th Cir. 2013). The district court did not err in finding that Powrzanas’s § 1985(2) claim s

w ere barred by issue preclusion

. The dispositive issue

— whether Richard Jon es engaged in retaliatory conduct when he encountered Powrzanas in traffic

— was identical to the factual issue presented in Powrzanas’s two motions for a restraining order in Powrzanas I , the issue was actually litigated in Powrzanas I through briefs and two evidentiary hearings, the issue was a critical and necessary part of the Powrzanas I court’s orders denying those motions, and Powrzanas had a full and fair opportunity to litigate the issue. Accordingly, we affirm as to this issue and uphold the district court’s grant of dismissal for the Defendants

. AFFIRMED. Case: 20-10120 Date Filed: 07/27/2020 Page: 7 of 7