*

Honorable James L. Oakes, Senior U.S. Circuit Judge for the

Second Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-2077.

AQUATHERM INDUSTRIES, INC., a foreign corporation, PlaintiffAppellant,

v.

FLORIDA POWER & LIGHT COMPANY, Defendant-Appellee.

June 11, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 92-1047-Civ-Orl-22), Anne C. Conway,

Judge.

Before HATCHETT and BARKETT, Circuit Judges, and OAKES*

, Senior

Circuit Judge.

OAKES, Senior Circuit Judge:

Appellant Aquatherm Industries, Inc. ("Aquatherm") appeals

from a judgment entered on December 9, 1994, by the United States

District Court for the Middle District of Florida, Anne C. Conway,

Judge, dismissing Aquatherm's federal antitrust and Lanham Act

claims against appellee Florida Power & Light Company ("FPL"). On

appeal, Aquatherm argues that the district court erred in

concluding that res judicata barred Aquatherm's claims under

Florida preclusion law. While we agree with the district court

that Aquatherm's Lanham Act claims were barred, we find that res

judicata did not preclude Aquatherm's pursuit of its federal

antitrust claims. We therefore affirm in part, reverse in part,

and remand.

BACKGROUND
Aquatherm is a manufacturer of solar-powered heating systems

for swimming pools. FPL is a regulated utility that sells

electricity in an area of Florida containing more than 250,000

in-ground swimming pools. The underlying dispute in this case

involves FPL's statements to its customers regarding electric pool

heat pumps and solar pool heaters, and Aquatherm's contention that

these statements have unfairly advantaged the market for pool

heaters reliant on electricity.

Aquatherm and FPL have expended a great deal of energy on

their journey to this court. Aquatherm commenced its suit in 1991

by filing state antitrust claims in Florida state court; it later

amended its complaint to include a federal claim for unfair

competition under the Lanham Act, 15 U.S.C. 1125(a) (1994). FPL

then removed the action to the United States District Court for the

Southern District of Florida, at which point Aquatherm voluntarily

withdrew its Lanham Act claim. The District Court consequently

remanded the action to state court.

After remand, Aquatherm again amended its complaint to include

state law claims of trade libel and product disparagement. FPL

moved for dismissal and the state court dismissed all of

Aquatherm's claims with prejudice in November 1992. The state

court's decision was affirmed by a Florida appellate court in March

1994.

Prior to dismissal of the state action, Aquatherm filed a

federal action in the United States District Court for the Middle

District of Florida in November 1992. The complaint alleged

federal antitrust violations under the Sherman Act, 15 U.S.C. §§ 1
and 2 (1994), and reasserted Aquatherm's Lanham Act claim. After

Aquatherm amended this complaint to add antitrust claims under the

Clayton Act, 15 U.S.C. § 15 (1994), FPL moved for dismissal. The

district court stayed the action pending resolution of the state

court appeal.

When the Florida appellate court affirmed the dismissal of

Aquatherm's claims, FPL renewed its motion to dismiss in the

federal district court on the basis of res judicata and failure to

state any colorable claim. In December 1994, the district court

granted FPL's motion to dismiss on the ground that res judicata

barred Aquatherm's antitrust and Lanham Act claims.

In this appeal, Aquatherm contends that the district court

erred in its construction and application of res judicata

principles in several ways: (1) by misapplying United States

Supreme Court precedent to reach the conclusion that prior

resolution of Aquatherm's state antitrust claims barred its later

federal antitrust claims; (2) by misinterpreting Florida

preclusion law to find that res judicata bars a subsequent

antitrust claim when an earlier court lacked subject matter

jurisdiction over the original antitrust claim; (3) by applying

only two of the four elements required for res judicata under

Florida law to hold that Aquatherm's Lanham Act claim was barred;

and (4) by ignoring the "manifest injustice" exception to res

judicata. We agree with Aquatherm that the district court erred in

its analysis of Aquatherm's antitrust claims under res judicata

principles. We therefore reverse the dismissal of the antitrust

claims and remand for further proceedings. Because we find that
 1

As noted by the Supreme Court, the terminology used to

discuss the preclusive effects of earlier litigation is somewhat

confusing because res judicata is often used to refer both to

claim preclusion and to issue preclusion. Migra v. Warren City

Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894

n. 1, 79 L.Ed.2d 56 (1984). Here, we adopt for the purposes of

continuity the district court's use of the term "res judicata" as

a synonym for "claim preclusion," which refers to "the effect of

a judgment in foreclosing litigation of a matter that has never

been litigated, because of a determination that it should have

been advanced in an earlier suit." Id. We are not confronted

with any question of issue preclusion, also known as collateral

estoppel, in this case. 

the district court properly dismissed Aquatherm's Lanham Act claim,

we affirm that portion of the district court's decision.

DISCUSSION

 The application of res judicata principles to Aquatherm's

claims constitutes a pure question of law that we review de novo.

Meshulam v. General Motors Corp., 995 F.2d 192, 194 (11th

Cir.1993); Israel Discount Bank Ltd. v. Entin, 951 F.2d 311, 314

(11th Cir.1992). We therefore must assess whether Aquatherm can

prove any set of facts entitling it to relief on its antitrust and

Lanham Act claims. St. Joseph's Hosp., Inc. v. Hospital Corp. of

America, 795 F.2d 948, 953 (11th Cir.1986). Because Aquatherm's

two sets of claims raise discrete issues under the doctrine of res

judicata,1

 we address them separately.

I. Antitrust Claims

 This case presents the question whether a federal district

court may give a Florida court judgment preclusive effect in a

federal action brought under antitrust laws that are within the

exclusive jurisdiction of the federal courts and therefore could

not have been raised in the state court proceeding due to lack of
 2

Exclusive federal jurisdiction is provided by statute for

Sherman Act claims, 15 U.S.C. § 4 (1994), and Clayton Act claims,

15 U.S.C. § 15 (1994). See Freeman v. Bee Machine Co., Inc., 319

U.S. 448, 451, 63 S.Ct. 1146, 1147-48, 87 L.Ed. 1509 (1943),

Hayes v. Solomon, 597 F.2d 958, 984 (5th Cir.1979), cert. denied,

444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). 

subject matter jurisdiction.2 While this issue appears to be one

of first impression in this circuit, we are not without guidance:

the Supreme Court has laid out the approach for determining whether

a prior state court judgment may bar a later federal antitrust suit

in Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S.

373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); see also Matsushita

Electric Industrial Co., Ltd. v. Epstein, --- U.S. ----, ----, 116

S.Ct. 873, 878, 134 L.Ed.2d 6 (1996) ("Marrese provides the

analytical framework for deciding whether the [state] court's

judgment precludes this exclusively federal action.").

In Marrese, the Court reversed a lower court ruling that held

that, as a matter of federal law, res judicata barred federal

antitrust claims in a federal suit brought after an Illinois state

court judgment. Balancing the exclusivity of federal court

jurisdiction over federal antitrust claims with the full faith and

credit given state court proceedings pursuant to 28 U.S.C. § 1738,

the Court outlined a two-step analysis for federal courts to apply

in cases such as the one before us.

Marrese directs a court "to look first to state preclusion

law in determining the preclusive effects of a state court

judgment." 470 U.S. at 381, 105 S.Ct. at 1332. If state

preclusion law indicates that res judicata should bar a claim in a

subsequent federal suit, a court must then evaluate whether to
permit the claim nevertheless as an exception to the full faith and

credit requirements of § 1738. Id. at 383, 105 S.Ct. at 1333. The

Court noted that:

With respect to matters that were not decided in the state

proceedings, ... claim preclusion generally does not apply

where "[t]he plaintiff was unable to rely on a certain theory

of the case or seek a certain remedy because of the

limitations of the subject matter jurisdiction of the

courts...." Restatement (Second) of Judgments § 26(1)(c)

(1982). If state preclusion law includes this requirement of

prior jurisdictional competency, which is generally true, a

state judgment will not have claim preclusive effect on a

cause of action within the exclusive jurisdiction of the

federal courts.

Id. at 382, 105 S.Ct. at 1333.

Under Marrese, therefore, we must determine whether Florida

law would give preclusive effect to a judgment by a Florida court

that lacked subject matter jurisdiction over the original claims.

Id. at 386, 105 S.Ct. at 1334-35. If, as Marrese recognizes is

usually the case, Florida preclusion law requires that the state

court have subject matter jurisdiction for res judicata to apply,

then Aquatherm's federal antitrust claims cannot be barred.

 It is well-established that the general rule against

splitting causes of action does not apply when suit is brought in

a court that does not have jurisdiction over all of a plaintiff's

claims. See Restatement of Judgments (Second) § 25 cmt. e (1982)

("If ... the court in the first action would clearly not have had

jurisdiction to entertain the omitted theory or ground ... then a

second action in a competent court presenting the omitted theory or

ground should be held not precluded."); 18 Charles A. Wright,

Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure:

Jurisdiction § 4470 (1981) ("On balance, it seems better to reject
claim preclusion" when jurisdiction is exclusively federal); see

also Hayes v. Solomon, 597 F.2d 958, 984 (5th Cir.1979) (holding

that "[t]he principle of res judicata which prohibits splitting a

cause of action "applies only to claims capable of recovery in the

first action.' " (citations omitted)), cert. denied, 444 U.S.

1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980).

From a review of Florida law, it appears that Florida does

follow this general rule requiring subject matter jurisdiction over

claims in the original action in order for res judicata to act as

a bar to those claims in a later action. As stated in Florida

Jurisprudence 2d:

The doctrine of res judicata applies to the judgments or

decrees of courts of competent jurisdiction....

32 Fla.Jur.2d Judgments and Decrees § 130 (1994) (emphasis added).

In order for a judgment or decree to operate as a bar, it must

be rendered by a court having jurisdiction over the parties

and subject matter.

33 id. at § 177.

Case law also supports the conclusion that Florida does not

permit preclusion unless the prior court had jurisdiction over the

claim. See, e.g., Albrecht v. State, 444 So.2d 8, 11 (Fla.1984)

("The general principle behind the doctrine of res judicata is that

a final judgment by a court of competent jurisdiction is

absolute...."); United Bhd. of Carpenters and Joiners v. Graves

Inv. Co., 15 So.2d 196, 197 (Fla.1943) ("If the court failed to

acquire jurisdiction of the subject matter ... [there is] no right

to rely on the validity of the decree....").

 It is not surprising that neither party can offer, nor can we

find, any direct statement made by the Florida courts on the
particular problem presented here. As noted in Marrese, "a state

court will not have occasion to address the specific question

whether a state judgment has ... claim preclusive effect in a later

action that can be brought only in federal court," 470 U.S. at 381-

82, 105 S.Ct. at 1332, because the state court will never obtain

jurisdiction over such an action. Given the assumption of

competent jurisdiction reflected in Florida's approach to res

judicata, as well as the absence of any indication that Florida

does not follow the usual rule, we find that Florida's preclusion

laws do not permit a prior state court judgment to act as a bar to

claims over which the state court did not have subject matter

jurisdiction. Therefore, Aquatherm's antitrust claims cannot be

barred by res judicata in its federal action.

The district court did not engage in the above analysis,

concluding instead that Aquatherm's state antitrust claims, which

of course were litigated in a court of competent jurisdiction

below, barred any federal claim against the same defendant arising

from the same facts. The district court also found that Aquatherm,

once removed to federal court, was required to raise its federal

antitrust claims in that forum. We believe both these holdings

were in error.

First, Marrese directly rejected the proposition that

asserting state antitrust claims can eliminate the right to bring

federal antitrust claims in a subsequent federal action. The

Seventh Circuit plurality opinion in Marrese had held:

[A] state court judgment bars the subsequent filing of a

federal antitrust claim if the plaintiff could have brought a

state antitrust claim under a state statute "materially

identical" to the Sherman Act.
Marrese, 470 U.S. at 377, 105 S.Ct. at 1330. In reversing the

Seventh Circuit, the Supreme Court stated clearly that:

We ... reject a judicially created exception to § 1738 that

effectively holds as a matter of federal law that a plaintiff

can bring state law claims initially in state court only at

the cost of forgoing subsequent federal antitrust claims.

Id. at 386, 105 S.Ct. at 1335; see also Eichman v. Fotomat Corp.,

759 F.2d 1434, 1437 (9th Cir.1985), amended on other grounds, 880

F.2d 149 (9th Cir.1989). Marrese therefore repudiates the district

court's conclusion that Aquatherm's state antitrust claims served

as its sole opportunity to present an antitrust complaint.

 Second, there is no authority for the district court's

proposition that Aquatherm was required to assert its federal

claims when it found itself in federal court by virtue of removal.

The district court rested its holding on our decision in Olmstead

v. Amoco Oil Co., 725 F.2d 627 (11th Cir.1984), where we found that

a state court plaintiff who failed to transfer his suit to another

court of the same state in order to escape monetary limits on

jurisdiction was barred from bringing a second state claim. The

district court read Olmstead to mean that whenever there is an

opportunity to avoid jurisdictional constraints, a plaintiff must

avail itself of them. While this reading may be accurate when

different divisions of a state's courts are involved, as in

Olmstead, it does not apply when claims are raised first in state

and then in federal court. As stated in Marrese:

The rule that the judgment of a court of limited jurisdiction

concludes the entire claim assumes that the plaintiff might

have commenced his action in a court in the same system of

courts that was competent to give full relief. See

Restatement (Second) of Judgments § 24, cmt. g (1982).

470 U.S. at 383 n. 3, 105 S.Ct. at 1333 n. 3. Here, Aquatherm
could not have received full relief on its claims in state court,

and it chose not to commence its action in federal court. The

district court's broad reading of Olmstead is therefore in error.

Marrese recognizes that our "parallel systems of state and

federal courts" raise concerns of comity in the application of res

judicata. Id. at 385, 105 S.Ct. at 1334. In analyzing Aquatherm's

antitrust claims without regard for the effect of subject matter

jurisdiction, the district court overlooked these concerns.

Because the district court failed to apply the preclusion analysis

set forth in Marrese and instead based its dismissal of Aquatherm's

antitrust claims on erroneous conclusions of law, we reverse its

decision as to the antitrust claims.

II. Lanham Act Claims

 Aquatherm's Lanham Act claim differs from its antitrust

claims in a crucial respect: Federal courts do not have exclusive

jurisdiction over an action brought under the Lanham Act. 28

U.S.C. § 1338(a) (1994); 15 U.S.C. § 1121 (1994). Therefore,

Aquatherm could have litigated its Lanham Act claim while in state

court, but chose not to do so. The concurrent jurisdiction shared

by the state and federal courts over the Lanham Act requires us to

analyze res judicata under the standard set forth in Migra v.

Warren City School Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892,

79 L.Ed.2d 56 (1984).

 In Migra, the Supreme Court held that when a federal cause of

action can be initially litigated in either state or federal court,

a federal court must look to the preclusion law of the state in

which it sits to determine the res judicata effect of a prior
judgment from a state court of competent jurisdiction. Id. at 85,

104 S.Ct. at 898. The Court rejected the argument that a plaintiff

should not be precluded from suit in federal court when its federal

claim could have been litigated in a prior state court proceeding,

stating that a plaintiff is not:

guarantee[d] ... a right to proceed to judgment in state court

on [its] state claims and then turn to federal court for

adjudication of [its] federal claims.

Id. Instead, federal courts must give state court judgments full

faith and credit under 28 U.S.C. § 1738 and apply the state's

preclusion law. Id. at 84, 104 S.Ct. at 897-98; Stockton v.

Lansiquot, 838 F.2d 1545 (11th Cir.) (per curiam), cert. denied,

488 U.S. 891, 109 S.Ct. 225, 102 L.Ed.2d 216 (1988).

 Under Florida law, res judicata bars a second suit when a

court of competent jurisdiction has entered final judgment in an

earlier suit and the following four conditions are met:

identity of the thing sued for; identity of the cause of

action; identity of the parties; [and] identity of the

quality in the person for or against whom the claim is made.

Albrecht v. State, 444 So.2d 8, 12 (Fla.1984). Here, the Florida

court had jurisdiction over Aquatherm's Lanham Act claim and its

dismissal with prejudice of Aquatherm's state court action served

as a final judgment. See Crews v. Dobson, 177 So.2d 202, 205

(Fla.1965). There is also no doubt that the same parties were

acting in the same capacity in both actions, thus satisfying

Albrecht's third and fourth conditions.

Aquatherm argues, however, that its Lanham Act claim in

federal court involved both a different cause of action and a

different form of requested relief than the claims for trade libel
 3

Illustration 11 reads:

A sues B on a common law basis in a state court for

unfair competition. After trial judgment is entered for the

defendant. A then attempts to bring an action against B in

federal court upon the same behavior, now claiming

infringement of A's federally protected trademark. The

action is barred. The claimed violation of federal right

could have been urged as a ground of liability in the state

court action, as state courts have concurrent jurisdiction

with the federal courts to enforce that right. 

and product disparagement it made in state court, and that

therefore res judicata should not bar the litigation of the Lanham

Act claim in federal court. We agree with neither of these

contentions.

Albrecht provides that "[t]he determining factor in deciding

whether the cause of action is the same is whether the facts or

evidence necessary to maintain the suit are the same in both

actions." 444 So.2d at 12. Here, Aquatherm's state claims for

trade libel and product disparagement relied on the same essential

facts, namely, the alleged statements made by FPL to its customers,

as its later Lanham Act claim. Indeed, the state claims appear to

be simply a refashioning of the Lanham Act claim that Aquatherm

voluntarily dropped from its original complaint so that it could

return to state court after being removed to federal court by FPL.

To treat such claims as non-identical would ignore the teaching of

the Restatement (Second) of Judgments § 25, cmt. e., ill. 11, which

offers almost the exact situation presented here as an example of

how res judicata bars a federal claim that could have been raised

in an earlier state court suit.3

 We see no reason to disregard

such wisdom.

 Aquatherm also can find no purchase with its argument that
the compensatory damages it sought in state court were a different

form of relief from the treble damages and profits it requested in

federal court. Aquatherm relies exclusively on Sivilla v. State

Farm Mut. Auto. Ins. Co., 614 So.2d 553 (Fla.3d Dist.Ct.App.1993)

(per curiam) for this contention, ignoring that Sivilla involved

two separate claims for breach of contract and bad faith that

Florida law required be split for trial. Here, Aquatherm

voluntarily chose not to urge a federal ground for recovery for the

same conduct that served as the foundation of its state law claims.

When the plaintiff itself splits the cause of action to suit its

own purposes, we find that damages are damages, regardless of

amount, for the purposes of res judicata. See Amey, Inc. v. Gulf

Abstract & Title, Inc., 758 F.2d 1486, 1509 (11th Cir.1985)

(finding that identity of thing sued for existed when plaintiff

sued for $2,500 in damages in first suit and $35,000 in second

suit), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912

(1986).

 Florida law is clear that "[t]he rule against splitting

causes of action makes it incumbent upon plaintiffs to raise all

available claims involving the same circumstances in one action."

Department of Agric. and Consumer Serv. v. Mid-Florida Growers,

Inc., 570 So.2d 892, 901 (Fla.1990). Aquatherm did not abide by

this rule, but elected instead to bring only its state law claims

in the initial state court litigation. We therefore agree with the

district court that Aquatherm's Lanham Act claim is barred by res
 4

Aquatherm also contends that to allow res judicata to bar

its Lanham Act claim would work a "manifest injustice." After

reviewing the argument for this contention, we deem it wholly

without merit. 

judicata.4

CONCLUSION

For the foregoing reasons, we REVERSE the dismissal of

Aquatherm's antitrust claims and REMAND to the district court for

further proceedings. We AFFIRM the dismissal of the Lanham Act

claim.