Res Judicata Bars Later Federal RICO and Related Claims After Alabama Construction-Fraud Trial; Rule 15(d) Supplement Remains Discretionary and Must Be Sufficiently Related

Case: Darin Whitchurch v. Michael Danny Mulkey
Court: United States Court of Appeals for the Eleventh Circuit (Non-Publication)
Date: 2026-09-08
Disposition: Affirmed (dismissal on res judicata; denial of leave to file supplemental complaint)

1. Introduction

This appeal grew out of a soured cost-plus residential construction relationship in Cedar Bluff, Alabama. Darin and Julie Whitchurch (pro se) hired Michael Daniel Mulkey to build a house and later alleged overbilling through misrepresented costs of materials, labor, and services. Their dispute generated parallel state and federal litigation.

In state court (Alabama), the Whitchurches sued Mulkey and Mulkey, Inc. for negligence, wantonness, fraud, conversion, and initially also asserted a federal RICO claim and an Alabama Deceptive Trade Practices Act claim. They attempted to add Mulkey’s family members (Robin, Sarah, Daniel) but were denied. After pretrial dismissals and a jury trial, judgment entered for Mulkey and Mulkey, Inc.; post-trial motions were denied by operation of law under Alabama Rule of Civil Procedure 59.1 (as recognized in Ex Parte Hornsby).

While the state case was pending, the Whitchurches filed a federal action in the Northern District of Alabama against Mulkey, the family members, and related entities, asserting RICO and state-law theories grounded in the same alleged “construction overbilling scheme.” The federal case was stayed pending the state action and later resumed after the state judgment became final. The core questions on appeal were:

  • Whether Alabama res judicata barred the federal first amended complaint following the state-court final judgment.
  • Whether the district court abused its discretion by denying leave to file a “Second Amended and Supplemental Complaint” adding new trial-misconduct allegations and new attorney defendants under Rule 15(d).

2. Summary of the Opinion

The Eleventh Circuit affirmed in full. It held:

  • Res judicata (Alabama claim preclusion) barred all claims in the federal first amended complaint because the state action resulted in a final judgment on the merits by a court of competent jurisdiction, involved parties in privity (including nonparties under Alabama’s expansive privity standard), and presented the same causes of action (same nucleus of operative facts / substantially same evidence).
  • The district court did not commit reversible error by considering state-court filings at the motion-to-dismiss stage in resolving res judicata.
  • The district court did not abuse its discretion in denying leave to file the proposed supplemental pleading under Rule 15(d), because the proposed supplement introduced allegations about what occurred during the state trial—insufficiently related to the operative facts of the construction-overbilling claims—and could be pursued, if at all, in a new lawsuit.
  • Griffin v. County School Board of Prince Edward County did not compel allowance of supplementation; it merely approved a district court’s discretion to allow a supplement in materially different circumstances.

3. Analysis

3.1. Precedents Cited

A. Standards of review and pro se construction

  • Milner v. Baptist Health Montgomery, 132 F.4th 1354 (11th Cir. 2025): Established de novo review of dismissal based on res judicata. The panel used Milner to frame its independent review of the preclusion ruling.
  • Rodemaker v. City of Valdosta Bd. of Educ., 110 F.4th 1318 (11th Cir. 2024): Clear-error review of factual findings on privity for res judicata. The panel relied on Rodemaker to defer to the district court’s privity determinations absent “definite and firm conviction” of mistake.
  • Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317 (11th Cir. 2007): Defined the “highly deferential” clear-error standard and when a factual finding is clearly erroneous. The panel used this to explain why the privity findings would not be disturbed.
  • Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir. 2007) and Chang v. JPMorgan Chase Bank, N.A., 845 F.3d 1087 (11th Cir. 2017): Govern review of denial of leave to amend (abuse of discretion) and futility determinations (de novo). These cases provide the general appellate posture for Rule 15 decisions.
  • Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008): Cited for abuse-of-discretion review of denial of leave to supplement and for the principle that a district court may deny supplementation that raises an “entirely new theory of recovery” when the plaintiff can bring new claims in another lawsuit. This precedent strongly shaped the panel’s Rule 15(d) analysis.
  • Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292 (11th Cir. 2011): Provided the abuse-of-discretion definition (clear error of judgment or wrong legal standard), cabining appellate second-guessing of the district court’s Rule 15(d) decision.
  • Campbell v. Air Jam. Ltd., 760 F.3d 1165 (11th Cir. 2014): Reiterated liberal construction of pro se filings, signaling the court’s awareness of the Whitchurches’ pro se status while still enforcing preclusion and procedural rules.

B. Alabama res judicata framework and state-judgment preclusive effect

  • Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d 914 (Ala. 2007): Used for the core proposition that res judicata bars relitigation of matters that were or could have been adjudicated. It anchors the substantive scope of claim preclusion under Alabama law.
  • Kizzire v. Baptist Health Sys., 441 F.3d 1306 (11th Cir. 2006): Provided the four-part Alabama test (merits judgment; competent jurisdiction; substantial identity of parties; same cause of action). The panel essentially adopted the district court’s element-by-element application of Kizzire.
  • Cmty. State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011): Required federal courts to apply the rendering state’s preclusion law to state-court judgments. This choice-of-law step was crucial; it foreclosed federal common-law variations in preclusion and required Alabama’s expansive privity rules.
  • Sellers v. Nationwide Mut. Fire Ins. Co., 968 F.3d 1267 (11th Cir. 2020): Emphasized Alabama’s “expansive definition of privity,” including “identity of interest in the subject matter of litigation.” This supported preclusion against nonparties (family members and a related LLC) alleged to be employees/alter egos.

C. Procedure: res judicata on a motion to dismiss

  • Starship Enters. of Atlanta, Inc. v. Coweta Cnty., 708 F.3d 1243 (11th Cir. 2013): Cited to reject the argument that considering state-court records for res judicata at the motion-to-dismiss stage improperly converts the motion into summary judgment. This legitimizes judicial consideration of public records/attached state-court materials when adjudicating preclusion early.

D. Rule 15(d) supplementation and discretion; limits of Griffin

  • MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co., 950 F.3d 764 (11th Cir. 2020): Interpreted Rule 15(d)’s “may” as permissive, reinforcing that supplementation is discretionary, not mandatory.
  • Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964) (and background reference to Brown v. Board of Education, 347 U.S. 483 (1954)): Invoked by the Whitchurches as allegedly “directly on point.” The panel distinguished Griffin as a case approving supplementation to address ongoing circumvention of a prior federal mandate in the same litigation context—far afield from a proposed supplement introducing new defendants (attorneys/law firms) and new trial-misconduct theories after the operative construction dispute had already been adjudicated in state court.

3.2. Legal Reasoning

A. The preclusion analysis was driven by Alabama law and finality

Because the prior judgment was entered by an Alabama court, the Eleventh Circuit applied Alabama preclusion law as required by Cmty. State Bank v. Strong. Under Kizzire v. Baptist Health Sys., all four elements were satisfied:

  • Final judgment on the merits: The panel rejected the argument that no final judgment existed. The state court “enter[ed] a judgment in favor” of defendants after the jury verdict, while noting other claims were previously dismissed. The Whitchurches did not appeal, and their post-trial motions were denied by operation of law.
  • Competent jurisdiction: The Whitchurches conceded the state court’s competence.
  • Substantial identity of parties via privity: Although certain federal defendants were absent from the state caption, Alabama privity is “expansive” (Sellers v. Nationwide Mut. Fire Ins. Co.). The district court’s privity findings (employees/officers and alleged alter-ego entity relationships) were reviewed for clear error (Rodemaker; Morrissette-Brown) and upheld.
  • Same cause of action: The panel endorsed the district court’s “substantially the same evidence” / “same nucleus of operative facts” approach. Even where a RICO claim was voluntarily dismissed in state court, the federal RICO theory was still anchored in the same alleged overbilling scheme and overlapped factually with claims tried to verdict (e.g., conversion, fraud, negligence).

The doctrinal punchline followed Chapman Nursing Home, Inc. v. McDonald: once the four elements are met, claim preclusion bars not only what was actually litigated, but also what could have been litigated in the first action.

B. Res judicata can be resolved at the pleading stage using state-court records

The Whitchurches argued that the district court improperly “converted” the motion to dismiss by considering state-court materials. The Eleventh Circuit rejected that position, citing Starship Enters. of Atlanta, Inc. v. Coweta Cnty. to confirm that preclusion may be adjudicated on a motion to dismiss where the necessary state-court records are properly presented. This reflects a pragmatic view: res judicata is meant to spare litigants and courts from redundant proceedings, and early resolution is consistent with that purpose.

C. Rule 15(d) supplementation is discretionary and must relate sensibly to the existing case

The proposed “Second Amended and Supplemental Complaint” attempted to graft onto the construction-overbilling suit an additional narrative: alleged fraud on the state court during trial, with new RICO predicate acts (obstruction of justice, witness tampering, destruction/fabrication of evidence) and a new “civil rights violations” claim against both the Mulkey parties and new attorney/law-firm defendants.

The panel’s reasoning rested on several reinforcing propositions:

  • Discretion, not entitlement: Rule 15(d) says the court may permit supplementation; MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co. underscores the permissive nature of the rule.
  • Case coherence and procedural posture matter: Once the district court concluded the first amended complaint was entirely barred by res judicata, it was within its discretion to refuse to expand the case into a new dispute about alleged trial misconduct in a different forum (state court).
  • New-theory supplements may be denied when a separate suit is available: Schwarz v. City of Treasure Island supported denial where supplementation would raise an “entirely new theory of recovery,” especially where the plaintiff can bring the new claims elsewhere.
  • Griffin is permission, not compulsion: The panel explained that Griffin v. County School Board of Prince Edward County held only that supplementation was not an abuse of discretion in circumstances involving persistent evasion of an existing federal mandate in the same litigation arc—not that supplementation is required whenever post-filing events occur.

3.3. Impact

Although “NOT FOR PUBLICATION” limits precedential force, the decision is instructive for litigants and district courts confronting parallel state/federal proceedings:

  • Parallel-case strategy risk: Plaintiffs who litigate (or could litigate) a factual dispute to final judgment in Alabama state court will likely be precluded from reframing the same factual nucleus as federal RICO or re-labeled state claims in federal court—even if some claims were dropped in state court.
  • Nonparty defendants may not avoid preclusion: Alabama’s broad privity doctrine can extend claim preclusion to closely aligned nonparties (employees, officers, alter egos), reducing incentives to “re-package” the same dispute by adding affiliated parties in a second forum.
  • Early preclusion adjudication: The court’s reliance on Starship Enters. of Atlanta, Inc. v. Coweta Cnty. reinforces that defendants can press res judicata at the Rule 12 stage, and courts can consult state-court filings without necessarily converting to summary judgment.
  • Supplements are not a vehicle to reboot a barred case: Rule 15(d) cannot be used as a matter of right to turn a case—already extinguished by res judicata—into a new lawsuit about later events. The remedy, if any, is typically a separate action, subject to its own defenses (including absolute or qualified privileges, immunity doctrines, litigation privilege, or other preclusion principles).

4. Complex Concepts Simplified

  • Res judicata (claim preclusion): If you sue and a court enters a final judgment, you generally cannot sue again over the same underlying transaction/events. It covers not only what you argued, but also what you could have argued in the first case.
  • Privity: Even if someone was not named in the first case, they may be treated as effectively the “same party” for preclusion if their legal interests are sufficiently aligned with a party from the first case. Alabama applies this concept broadly.
  • “Same cause of action” / “same nucleus of operative facts”: Courts look past labels (RICO, fraud, unjust enrichment) to the factual core. If the proof and events substantially overlap, it is usually the same cause of action for res judicata.
  • Rule 15(a) vs. Rule 15(d): Rule 15(a) concerns amending what you already pleaded; Rule 15(d) concerns adding facts/claims based on events that happened after the original pleading. In both contexts (especially after the first amendment), permission is typically needed, and courts have discretion.
  • Denied “by operation of law” (Alabama Rule 59.1): In Alabama, if a trial court does not rule on certain post-judgment motions within 90 days, they are automatically denied—finality can occur without a written order.

5. Conclusion

The Eleventh Circuit’s decision underscores two practical rules in Alabama-linked federal litigation: (1) once a state court enters final judgment on a construction-dispute factual nucleus, res judicata will likely bar later federal RICO and repackaged state-law claims against both the original defendants and closely aligned affiliates; and (2) Rule 15(d) supplementation is discretionary, and district courts may deny supplements that would transform a barred case into a new lawsuit about later events—particularly where those new allegations can be pursued, if at all, in a separate action.

Note: The opinion is designated “NOT FOR PUBLICATION,” so it is not binding precedent, but it reflects the Eleventh Circuit’s application of established Alabama preclusion principles and Rule 15 discretion to a common parallel-litigation scenario.