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Date: 10-03-2017

Case Style:

Givani Depianti v. Jan-Pro Franchising, Inc.

Federal Courthouse - Boston, Massachusetts

Case Number: 16-2256

Judge: Thompson

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Shannon Erika Liss-Riordan and Adelaide H. Pagano

Defendant's Attorney: Jeffrey Mark Rosin

Description: Generation after generation of
parents have passed along a basic adage to their children: if at
first you don't succeed, try, try again. Such advice encouraging
perseverance can serve one well throughout a myriad of life
experiences. But while steadfast determination may, in the
abstract, be worthy of aspiration, the legal field has--as is often
the case--made an exception to this generalized rule.
Plaintiff Giovanni Depianti ("Depianti") appeals from
the district court's grant of summary judgment to Defendant Jan-
Pro Franchising International, Inc. ("Jan-Pro"). The lower
court's ruling rested on principles of res judicata, concluding
that the court was bound by a Georgia court judgment involving the
exact same parties and the exact same issues. Because we agree
that Depianti has already had his bite at the apple and is not
entitled to yet another, we affirm.
Getting Our Factual Bearings
We recite here only a brief synopsis of the factual
background of this dispute, saving our energy, instead, for the
necessary heavy lift that our discussion of this case's procedural
history will require. Jan-Pro is a national company principally
headquartered in Alpharetta, Georgia that organizes commercial
cleaning franchises. Under its particular franchise model, Jan-
Pro contracts with what are known as intermediary "master
franchisees" or "master owners" (regional, third party entities)
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to whom it sells exclusive rights to use the "Jan-Pro" logo, which
is trademarked. As of 2009 (which is the most up-to-date figure
in the record), ninety-one different master owners existed. These
master owners, in turn, sell business plans to "unit franchisees."
In other words, the business model set up by Jan-Pro is twofold,
with (1) Jan-Pro acting as franchisor and the master owner acting
as franchisee, in one instance and (2) the master owner acting as
franchisor to the unit franchisee, in the other.
Jan-Pro and its master owners are separate corporate
entities and each has its own staff. Moreover, master owners may
sell or transfer their individual businesses without approval from
Jan-Pro. Jan-Pro also reserves the right to inspect any premises
serviced by either the master owner or any of the master owner's
franchisees to ensure the Jan-Pro standards are being maintained.
Still, master owners have their own entity names and internal
business structures, and are responsible for their own marketing,
accounting, and general operations.
As for master owners and their unit franchisees, under
the terms of the model franchise agreement, master owners agree to
provide their franchisees with an initial book of business, as
well as start-up equipment and cleaning supplies. Moreover, the
master owner furnishes a training program for its unit franchisees.
Once initial set-up and training is complete, the master owner
agrees to (1) assist in the unit franchisee's customer relations
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(by, for example, providing substitute employees or contractors to
supply services in the event of an emergency impacting the unit
franchisee); (2) provide the unit franchisee with invoicing and
billing services; (3) advance the unit franchisee amounts that
have been billed but not yet collected from customers; and (4)
make available to the unit franchisee any improvement or changes
in services or business methods that are made available to other
franchisees. Additionally, the agreement notes that a unit
franchisee is at all times an independent contractor solely in
business for itself. As such, the unit franchisee may, for
example, hire its own employees and decide what to pay them, as
well as decide whether or not to pursue certain business
One such master owner is Bradley Marketing Enterprises,
Inc. ("BME"), which purchased master franchise rights from Jan-
Pro in 2003 for a region covering parts of Massachusetts. In June
2003, Depianti signed a franchise agreement with BME at the level
of "FP-100" (which is simply shorthand lingo for saying that
Depianti was promised $100,000 in gross annual billings through
his franchise relationship with BME). In order to enter into this
agreement and obtain the unit franchise, Depianti was required to
pay BME $23,400.
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A Whirlwind Procedural Tour
Having given a very short overview of the lay of the
land, we now embark on the more burdensome task of sketching out
the nearly decade long life-cycle of this matter.
A. The District of Massachusetts
On April 18, 2008, Depianti brought suit against Jan-
Pro alleging that his status as a unit franchisee of BME was a
farce and that he was actually a direct employee of Jan-Pro.1 He
further maintained that due to this misclassification, he was
denied certain employment benefits in violation of the
Massachusetts Independent Contractor Law, Mass. Gen. Laws c. 149,
§ 148B ("Section 148B claim"). In particular, Depianti argued
that the alleged misclassification resulted in the following: (1)
unlawful deductions were taken from his pay; (2) he was forced to
pay unnecessary expenses that ordinarily would have been borne by
Jan-Pro (such as thousands of dollars in franchise fees); (3) he
was not guaranteed minimum wage or overtime pay; and (4) he was
ineligible for unemployment and workers' compensation.
1 While we recognize that the original lawsuit in this case
was brought on behalf of a putative class of cleaning workers that
included Depianti, we note that Depianti is the only remaining
plaintiff whose rights are at issue in this appeal. Thus, while
many of the allegations in the complaint were lobbed against Jan-
Pro by the putative class as a whole, our focus falls squarely on
Depianti and our description of the history of this case is framed
as such.
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After discovery closed both sides moved for summary
judgment as to the Section 148B Claim.2 The district court was
then tasked with applying Section 148B's three-prong test to the
undisputed, material facts presented before it. Under that test,
an individual performing a service is considered an employee
(1) the individual is free from control and direction in
connection with the performance of the service, both
under his contract for the performance of service and in
fact; and
(2) the service is performed outside the usual course of
the business of the employer; and,
(3) the individual is customarily engaged in an
independently established trade, occupation, profession
or business of the same nature as that involved in the
service performed.
Mass. Gen. Laws ch. 149, § 148B.3
The district court, however, encountered difficulties in
properly applying the test. It expressed uncertainty as to how
the multi-leveled franchise model employed by Jan-Pro would impact
application of the three prongs. For example, the court noted
that the relevant contract in the litigation was a franchise
2 Jan-Pro also moved for summary judgment on numerous other
claims that are not relevant to deciding this appeal.
3 Given the remedial nature of the statute, the burden falls
on the purported employer to prove all three prongs and,
additionally, because the test is conjunctive, failure to satisfy
any one prong necessarily warrants a finding that the worker in
question--here, Depianti--is an employee. See Somers v. Converged
Access, Inc., 454 Mass. 582, 589-90 (2009).
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agreement between BME and Depianti--not one between Jan-Pro and
Depianti--and that it had found no cases where a defendant was
held liable under Section 148B without the named defendant being
a party to the contract at issue. In light of the lack of developed
Massachusetts state law or controlling state precedent on this
issue, the court declined to rule one way or the other on the
motions for summary judgment and, instead, issued an order
explaining that it was "concerned that the [Massachusetts Supreme
Judicial Court ("SJC")] has not yet been given an opportunity to
decide legal questions that will likely have a substantial impact
on the conduct of business throughout the Commonwealth." The
court, therefore, explained that it was certifying the following
question to the SJC: "[w]hether a defendant may be liable for
employee misclassification under [Mass. Gen. Laws ch. 149, § 148B],
where there was no contract for service between the plaintiff and
defendant."4 The district court then stayed the case pending a
response by the SJC.
B. Georgia State Court
At the same time the Massachusetts case was being
litigated in the federal district court, a separate action
initiated by Jan-Pro was making its way through the Georgia statecourt
system. As is relevant to this appeal, Jan-Pro had sought
4 The district court also certified two other questions to
the SJC that are not relevant to this appeal.
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a declaratory judgment holding that no employment relationship
between Jan-Pro and Depianti existed under Section 148B and that
Jan-Pro was, therefore, not liable to Depianti in tort or contract.
In the same case, Jan-Pro also sought a declaratory judgment
against another unit franchisee, Hyun Ki Kim ("Kim") (the reason
this seemingly extraneous fact is mentioned will become apparent
later in our analysis).
At the early stages of the case, Depianti moved the
Georgia superior court (the state's trial-level court) to dismiss
the Georgia action for lack of personal jurisdiction. The superior
court, however, refused to do so. On the contrary, the court
concluded Depianti had not met his burden of demonstrating that he
lacked the minimum contacts necessary to establish jurisdiction as
required by the Georgia Long-Arm Statute. As such, the case
proceeded to discovery.
Following the conclusion of discovery, both sides moved
for summary judgment as to the Section 148B claim. In so doing,
Depianti once again challenged whether the superior court had
personal jurisdiction over him. The superior court concluded--as
it did at the motion to dismiss stage--that it did properly possess
personal jurisdiction. It also, however, favorably granted
Depianti's motion for summary judgment--holding that Depianti was,
indeed, an employee of Jan-Pro under Massachusetts law--and denied
Jan-Pro's motion regarding the same. In the same order, the
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superior court denied summary judgment as to Kim. Concurrent with
its summary-judgment order, the superior court also issued a
certificate of immediate appealability regarding the question of
personal jurisdiction. The court explained that in light of "it
appearing that said order denying [Depianti's jurisdiction motion]
is not otherwise subject to direct appeal, I do hereby certify
that said order is of such importance to the case that immediate
review should be had."5
Depianti, however, made the choice not to appeal the
superior court's personal-jurisdiction order. Jan-Pro, on the
other hand, did appeal the superior court's summary-judgment
ruling in favor of Depianti to the Georgia Court of Appeals ("GCA")
(an intermediate appellate court in Georgia). Eventually, the GCA
sided with Jan-Pro and reversed, concluding Jan-Pro had met its
burden of proving all three prongs of Section 148B. That is, the
GCA concluded that Depianti was free from the control and direction
of Jan-Pro; the cleaning services he performed were outside the
usual course of Jan-Pro's business; and Depianti was engaged in an
independently-established business (anyone interested in an indepth
recitation of the GCA's reasoning regarding each of the
5 Such a certification was needed because the personal
jurisdiction order was an interlocutory order not otherwise
subject to immediate appeal. See Ga. Code Ann. § 5-6-34(b)
(explaining procedures for certification of an interlocutory
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individual prongs can check out the GCA's decision at this
citation: Jan-Pro Franchising Int'l, Inc. v. Depianti, 310 Ga.
App. 265 (2011) ("Depianti Georgia")).
In light of this adverse ruling against Depianti, he
filed a petition for writ of certiorari to the Georgia Supreme
Court. The Georgia Supreme Court subsequently stayed its
consideration of the petition pending the outcome of the SJC's
answer to the question certified to it by the federal district
court in Boston (as discussed earlier).
Thus, as it stands in our whirlwind tour of this matter's
procedural history, both the federal district court for the
District of Massachusetts and the Georgia Supreme Court had, at
this point in time, entered stays pending the outcome of the SJC's
C. The Massachusetts Supreme Judicial Court Provides its Answer
Enter the SJC stage right with that desperately awaitedupon
answer to the question certified. May a defendant be liable
for employee misclassification under Section 148B even where there
was no contract for service between the plaintiff and defendant?
Yes, the SJC responded. Depianti v. Jan-Pro Franchising
International, Inc., 465 Mass. 607 (2013) ("Depianti Answer").6
6 In so concluding, the SJC explained that "remedial statutes
such as the independent contractor statute are 'entitled to liberal
construction'" Depianti Answer, 465 Mass. at 620 (quoting
Batchelder v. Allied Stores Corp., 393 Mass. 819, 822 (1985)).
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The SJC, however, declined to apply its holding directly
to the relationship between Depianti and Jan-Pro. The question
the district court certified was, in the words of the SJC,
"limited" which the court understood "as asking only whether a
contract between the parties is a necessary element of a claim
under G.L. c. 149, § 148B." Id. at 619 (emphasis added). The SJC
did not, in other words, interpret the certified question as asking
for direct application of the elements of the statute to the
particular franchise arrangement that existed between Jan-Pro,
BME, and Depianti. Id. at 619 n.14. The SJC therefore warned
[i]n concluding that an entity like Jan-Pro can be held
liable under G.L. c. 149, § 148B, without a contract
between itself and the employee, we should not be
understood as suggesting that Jan-Pro is in fact liable.
We take no position on the question whether the necessary
predicates for liability can be established here, a
matter involving determinations as to the summary
judgment record that are solely within the purview of
the United States District Court.
Id. at 623, n.16.
Indeed, "the purpose of the independent contractor statute is 'to
protect workers by classifying them as employees, and thereby grant
them the benefits of rights of employment, where the circumstances
indicate that they are, in fact, employees.'" Id., 465 Mass. at
620 (quoting Taylor v. E. Connection Operating, Inc., 465 Mass.
191, 198 (2013)). To allow an end-run around the statute due
simply to a company's use of a generalized, multi-tiered franchise
structure, the court concluded, would "contravene the express
purpose of the statute." Id., 465 Mass. at 624.
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All the court decided was "that the lack of a contract
for service between the putative employer and putative employee
does not itself preclude liability" under Section 148B. Id. at
624-25 (emphasis added). No more, no less.
D. The Aftermath
Less than a month after the SJC issued its answer to the
district court's certified question, the Georgia Supreme Court
lifted its stay and denied the petition for certiorari, noting
that each of the justices concurred that the case was not worthy
of review. Jan-Pro then filed a notice of final judgment in the
Massachusetts district court, explaining that in light of the
Georgia Supreme Court's denial of certiorari, the GCA decision
granting summary judgment in favor of Jan-Pro was final and should
be honored for res judicata purposes.
Soon thereafter, both parties stipulated in the Georgia
superior court to the dismissal of the Georgia action with
prejudice and waived all rights to appeal. As such, that case
effectively ended.
Back in Massachusetts, the district court also lifted
the stay and both parties filed supplemental summary-judgment
briefs in light of the SJC decision. Giving preclusive effect to
the Georgia decision, the district court judge granted Jan-Pro's
motion for summary judgment as to the Section 148B claim and denied
Depianti's motion regarding the same. Depianti, disagreeing with
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the district judge's order, has appealed and so, at long last,
here we are.
Our Take
Depianti argues the district court erred in finding it
was bound by the GCA's conclusion that he was not an employee of
Jan-Pro for purposes of Section 148B. In particular, he contends
that the GCA decision was not a final judgment and, therefore, the
preclusive effect it would otherwise be given under res judicata
principles did not attach. Jan-Pro, unsurprisingly, believes just
the opposite--namely, that the district court properly applied res
judicata and, as such, reached the only legally cognizable outcome
in granting Jan-Pro's motion for summary judgment.
While we now step in to review de novo the district
court's grant of summary judgment, see Bay State HMO Mgmt., Inc.
v. Tingley Sys., Inc., 181 F.3d 174, 177 (1st Cir. 1999) ("The
applicability of the doctrine of res judicata is a question of law
subject to plenary review"), we first pause to provide a brief
primer on the doctrine we conclude dictates the outcome of this
case: res judicata.
A. Primer
Res judicata, which provides that a final judgment on
the merits of an action precludes the parties from relitigating
claims that were or could have been raised in a prior action, Haag
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v. United States, 589 F.3d 43, 45 (1st Cir. 2009), should be
nothing new to litigants appearing before us. Indeed, its roots
are almost as old as the Republic itself, deriving from the full
faith and credit clause of the United States Constitution. See
U.S. Const. art. IV, § 1 ("Full Faith and Credit shall be given in
each State to the public Acts, Records, and judicial Proceedings
of every other State.").7 So important, in fact, is this principle
that it also has a statutory basis in the form of 28 U.S.C. § 1738,
which reads in relevant part:
The records and judicial proceedings of any court of any
. . . State, Territory or Possession . . . shall have
the same full faith and credit in every court within the
United States and its Territories and Possessions as
they have by law or usage in the courts of such State,
Territory or Possession from which they are taken.
No surprise, then, that we have concluded that a federal court
must give preclusive effect to a state-court judgment if the state
court would. Atwater v. Chester, 730 F.3d 58, 62 n.3 (1st Cir.
And res judicata shouldn't be thought of as some hollow
principle meant solely to be a thorn in the side of losing parties,
either. To the contrary:
7 For the sake of clarity, we note that we are specifically
talking here about the preclusive effect of state court judgments.
This is not to suggest that the entire doctrine of res judicata
has no other roots. See generally Robert Wyness Millar, The
Premises of the Judgment as Res Judicata in Continental and Anglo-
American Law: III. The Anglo-American Law, 39 Mich. L. Rev 238
(1940) (tracing the historical origins of res judicata).
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Its enforcement is essential to the maintenance of
social order; for the aid of judicial tribunals would
not be invoked for the vindication of rights of person
and property if, as between parties and their privies,
conclusiveness did not attend the judgments of such
tribunals . . . .
S. Pac. R.R. Co. v. United States, 168 U.S. 1, 49 (1897). Thus,
because res judicata serves interests of great concern to the
public--like finality, repose, and judicial economy--our judicial
superiors remind us that fidelity to these core interests is
frequently of greater importance than "any individual judge's ad
hoc determination of the equities in a particular case." Federated
Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981); see also
Montana v. United States, 440 U.S. 147, 153 (1979) (explaining
that res judicata is a "fundamental precept of common-law
If "[t]he central role of adversary litigation in our
society is to provide binding answers," 18 Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
§ 4403 (3d ed.), then it is the doctrine of res judicata that
necessarily preserves "judicial dispute resolution against the
corrosive disrespect that would follow if the same matter were
twice litigated to inconsistent results." Id. That is to say,
res judicata is a protection afforded to the public, one
safeguarding citizens from the anguish of being dragged through
interminable litigation solely because an adversary has the will
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or means to continue endlessly. Litigants--and the public-atlarge--
are entitled to trust that there will inevitably be an endpoint
to their judicial disputes. They are also entitled to trust
judicial action and maintain faith in judicial results. Res
judicata serves as a mechanism that ensures this trust remains
B. Application of Primer
With those res judicata principles in mind, we now turn
to the heart of this matter. Because, as noted earlier, "a state
court judgment is entitled to the same preclusive effect in federal
court as it would be given in the state in which it was rendered[,]"
García-Monagas v. De Arellano, 674 F.3d 45, 50 (1st Cir. 2012),
and because the state court rendering the decision at issue here
is in Georgia, we apply the same preclusion principles that courts
in the Peach State would apply.
Georgia's doctrine of res judicata is codified at Ga.
Code Ann. § 9-12-40, which 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 rendered until the judgment is reversed
or set aside.
And, in order for the doctrine to apply in Georgia, "three
prerequisites must be satisfied: (1) identity of the parties or
their privies; (2) identity of the cause of action; and (3)
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previous adjudication on the merits by a court of competent
jurisdiction." Brown & Williamson Tobacco Corp. v. Gault, 280 Ga.
420, 421 (2006).
Depianti takes no issue with either the first or second
prereqs. Depianti and Jan-Pro were the parties in both the Georgia
and Massachusetts actions--satisfying prereq number one--and both
actions were tasked with determining the type of relationship
Depianti maintained with Jan-Pro (employee or independent
contractor)--satisfying prereq number two. Instead, it is the
last of the three prereqs--whether the judgment of the GCA was a
final adjudication on the merits--that forms the crux of this
In Georgia, "final" means "a case in which a judgment
. . . has been rendered, the availability of appeal exhausted, and
the time for a petition for certiorari elapsed or a petition for
certiorari finally denied." Turpin v. Todd, 268 Ga. 820, 831 n.49,
(1997) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6
(1987)). Here, given that the Georgia Supreme Court did, in fact,
deny certiorari, it would appear as though the GCA's judgment was
final for purposes of res judicata. But Depianti argues otherwise.
He counters that while it is true the Georgia Supreme Court denied
certiorari, the Georgia superior court never entered a subsequent
final judgment following that denial. Without such explicit entry
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of final judgment by the trial court, Depianti continues, no
preclusive effect attached to the GCA's decision.
While Depianti doesn't cite to the legal source of his
argument on this issue, his reasoning seems to be based on Ga.
Code Ann. § 9-11-54(b). In relevant part that statute states:
any order or other form of decision, however designated,
which adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to
revision at any time before the entry of judgment
adjudicating all the claims and the rights and
liabilities of all the parties.
In other words, if there are multiple claims in a case and a
judgment is only rendered as to one of them, that judgment is "not
a final judgment and lacks res judicata effect unless the trial
court expressly directs the entry of a final judgment and
determines that there is no just reason for delaying the finality
of the judgment." Roth v. Gulf Atl. Media of Georgia, Inc., 244
Ga. App. 677, 679 (2000).
Here, the original action contained two discrete claims-
-one pertaining to Depianti and one pertaining to another unit
franchisee, Hyun Ki Kim (we told you Kim would come back up).
While the superior court granted Depianti's summary judgment
motion, it denied summary judgment with regards to Kim. Thus,
immediately following the adjudication of the summary judgment
motions, the court's judgment as to Depianti was not at that time
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final because the claim against Kim remained. See id. A Georgia
statutory provision--Ga. Code Ann. § 9-11-56(h)--however, "allows
but does not require an immediate appeal from the grant of summary
judgment to one of the parties even though the judgment is not
final. . . ." Benedict v. Snead, 253 Ga. App. 749, 751 (2002).
In other words, even though the court's grant of summary judgment
in favor of Depianti was not itself final, Ga. Code Ann. § 9-11-
56(h) provided Jan-Pro the right to file an immediate appeal of
the decision (though Jan-Pro was in no way required to do so).
Had Jan-Pro declined to pursue the appeal, then the remaining claim
against Kim would have proceeded to trial and "the effect [would
have been] that the grant of summary judgment as to [Depianti
would] not [be] a final judgment during the pendency of the suit
[because it would have been] 'subject to revision at any time
before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.'" Id. (quoting Ga.
Code Ann. § 9-11-54(b)). That is to say, had Jan-Pro chosen not
to immediately appeal the court's grant of summary judgment to
Depianti, then preclusive effect would not have attached to that
particular decision until the rest of the case played out with Kim
(and any subsequent appeals were resolved).
But that is not what happened here. Instead, Jan-Pro
did, in fact, choose to immediately appeal the Depianti summaryjudgment
decision. In Georgia, where an immediate appeal of a
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summary-judgment decision is undertaken pursuant to Ga. Code Ann.
§ 9-11-56(h) "then the appellate decision on the summary judgment
ruling is binding" for purposes of res judicata under Ga. Code
Ann. 9-11-60(h).8 Roth, 244 Ga. App. at 679 (2000); see also Aiken
Dermatology & Skin Cancer Clinic, P.A. v. DavLong Sys., Inc., 314
Ga. App. 699, 704 (2012) (same). In this particular scenario,
then, res judicata took effect against Depianti even though the
original lawsuit that resulted in the preclusive judgment against
him had not yet concluded with regard to the other party, Kim.
See Roth, 244 Ga. App. at 679. Upon the Georgia Supreme Court's
denial of certiorari, then, (1) the GCA decision became final, (2)
no express entry of final judgment by the superior court was
necessary, and (3) preclusive effect attached.
To summarize, Depianti's argument that the Georgia
judgment was not final because the superior court never crafted a
declaratory judgment to close out the case is a failure. Once the
GCA spoke and the Georgia Supreme Court denied certiorari, the
shape of that declaration was foreordained. We have made plain,
8 Ga. Code Ann. 9-11-60(h) states: "The law of the case rule
is abolished; but generally judgments and orders shall not be set
aside or modified without just cause and, in setting aside or
otherwise modifying judgments and orders, the court shall consider
whether rights have vested thereunder and whether or not innocent
parties would be injured thereby; provided, however, that any
ruling by the Supreme Court or the Court of Appeals in a case shall
be binding in all subsequent proceedings in that case in the lower
court and in the Supreme Court or the Court of Appeals as the case
may be." (emphasis added).
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long ago, that we will not force a litigant "round and round the
mulberry bush for no better reason than ceremonial
punctiliousness." González v. Vélez, 864 F.3d 45, 56 (1st Cir.
2017) (quoting Jusino v. Zayas, 875 F.2d 986, 990 (1st Cir. 1989)),
and mandating that Jan-Pro get the superior court's stamp of
approval on the final judgment of the GCA would do just that.
This could otherwise be the end of the case, but Depianti
attempts to circumvent this unfavorable outcome by asserting a
second argument: that the Georgia courts never had personal
jurisdiction over him and, therefore, the GCA decision also cannot
be considered final for that reason. "A motion to set aside a
judgment based upon a lack of jurisdiction over the person may be
brought at any time[,]" Swafford v. Elkins, 327 Ga. App. 802, 803
(2014), even at the conclusion of a case. Depianti argues that
because he never forfeited the right to lodge an appeal on
jurisdictional grounds, the final judgment of the GCA cannot truly
be "final." Notwithstanding the fact that the GCA's decision was
final for the reasons already discussed above, this alternative
argument is also unavailing.
It is undisputed that Depianti challenged whether the
Georgia superior court had jurisdiction over him at the motion to
dismiss stage and again at summary judgment. It is also undisputed
that the court determined both times that it properly possessed
jurisdiction. In general, such interlocutory orders are not
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appealable. See, e.g., Anthony v. Anthony, 236 Ga. 508, 509
(1976). But--and this should start to sound familiar--there is an
exception to this generalized rule. "The courts of Georgia and
[our sister court, the 11th Circuit's] binding precedent
interpreting Georgia law have clarified that when a trial judge
certifies an interlocutory order for immediate appeal, the order
becomes final for purposes of both appealability and preclusion."
Cmty. State Bank v. Strong, 651 F.3d 1241, 1265–66 (11th Cir. 2011)
(citing Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (1978)).
Here, the superior court did exactly that. When it granted
Depianti's motion for summary judgment on the Section 148B claim
(and also rejected his assertion that no personal jurisdiction
existed), the court simultaneously issued a certificate of
immediate review as to the personal jurisdiction ruling. That is,
the court noted that the question of personal jurisdiction was of
such importance to the case that Depianti should be afforded the
opportunity to appeal its decision forthwith. Depianti, however,
chose not to appeal the personal jurisdiction issue, presumably
because he had won on the substantive Section 148B claim. And
while that may have seemed like sound strategy at the time,
strategic decisions have consequences. Here, that decision to
forego an appeal created res judicata effect. See id. (quoting
Culwell, 242 Ga. at 243) ("'[i]f the trial court does certify that
the judgment is final and ripe for review under Code Ann. § 81A–
- 24 -
154(b) [now § 9–11–54(b)], the time for appeal begins to run,'
creating 'res judicata effect.'"). The federal district court in
Massachusetts, therefore, correctly concluded that it had no
independent obligation to determine whether the Georgia courts had
competent jurisdiction. Rather, the district court was bound by
the Georgia superior court's judgment that jurisdiction was
Finally, to the extent Depianti argues that the GCA got
the decision wrong and that the logic it relied upon was overruled
by the SJC in Depianti Answer, that argument fails.10 Whether or
not Depianti Answer changed the lay of the land by substantially
altering how Section 148B claims should be adjudicated, it is
nonetheless "a well-settled principle that res judicata does not
9 Additionally, we want to note here that Depianti's argument
seems especially frivolous--bordering on disingenuous--in light of
the fact that a joint stipulation of dismissal with prejudice was
filed in the Georgia action that waived all rights of appeal.
Depianti's position that he still could have appealed the personal
jurisdiction issue seems nonsensical where (1) the superior court
certified its jurisdiction order for immediate appealability; (2)
Depianti chose not to appeal; and (3) Depianti subsequently waived
all rights to appeal when the parties jointly dismissed the action.
10 As a side note, Depianti's position that Depianti Answer
created such a seismic shift in the law so as to fully undermine
the GCA's decision is questionable. The SJC merely concluded "that
the lack of a contract for service between the putative employer
and putative employee does not itself preclude liability" under
Section 148B. Depianti Answer, 465 Mass. at 624-25 (emphasis
added). While we express no view as to the correctness of the GCA
decision, we note that the GCA included numerous other reasons for
its ruling beyond the existence of Jan-Pro's multi-tiered
franchise structure. See generally Depianti Georgia, 310 Ga. App.
- 25 -
allow dispensation for intervening changes in the law." Haag, 683
F.3d at 32 n.2 (1st Cir. 2012). That is to say, "the res judicata
consequences of a final . . . judgment on the merits [are not]
altered by the fact that the judgment may have been wrong or rested
on a legal principle subsequently overruled in another case."
Moitie, 452 U.S. at 398. Indeed, "if courts relaxed the principles
of claim preclusion every time it appeared that a litigant had a
strong claim 'on the equities,' the doctrine would fail to serve
its purposes of promoting judicial economy and repose." Rose v.
Town of Harwich, 778 F.2d 77, 82 (1st Cir. 1985), cert. denied,
476 U.S. 1159 (1986).11 Any argument to the contrary, therefore,
is a nonstarter.
Wrapping It Up
As attractive as it often is to resolutely pursue a
certain position--especially one so wholeheartedly believed in--
the more appropriate approach is sometimes to simply let sleeping
dogs lie--particularly where, as here, the law mandates it.

* * *

11 While both parties briefed the issue, we need not venture
into the murky world of whether the GCA correctly applied Section
148B's test in concluding Depianti was not an employee of Jan-Pro.
Because res judicata dictates the outcome here, no more is needed.

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Comment: You gotta know when to hold em and you gotta know when for fold em.

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