Claim Preclusion question

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
Judge Philip Banks
Posts: 449
Joined: Fri Aug 13, 2010 4:21 pm

Claim Preclusion question

Postby Judge Philip Banks » Thu May 03, 2012 2:45 pm

Is granting a 12(b)(6) on the merits for purposes of claim preclusion?

I'd say yes, as long as the order does not state otherwise, since under Twombly/Iqbal, the court examines the complaint for plausibility, which I think is a peek at the merits.

Geist13
Posts: 739
Joined: Sat Oct 10, 2009 3:21 pm

Re: Claim Preclusion question

Postby Geist13 » Thu May 03, 2012 3:05 pm

I can't say one way or the other. I can say that if they do have preclusive effect, it is not for that reason. Bear in mind that most 12b6 dismissals are without prejudice which means you just re-plead the complaint. So its a more complicated answer then just they are preclusive or they are not preclusive.

User avatar
Glock
Posts: 395
Joined: Sat Jul 02, 2011 6:48 pm

Re: Claim Preclusion question

Postby Glock » Thu May 03, 2012 3:45 pm

A 12(b)(6) dismissal precludes the claim in the future. Of course the original plaintiff can appeal. If the 12(b)(6) was proper then game over/claim precluded. If it was improper they can start again.

User avatar
Glock
Posts: 395
Joined: Sat Jul 02, 2011 6:48 pm

Re: Claim Preclusion question

Postby Glock » Thu May 03, 2012 3:54 pm

Let me add that I've seen courts grant a 12(b)(6) motion and say something like "no federal jurisdiction" somewhere in the order, in an apparent misunderstanding about the motion or what they should be ordering. That would likely not be precluded.

A tricky professor would have the court improperly grant a 12(b)(6) motion for something that is not on the merits.

NotMyRealName09
Posts: 1394
Joined: Mon Nov 09, 2009 5:50 pm

Re: Claim Preclusion question

Postby NotMyRealName09 » Thu May 03, 2012 5:02 pm

[T]he failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. The exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.


Bell v. Hood, 327 U.S. 678, 683 (1946) (citations omitted).

User avatar
gdane
Posts: 12383
Joined: Sat Sep 26, 2009 2:41 pm

Re: Claim Preclusion question

Postby gdane » Thu May 03, 2012 5:43 pm

I thought claim preclusion was an affirmative defense.

Yea, an 8(c) affirmative defense. Res Judicata.

http://www.law.cornell.edu/rules/frcp/rule_8

User avatar
Judge Philip Banks
Posts: 449
Joined: Fri Aug 13, 2010 4:21 pm

Re: Claim Preclusion question

Postby Judge Philip Banks » Thu May 03, 2012 6:56 pm

Basically, the way that I am looking at it, if a complaint is dismissed with prejudice for failure to state a claim (because there are no facts in the world that could allow the party to state a plausible claim), this will be on the merits and a future claim would be precluded. If the complaint is only dismissed without prejudice, the claim is not precluded because the party is permitted to re-file a better complaint. Like Glock said, if the order says something about procedure or jurisdiction being grounds for the dismissal, then that is not on the merits and there is no claim preclusion.

And yeah, claim preclusion can be raised as an affirmative defense in an answer, or can be raised in a MSJ.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: python123456 and 4 guests