Claim Preclusion question Forum

[Judge Philip Banks]

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]

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.

[Glock]

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.

[Glock]

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]

[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).

[gdane]

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

[Judge Philip Banks]

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.