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Plaintiffs who ignore the risks of a dismissal under FRCP 12(b)(6) for failure to state a claim do so at their own peril. Typically, a judge will dismiss plaintiff’s complaint with leave to amend, meaning that the plaintiff can file an amended complaint in the same court. (Indeed, the district court judge had granted Dioguardi leave to amend when he dismissed Dioguardi’s first complaint. Dioguardi v. Durning, 139 F.2d 774, 774 (2d. Cir. 1944)). But when the complaint is dismissed without leave to amend, a dismissal under FRCP 12(b)(6) constitutes “a ‘judgment on the merits’ to which res judicata applies.” Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002). In other words, such a dismissal means that any new actions on that claim are barred forever. We will further discuss the principles of res judicata (claim preclusion) in Section XIV.A of the course.
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