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Under Fed. R. Civ. P. 41(b), an order of a court which dismisses a complaint for failure to state a claim, but which does not specify that the dismissal is without prejudice, is res judicata as to a later claim.
On June 17, 1970, plaintiff filed a complaint seeking damages and claiming that an arrest on November 24, 1964, deprived him of rights secured by the constitution. Defendants asserted that the matter was res judicata by virtue of the dismissal on May 15, 1969 of a complaint based on the same arrest. The prior complaint was dismissed for failure to state a claim upon which relief could be granted. The two complaints were identical in substance, except an averment that the arrest was made without probable cause was included in the second complaint, but not the first. The trial court sustained the defense of res judicata and dismissed the action.
Was the latter complaint barred by res judicata?
On appeal, the court noted that under Rule 41(b), F.R.C.P., an order of a district court which dismissed a complaint for failure to state a claim, but which did not specify that the dismissal was without prejudice, was res judicata as to the then existing claim which it appeared plaintiff was attempting to state. In the case at bar, the court determined that the present action was barred by res judicata since the court dismissed the 1969 complaint for failure to state a claim without specifying that the dismissal be without prejudice.