United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach,
Former University of Wisconsin-Oshkosh baseball coach Thomas Lechnir filed this action contending that the University’s failure to renew his contract constituted a violation of due process and retaliation. The Defendants moved to dismiss almost all of the claims. This court granted the motion in part. (ECF No. 33.) Following that decision, the Defendants filed a motion for judgment on the pleadings, seeking dismissal of the remaining claim. For the reasons given below, the motion will be granted.
Many of the underlying facts are set forth in this court’s June 29, 2015 decision. (ECF No. 33.) For present purposes, it is enough to explain that this action arises out of alleged bad blood and bureaucratic in-fighting culminating in what the complaint alleges was a group effort to effectuate Lechnir’s departure from Oshkosh.
Lechnir challenged his non-renewal through an “ad hoc” peer review, with a three-member staff committee hearing Lechnir’s assertion that his nonrenewal was not warranted. The committee essentially punted the issue back to the chancellor, who reaffirmed his earlier decision not to renew Lechnir’s contract. Lechnir then appealed in Winnebago County Circuit court, which upheld the nonrenewal, and then he filed an appeal in the state court of appeals. In a March 11, 2015 decision, that court affirmed, finding no violation of due process nor any violation of other protected interests. Lechnir v. University of Wisconsin-Oshkosh, 2015 WL 1034746 (Wis. Ct. App., March 11, 2015).
The complaint alleges that Plaintiff’s non-renewal was an effort to retaliate against him for his effort to blow the whistle on what he described as the “misallocation of construction-related gifts.” (ECF No. 12 at ¶ 161.) The Defendants (apart from Chancellor Wells) originally moved to dismiss on the grounds that they were not the final decision makers with respect to his non-renewal. I denied the motion, citing the fact that individuals who conspire or aid in the retaliation could also be liable even if they are not the final decision maker. In their present motion, the Defendants now argue that the doctrine of claim preclusion prevents the Plaintiffs from pressing their claim in federal court.
In responding to the motion, Plaintiff’s primary argument is that the Defendants waived their claim preclusion defense by not raising it in their earlier motion to dismiss. Claim preclusion is a defense that may be waived like any other. Moreover, efficient administration of litigation often dictates that parties should make their best arguments when the opportunity arises rather than in piecemeal fashion. I agree with the Plaintiff that best practices would dictate the raising of the issue earlier, particularly when the Defendants raised claim preclusion as a defense to other claims. In fact, because claim preclusion is a defense itself founded on principles of waiver, one would generally expect it to be raised at the earliest opportunity. Even so, I conclude nothing in the rules mandates a finding that the issue is now waived. And because the courts maintain a clear preference for reaching the merits in litigation, I find the Defendants’ argument is timely raised.
Fed. R. Civ. P. 12(g)(2) provides that “Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” In other words, a party must generally include all of its defenses in a single Rule 12 motion, unless the exception in Rule 12(h)(2) or (3) applies. Rule 12(h)(2) allows parties to bring a motion under 12(c) for failure to state a claim. This, the Defendants argue, is exactly what they’ve done. Although earlier they brought a motion to dismiss under Rule 12(b)(6), they are now bringing a motion under 12(c) (judgment on the pleadings) for failure to state a claim. “The Rule 12(h)(1) waiver rule applies only to the defenses listed in Rule 12(b)(2)-(5) (lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process). Failure-to-state-a-claim defenses are thus excepted from the Rule 12(g)(2) consolidation requirement and not included in the Rule 12(g)(1) waiver rule.” Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) (allowing statute of limitations defense to be brought in successive motion to dismiss).
Since a defense of failure to state a claim is not subject to the consolidation requirement, the only remaining question is whether a claim preclusion defense is tantamount to defense of failure to state a claim. It is. Courts commonly treat claim preclusion (or res judicata) as an argument that the plaintiff has failed to state a claim. See, e.g., Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008) (finding that a res judicata defense sometimes can be “a proper basis for a Rule 12(b)(6) motion.”); Golbourn v. Gen. Motors Corp., 98 F.Supp.2d 975, 977 (N.D. Ill. 2000) (“The defendants move to dismiss her complaint under Fed.R.Civ.P. 12(b)(6) on the grounds of res judicata (now called claim preclusion), and I grant the motion.”); Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir. 2000) (“Dismissal under Fed.R.Civ.P. 12(b)(6) is appropriate when a defendant raises claim preclusion. . . .”); Ward v. Jessie Brown V.A. Hosp., 2005 WL 3312601, at *4 (N.D. Ill.Dec. 5, 2005) (“The Government has moved to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that Ward has failed to state a claim upon which relief can be granted because his FTCA claim is barred by res judicata.”)
Claim preclusion is normally raised through a Rule 12(c) motion for judgment on the pleadings. “Technically, of course, res judicata is an affirmative defense for the defendant, see Fed.R.Civ.P. 8(c), and thus cannot be raised until a motion for judgment on the pleadings under Rule 12(c).” Forty One News, Inc. v. Cty. of Lake, 491 F.3d 662, 664 (7th Cir. 2007). In some circumstances, however, a defense of claim preclusion may be raised in a motion to dismiss if, as here, the defense is premised on public records, and no further information or discovery is required. Thus, the Defendants availed themselves of that opportunity by bringing a motion to dismiss under Rule 12(b)(6). Nothing in the rules, however, requires that if a defendant brings a 12(b)(6) motion based on claim preclusion, he is then barred from bringing a subsequent Rule 12(c) motion. Accordingly, I find the defense not waived.
B. Claim Preclusion
This court dismissed the Plaintiff’s due process claims because they could have been raised in his state proceedings. In the same decision, the court expressed some surprise that the Defendants had not moved for dismissal of the ...