D. Md. Applies Doctrine of Res Judicata Based on 12(b)(6) Dismissal in Prior Case

Per Frank v. Home Depot, U.S.A., Inc., 481 F.Supp.2d 439 (D. Md. Apr. 11, 2007):

Frank argues that he entered into an employment contract with Home Depot in 1997 and that Home Depot breached this contract in terminating him in March 2003. Home Depot argues that this claim is barred by res judicata and that Frank was an at-will employee without an employment contract.

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Res judicata applies when there is: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits. Pueschel v. U.S., 369 F.3d 345, 354-55 (4th Cir.2004).

To assess the first element, the Court addresses the effect of the dismissal in Frank I. “Unless the court in its order for dismissal otherwise specifies,” a dismissal under: (1) Rule 41(b) “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court,” and (2) “any dismissal not provided for in [Rule 41], other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.” Fed.R.Civ.P. 41(b). As Rule 12(b)(6) is a dismissal not provided for in Rule 41(b) and is not for lack of jurisdiction, improper venue, or failure to join a party, the dismissal of Frank I under Rule 12(b)(6) for failure to state a claim operates as an adjudication upon the merits. See Andrews v. Daw, 201 F.3d 521, 525 n. 2 (4th Cir.2000) (stating that under Rule 41(b) a dismissal under Rule 12(b)(6) is a final judgment on the merits for purposes of res judicata ).

The second element of res judicata requires “[t] he determination of whether two suits arise out of the same cause of action[;]” that determination “does not turn on whether the claims asserted are identical.” Pueschel, 369 F.3d at 355. Instead, “it turns on whether the suits and the claims asserted therein arise out of the same transaction or series of transactions or the same core of operative facts.” Id. (citations omitted). In Frank I the reason for his termination was alleged to be discriminatory, retaliatory, and against public policy and in Frank II the reason is alleged to have breached an employment contract. Thus, the earlier suit and the current claim for breach of contract center on Home Depot's decision to terminate Frank.

As to the third element of res judicata, Frank I and Frank II involve the identical parties. Accordingly, Frank's two suits are identical for purposes of res judicata and therefore Count I is barred.