### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-10023 Summary Calendar

SCOTT MEYERS, ET AL,
Plaintiffs
v. TEXTRON, INCORPORATED, ET AL,
Defendants

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ROCKY MOUNTAIN CHOPPERS L.L.C., Plaintiff-Appellant,
v. TEXTRON FINANCIAL CORPORATION, Defendant-Appellee.

Appeal from the United States District Court f or the Northern District of Texas U SDC No. 4:12-CV-353

Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 2, 2013 Ly l e W . Cay ce Clerk Case: 13-10023 Document: 00512394523 Page: 1 Date Filed: 10/02/2013No. 13-10023

PER CURIAM: * Petitioner Rocky M o u nt ai n C h o p p e r s L

. L

. C

. (“RM C ”) filed this suit against Textron Financial Corp (“Textron”) alleging claims of fraud ass o c i ated with RMC’s acquisition of the assets of Am e ric a n I r o n H o r s e M o t o rc yc l e C o m p a ny, Inc. (“AIMC”). Textron filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), which the district court granted. For the reasons stated herein, we AFFIRM.

I. In early 2008, Sco t t a n d Susan M eyers f ormed AIH Aquisitions, L.L.C. (“AIH”) to p urchase assets from AIMC after it filed for bankruptcy. T extron was AIMC’s pre-petition s e c u r e d l e n d e r a n d p o s t

- p e titi o n d eb t o r i n possession lender. On May 21, 2008—after negotiations between the Meyerses and Textron—AIH and T extron f

inalized a s a les transaction in w hich AIH acquired AIMC using financing from Textron. By early 2009, h o wever, AIH had defaulted under its loan agreement with Textron. Several proceedings arose from these ev e n t s , involving state claims and other adversary p roceedings that were consolidated by the b ankruptcy court. In particular, on Dec. 7, 2010 the Meyerses filed a p etition for i ntervention against Textron in the bankruptcy court alleging fraudulent inducement and negligent misrepresentation. 1 The bankruptc y c o u rt dismissed those claims with prejudice. On review, the district court found that the bankruptcy court did not have the constitutional authority to dismiss the Meyerses claims with prejudice, but went on to dismiss their claims with prejudice i n d ependently (hereinafter “previously dismissed case”).

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not preced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4.

1 The M eyers es voluntarily aband oned their negligence m is rep res entation claim

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On June 1, 2012, RMC—an entity owned solely by the Meyerses—brought the instant s uit against T extron, alleging fraud in connection with the May 21, 2008 agreement. The district court dismissed the suit with prejudice on two independent grounds: (1) res judicata based on the judgment in the previously dismissed case; and, (2) failure to plead fraud with particularity under Fed. R. Civ. P. 9(b). RMC timely appealed. II. This c ourt reviews d e n ovo a dismissal under Rule 1 2(b)(6) and the res judicata effect of a prior judgment

. Bass v. Stryker Corp. , 6 69 F .3d 501, 506 (5th Cir. 2 012); Bowlby v. City of Aberdeen, Miss. , 681 F.3d 2 15, 219 (5th C i r . 2012); Highland C

apital Mgmt. LP v. Bank of Am, Nat’l Ass’n , 698 F.3d 202, 205 (5th Cir. 2012); Test Masters Educ. Servs., Inc. v . Singh , 428 F

. 3d 559, 571 (5th Cir. 2005). RMC argues that dismissal was improper for several reasons. First, RMC maintains that res judicata is not an appropriate basis for a Rule 12(b)(6) dismissal a nd that, e v e n if it were, the district court should have d enied the motion because Textron did not show privity between RMC a nd the Meyerses. Second, RMC argues that, contrary to the district court’s finding, the c o mplaint alleges fraud with sufficient specificity t o satisfy Fed. R. Civ. P. 9(b). I t s arguments are unavailing. Although a district court primarily looks t o the allegations in the

c omplaint in determining whether t o grant a Rule12(b)(6) motion, th e r e a r e other s ources it may consider. Tellabs, Inc. v . Makor I ssues & Rights, Ltd. , 551 U.S. 308, 322 ( 20 0 7). For example, a district c ourt may take into account documents incorporated into the complaint by reference or integral to th e claim, items subject to judicial notice, matters of public r e cord, orders, items appearing in the record of the case, and exhibits attac h e d to the complaint whose authenticity is u nquestioned. Id. ; § 1357 Motions to Dismiss—Practice Under
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Rule 12(b)(6), 5B Fed. Prac. & Proc. Civ. § 1357 (3d ed.); s ee also Funk v. Stryker Co r p . , 631 F.3d 777, 783 (5th Cir. 2011) (“[T]he district c o urt took appropriate judicial notice o f publicly-available documents and transcripts

. . . w h i ch were matters o f public record directly relevant to the issue a t h and.”). Thus, w hile res jud i c a ta is generally an affirmative defense to be pleaded in a defendant’s

answer ( Test Masters Educ. Servs., I n c . , 428 F.3d at 570 n. 2) there a re times when it may be raised on a R ule 12(b)(6) motion. This Court has found that res judicata may be prope r l y r a i s e d on a m otion t o di smiss when “the facts are
a dmitted or not controverted or a re conclusively established.” Clif t o n v . Warnaco, Inc. , 5 3 F .3d 1280, at *6 n. 1 3 ( 5 t h C i r. 1995) (per curiam) (unpublished) (internal citations omitted). “When all relevant facts are shown by the court’s own rec o r d s , o f which the c o urt takes notice, the d efense [of res judicata] may be upheld on a Rule 12(b)(6) motion without requiring an a nswer.” Id. Here, besides the pleadings, the di strict court took into account public

rec o rds and prior court p roceedings i n deciding the Rule 12(b)(6) motion. Accordingly—if t h e e l ements of res judicata were met—it appropriately dismissed the RMC’s claims on this basis. Four elements must be present to support a finding o f res judicata: (1) the parties are identical or in privity; (2) the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and, (4) the same claim or cause of a ction was involved in both actions. Proctor & Gamble Co. v. Amway Corp

. , 3 7 6 F.3d 496, 499 ( 5th Cir. 2004). The dist r i c t c o u r t held that all f our elements were established here. R M C contests the district court’s finding on the first of those fo u r elements; namely, it argues that there is n o privity be t w e e n R M C and the Meyerses. We disagree. Textron is the only d efendant in both actions. As the district court po i n t e d o ut, it is undisputed that the Meyerses controlled the

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instant action a s well as the dismissed case. RMC alleges tha t i t i s a n entity owned by the Meyerses; public records show that the M eyerse s a re the sole managers or members of RMC; and R M C stipulated that the Meyerses owned RMC and were RMC’s sole members a nd m anagers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever e x t e n t RMC has a legitimate interest i n the c l aims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses i n the previously dismissed case. Thus, the record supports a finding of privity. Because w e a f

f irm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we d o n o t n e e d t o reach the Rule 9 (b) issue. United States v. Gonzalez , 592 F.3d 675, 681 (5th Cir. 2009) (“[A court of appeals] m ay affirm for a ny reason s upported by the record

. . .”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on r es judicata, we pretermit discussion of RMC’s argument that the district court s hould not have dismissed its claims w i th prejudice. Allen v. McCurry , 449 U.S. 90, 94 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their p r i v i e s from relitigating issues that were or could have been raised i n that action.”); s ee also W i l der Corp. of Del., I

nc. v . Rural Cmty. Ins. Servs. , 494 F. App’x 487, 490 (5th Cir. 2 0 1 2 ) (per curiam) (unpublished) (“Because [the party’s] counterclai m is conclusively barred by res j udicata, dismissal with prejudice was appropriate.”). III. For the f oregoing reasons, w e AFFIRM the judgment of the district court dismissing RMC’s claims.

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