IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 

for the Northern District of Texas

USDC No. 4:12-CV-353 

Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges

United States Court of Appeals

Fifth Circuit

F I L E D

October 2, 2013

Lyle W. Cayce

Clerk

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No. 13-10023

PER CURIAM:*

Petitioner Rocky Mountain ChoppersL.L.C.(“RMC”)filed this suit against

Textron Financial Corp (“Textron”) alleging claims of fraud associated with

RMC’s acquisition of the assets of American IronHorse Motorcycle Company, 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, Scott and Susan Meyers formed AIH Aquisitions, L.L.C.

(“AIH”) to purchase assets from AIMC after it filed for bankruptcy. Textron was

AIMC’s pre-petition secured lender and post-petition debtor in possession lender. 

On May 21, 2008—after negotiations between the Meyerses and Textron—AIH

and Textron finalized a sales transaction in which AIH acquired AIMC using

financing from Textron. By early 2009, however, AIH had defaulted under its

loan agreement with Textron. 

Several proceedings arose from these events, involving state claims and

other adversary proceedings that were consolidated by the bankruptcy court. In

particular, on Dec. 7, 2010 the Meyerses filed a petition for intervention against

Textron in the bankruptcy court alleging fraudulent inducement and negligent

misrepresentation.1 The bankruptcy court 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 independently (hereinafter

“previously dismissed case”). 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 The Meyerses voluntarily abandoned their negligence misrepresentation claim.

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On June 1, 2012, RMC—an entity owned solely by the Meyerses—brought

the instant suit against Textron, 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 court reviews de novo a dismissal under Rule 12(b)(6) and the res

judicata effect of a prior judgment. Bass v. Stryker Corp., 669 F.3d 501, 506 (5th

Cir. 2012); Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012);

Highland Capital 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 and that, even if it were, the district court should have denied the

motion because Textron did not show privity between RMC and the Meyerses. 

Second, RMC argues that, contrary to the district court’s finding, the complaint

alleges fraud with sufficient specificity to satisfy Fed. R. Civ. P. 9(b). Its

arguments are unavailing. 

Although a district court primarily looks to the allegations in the

complaint in determining whether to grant a Rule12(b)(6) motion, there are

other sources it may consider. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007). For example, a district court may take into account

documents incorporated into the complaint by reference or integral to the claim,

items subject to judicial notice, matters of public record, orders, items appearing

in the record of the case, and exhibits attached to the complaint whose

authenticity is unquestioned. Id.; § 1357 Motions to Dismiss—Practice Under

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Rule 12(b)(6), 5B Fed. Prac. & Proc. Civ. § 1357 (3d ed.); see also Funk v. Stryker

Corp., 631 F.3d 777, 783 (5th Cir. 2011) (“[T]he district court took appropriate

judicial notice of publicly-available documents and transcripts . . . which were

matters of public record directly relevant to the issue at hand.”). Thus, while res

judicata is generally an affirmative defense to be pleaded in a defendant’s

answer (Test Masters Educ. Servs., Inc., 428 F.3d at 570 n. 2) there are times

when it may be raised on a Rule 12(b)(6) motion. This Court has found that res

judicata may be properly raised on a motion to dismiss when “the facts are

admitted or not controverted or are conclusively established.” Clifton v.

Warnaco, Inc., 53 F.3d 1280, at *6 n. 13 (5th Cir. 1995) (per curiam)

(unpublished) (internal citations omitted). “When all relevant facts are shown

by the court’s own records, of which the court takes notice, the defense [of res

judicata] may be upheld on a Rule 12(b)(6) motion without requiring an answer.” 

Id. 

Here, besides the pleadings, the district court took into account public

records and prior court proceedings in deciding the Rule 12(b)(6) motion. 

Accordingly—if the elements of res judicata were met—it appropriately

dismissed the RMC’s claims on this basis. 

Four elements must be present to support a finding of 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 action was involved in both

actions. Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 (5th Cir.

2004). The district court held that all four elements were established here. 

RMC contests the district court’s finding on the first of those four

elements; namely, it argues that there is no privity between RMC and the

Meyerses. We disagree. Textron is the only defendant in both actions. As the

district court pointed out, it is undisputed that the Meyerses controlled the

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instant action as well as the dismissed case. RMC alleges that it is an entity

owned by the Meyerses; public records show that the Meyerses are the sole

managers or members of RMC; and RMC stipulated that the Meyerses owned

RMC and were RMC’s sole members and managers with “full authority to

exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. 

To whatever extent RMC has a legitimate interest in the claims 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 in the previously

dismissed case. Thus, the record supports a finding of privity.

Because we affirm on the district court’s dismissal of RMC’s suit on

grounds of res judicata, we do not need to reach the Rule 9(b) issue. United

States v. Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009) (“[A court of appeals] may

affirm for any reason supported by the record . . .”). Furthermore, in light of our

earlier finding that the claims were appropriately dismissed on res judicata, we

pretermit discussion of RMC’s argument that the district court should not have

dismissed its claims with 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 privies from relitigating issues that were or could have been

raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins.

Servs., 494 F. App’x 487, 490 (5th Cir. 2012) (per curiam) (unpublished)

(“Because [the party’s] counterclaim is conclusively barred by res judicata,

dismissal with prejudice was appropriate.”). 

III. 

For the foregoing reasons, we AFFIRM the judgment of the district court

dismissing RMC’s claims. 

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