No. 01-829 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2003 MT 62 

DOUGLAS L. PLOUFFE, 

Plaintiff and Appellant, 

v. 

STATE OF MONTANA, DEPARTMENT OF JUSTICE, 

GAMBLING CONTROL DIVISION, DEPARTMENT OF 

PUBLIC HEALTH AND HUMAN SERVICES, 

DEPARTMENT OF ENVIRONMENTAL QUALITY and 

JOHN DOES, I THROUGH XX, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Blaine, Cause No. DV 2001-13, 

The Honorable E. Wayne Phillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Douglas L. Plouffe (pro se), Chinook, Montana 

For Respondents: 

Roger T. Witt, Ugrin, Alexander, Zadick & Higgins, Great Falls, Montana 

Submitted on Briefs: October 17, 2002 

 Decided: March 28, 2003 

Filed: 

__________________________________________ 

Clerk
2 

Justice Terry N. Trieweiler delivered the Opinion of the Court. 

¶1 The Plaintiff, Douglas Plouffe, brought this action in the 

District Court for the Seventeenth Judicial District in Blaine 

County, in which he alleged that Defendants, the State of Montana 

and several of its agencies, damaged him by tortious conduct, 

including malicious prosecution and defamation. Defendants filed a 

motion to dismiss based on principles of res judicata. The 

District Court granted Defendants' motion to dismiss, and Plouffe 

appeals that order. We reverse the order of the District Court. 

¶2 The sole issue on appeal is whether the District Court erred 

when it granted the Defendants' motion to dismiss. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶3 Douglas Plouffe is the sole shareholder of Sleeping Buffalo 

Management, Inc., which owned and operated Sleeping Buffalo Resort, 

a recreation facility near Malta, Montana, from 1988 through 1999. 

 During the course of the operation of that resort, Plouffe was 

cited by the Defendants for violations related to the operation of 

gaming machines. These citations apparently caused Plouffe to 

eventually lose his license to operate gaming machines, and his 

business subsequently closed. 

¶4 On May 18, 2001, Plouffe filed a pro se fifteen-page complaint 

in the District Court, naming as defendants the State of Montana, 

Department of Justice, Gambling Control Division, Department of 

Environmental Quality and John Does I through XX. Plouffe alleged 

that the Defendants "knowingly, purposely, and/or negligently 

committed these tortious acts against the Plaintiff," and as a 
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result damaged him in his capacity as sole stockholder and owner of 

Sleeping Buffalo Management, Inc., and Sleeping Buffalo Resort. He 

alleged various specific violations of his rights, including his 

rights to due process of law and equal protection of the law. He 

also alleged several tort claims, including defamation, negligence 

and outrageous governmental conduct. For each claim Plouffe 

alleged specific facts in support. The Defendants did not file a 

motion pursuant to Rule 12(e), M.R.Civ.P., for a more definite 

statement. 

¶5 On July 16, 2001, the Defendants filed a motion to dismiss 

Plouffe's complaint pursuant to Rule 12(b)(6), M.R.Civ.P. 

Defendants submitted a brief in support of their motion to dismiss, 

in which they contended that the current suit was barred by 

principles of res judicata. To support their motion, Defendants 

cited to several prior causes of action brought by Plouffe and 

adjudicated in Defendants' favor. Plouffe filed a response on 

August 6, 2001, in which he distinguished the current case from the 

prior cases. On August 23, 2001, Defendants filed a reply brief, 

and attached with it 151 pages of exhibits, which included 

pleadings and orders from the cases referred to in their initial 

brief in support of their motion to dismiss. 

¶6 On August 30, 2001, Plouffe filed a reply to Defendants' reply 

brief, which stated in part: "[t]he defendants has [sic] attached 

several exhibits to their reply brief, as their motion was not a 

motion for Summary Judgment, their exhibits are outside of the 

pleadings and should not be considered." The reply further 

responded to Defendants' arguments raised in their reply brief. 
4 

¶7 On September 18, 2001, the District Court issued its Order on 

Motion to Dismiss, and granted Defendants' motion to dismiss 

Plouffe's complaint. 

STANDARD OF REVIEW 

¶8 We review de novo a district court's ruling on a motion to 

dismiss pursuant to Rule 12(b)(6), M.R.Civ.P. Powell v. Salvation 

Army (1997), 287 Mont. 99, 102, 951 P.2d 1352, 1354. "A motion to 

dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of 

admitting all well-pleaded allegations in the complaint. In 

considering the motion, the complaint is construed in the light 

most favorable to the plaintiff, and all allegations of fact 

contained therein are taken as true." Willson v. Taylor, 194 Mont. 

123, 126-27, 634 P.2d 1180, 1182 (citations omitted). We will affirm 

the District Court's dismissal when we conclude that the plaintiff would not be entitled to 

relief based on any set of facts that could be proven to support the claim. Grove v. Montana 

Army Nat. Guard (1994), 264 Mont. 498, 501, 872 P.2d 791, 793. The determination 

whether a complaint states a claim is a conclusion of law, and the District Court's conclusions 

of law are reviewed for correctness. Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 

P.2d 761, 762. 

DISCUSSION 

¶9 Did the District Court err when it granted Defendants' motion 

to dismiss? 

¶10 The District Court found that it was appropriate to dismiss 

Plouffe's complaint because principles of res judicata applied and 
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stated that "[t]hese causes of action, claims for damages, and 

prayers for relief are verbatim those set forth in [Plouffe's] 

original Complaint of February 25, 1998. Complaint and Demand For 

Jury Trial, Cause No. DV-98-055, pages 15-16." The District Court 

acknowledged Rule 12(b)(6), M.R.Civ.P., but cited to our decision 

in Glickman v. Whitefish Credit Union Ass'n, 1998 MT 8, 287 Mont. 

161, 951 P.2d 1388, to support its conclusion that "[a] Motion to 

Dismiss under this Rule is particularly appropriate when the issue 

of res judicata is presented to the Court." From the District 

Court's order, it is apparent that the District Court considered 

the exhibits attached to Defendants' reply brief–particularly the 

exhibits related to Cause No. DV-98-055. 

¶11 Plouffe contends that the District Court erred when it granted 

Defendants' motion to dismiss in reliance on materials other than 

his complaint. Plouffe acknowledges that the District Court could 

have considered those exhibits by converting Defendants' motion to 

a motion for summary judgment; however, Plouffe contends that in 

that event, he would have been entitled to proper notice of the 

court's intention to do so as required by Rule 12(b), M.R.Civ.P. 

¶12 Defendants contend that the District Court did not err because 

it was entitled to take judicial notice of the previous judgment 

pursuant to Rule 201, M.R.Evid., without converting the motion to 

one for summary judgment. Defendants further contend that to the 

extent there was error, it was harmless and that Plouffe waived his 

objection to the additional exhibits by responding to Defendants' 

reply brief. 
6 

¶13 We have recognized that "[a] motion to dismiss under Rule 12(b)(6), M.R.Civ.P., 

allows the District Court to only examine whether 'a claim has been adequately stated in the 

complaint.'" Hoveland v. Petaja (1992), 252 Mont. 268, 270, 828 P.2d 392, 393, (quoting 

Gebhardt v. D.A. Davidson & Co. (1983), 203 Mont. 384, 389, 661 P.2d 855, 857.) 

Furthermore, the District Court's examination is limited to the content of the complaint. 

Hoveland, 252 Mont. at 270, 828 P.2d at 393 (citing Gebhardt, 203 Mont. at 389, 661 P.2d 

at 857). "The effect of such a motion is admitting to all the well pleaded allegations in the 

complaint and it should not be dismissed 'unless it appears beyond a reasonable doubt that the 

plaintiff can prove no set of facts which would entitle him to relief.'" Hoveland, 252 Mont. at 

270-71, 893 P.2d at 393 (quoting Gebhardt, 203 Mont. at 389, 893 P.2d at 858). 

¶14 In this case it is clear that the District Court considered 

matters in addition to Plouffe's complaint, including the exhibits 

attached to the Defendants' reply brief. Whether, in fact, 

Plouffe's complaint was barred by principles of res judicata, as 

the District Court concluded, could not be determined by examining 

the allegations in the complaint and assuming them to be true. It 

could only be determined by considering pleadings from other 

proceedings, court decisions and records of administrative 

proceedings, and then comparing them to the allegations and parties 

in this complaint. 

¶15 Before principles of res judicata bar a cause of action, four 

factors must be considered: the identity of the current and 

previous parties; the subject matter of the current and prior 

claim; the identity of the current and previous issues; and the 
7 

capacity of the current and previous parties with regard to the 

subject matter and issues. See Grenz v. Fire & Cas. of 

Connecticut, 2001 MT 8, ¶ 14, 304 Mont. 83, ¶ 14, 18 P.3d 994, ¶ 

14. Those facts could not be determined from the allegations of 

Plouffe's complaint. The Defendants were obviously aware of that 

problem when, on August 23, 2001, they filed a reply brief in 

support of their motion to which they attached 151 pages of 

exhibits. At that point, the District Court could have either 

ignored the Defendants' exhibits and decided the Defendants' motion 

based on the rules that pertain to motions to dismiss (which would 

have required denial of the motion), or it could have converted 

Defendants' motion to a motion for summary judgment pursuant to 

Rule 12(b), M.R.Civ.P. Rule 12(b), M.R.Civ.P. provides: 

If, on a motion asserting the defense numbered (6) to 

dismiss for failure of the pleading to state a claim upon 

which relief can be granted, matters outside the pleading 

are presented to and not excluded by the court, the 

motion shall be treated as one for summary judgment and 

disposed of as provided in Rule 56, and all parties shall 

be given reasonable opportunity to present all material 

made pertinent to such motion by Rule 56. [Emphasis 

added.] 

We have recognized that when the District Court converts a motion 

to dismiss to a motion for summary judgment, as contemplated by 

Rule 12(b), M.R.Civ.P., the District Court must provide notice to 

the parties of its intention to do so. Hoveland, 252 Mont. at 271, 

828 P.2d at 393; State ex rel. Dept. of H.& E.S. v. City of 

Livingston (1976), 169 Mont. 431, 436, 548 P.2d 155, 157. "The 

purpose of notice is to allow the parties a reasonable opportunity 

to present all material made pertinent to the motion and avoid 

surprise." Hoveland, 252 Mont. at 271, 828 P.2d at 393-94. This 
8 

includes an "opportunity to produce additional facts by affidavit 

or otherwise which would create a genuine issue of material fact to 

preclude summary judgment under Rule 56, M.R.Civ.P." Hoveland, 252 

Mont. at 271, 828 P.2d at 394 (citation omitted). We conclude that 

the District Court erred when it failed to provide notice to 

Plouffe of its intention to consider materials outside of Plouffe's 

pleading and convert Defendants' motion to dismiss to a motion for 

summary judgment. 

¶16 We decline to make an exception for facts such as those in 

this case which may be judicially noticed. Judicial notice in this 

matter involves taking notice of "matters outside the pleading," as 

explained in Rule 12(b), M.R.Civ.P. The rule expressly mandates 

that in such an event all parties should have an opportunity to 

present additional evidence. Judicial notice cannot circumvent the 

notice requirement in Rule 12(b), M.R.Civ.P., in this case. 

¶17 We also note that this decision is not inconsistent with our 

decision in Glickman. In Glickman, we affirmed a District Court's order 

granting a defendant's Rule 12(b)(6), M.R.Civ.P., motion on the grounds that the cause of 

action was barred by principles of res judicata. Glickman, ¶ 21. However, in Glickman, the 

plaintiff's complaint was a collateral attack on previous actions to quiet title and an action for 

a declaratory judgment "regarding the validity of the judgments, decrees of foreclosure, and 

the sheriff's sales" of the subject property. Glickman, ¶ 8. Plouffe's complaint does not 

challenge or present a collateral attack on a prior judgment, but makes factual allegations of 

tortious conduct by the Defendants. Under these circumstances, the District Court could not 
9 

dismiss Plouffe's complaint without first converting the Defendants' motion to a motion for 

summary judgment. The District Court's failure to do so, and failure to provide notice to 

Plouffe of its intent to do so, was error. 

¶18 Finally, it is not correct that Plouffe acquiesced in the 

procedural irregularity which is the subject of his appeal. In 

response to the Defendants' motion to dismiss, Plouffe filed a 

brief in which he argued that for purposes of the Defendants' 

motion, the allegations in his complaint had to be taken as true 

and that the facts relied on by the Defendants are not admitted for 

purposes of a motion to dismiss. In response to the Defendants' 

reply brief and 151 pages of extraneous documentation, Plouffe 

argued as follows: 

The Defendants have attached several exhibits to their 

reply brief, as their motion was not a motion for summary 

judgment, their exhibits are outside of the pleadings and 

should not be considered. 

¶19 In spite of the fact that he was a pro se litigant without the 

benefit of legal advice, Plouffe could not have more properly 

objected to the District Court's consideration of the Defendants' 

151 pages of extraneous documentation than he did in response to 

the Defendants' reply brief. Procedurally, Plouffe did everything 

correctly. 

¶20 For the foregoing reasons, the District Court's Order on 

Motion to Dismiss is reversed and remanded for further proceedings 

consistent with this Opinion.

/S/ TERRY N. TRIEWEILER 
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We Concur: 

/S/ W. WILLIAM LEAPHART 

/S/ PATRICIA COTTER 

/S/ JIM REGNIER 

/S/ JAMES C. NELSON 
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Chief Justice Karla M. Gray, dissenting. 

¶21 I respectfully dissent from the Court's opinion. The District 

Court did not convert the Rule 12(b)(6) motion to dismiss for 

failure to state a claim upon which relief could be granted to a 

motion for summary judgment without notice. Indeed, it properly 

entered its order granting the defendants' motion to dismiss based 

on the res judicata bar to the availability of relief in this case. 

¶22 I agree entirely with the standard of review stated by the 

Court and with the long-established principle that, in considering 

a Rule 12(b)(6) motion, all well-pleaded allegations of fact in the 

complaint must be taken as true. I also agree that such a motion 

cannot properly be granted unless it appears the plaintiff can 

prove no set of facts which would entitle him to relief. Contrary 

to the Court's opinion, however, our case law is clear that res 

judicata--which necessarily includes review of matters outside the 

complaint--can serve as a legal bar to well-pleaded allegations 

taken as true. We have so held in at least two cases, only one of 

which the Court addresses and erroneously distinguishes. 

¶23 Glickman is a 1998 decision which is addressed in the Court's 

opinion. There, we defined the doctrine of res judicata as 

"prevent[ing] a party from re-litigating a matter that the party 

has already had an opportunity to litigate. It is based on the 

public policy that there must be some end to litigation." When the 

four res judicata criteria are met--an issue not before us in the 

present case--a claim is res judicata. We ultimately held that res 

judicata barred Glickman's claim and affirmed the district court's 
12 

grant of the defendants' Rule 12(b)(6) motion on that basis. See 

Glickman, ¶ 21. In other words, because Glickman had had an 

earlier opportunity to litigate his claim, his claim was barred as 

a matter of law because no relief could be granted. 

¶24 The Court attempts to distinguish the present case from 

Glickman on the basis that, in that case, the plaintiff's complaint 

was a collateral attack on a prior judgment, while in this case 

Plouffe makes factual allegations of tortious conduct by the 

defendants. This is a distinction without a difference. The 

critical point is that Plouffe's allegations of tortious conduct 

were previously litigated, with an outcome adverse to him. Thus, 

this case also is a collateral attack on an earlier judgment in 

which Plouffe had made--as the District Court stated--"verbatim" 

allegations against the defendants. Consequently, pursuant to 

Glickman, res judicata is a proper basis for a motion to dismiss 

for lack of available relief and, as in Glickman, the District 

Court in the present case properly premised its grant of the Rule 

12(b)(6) motion to dismiss on res judicata. 

¶25 Prior to Glickman and cited therein, we decided Loney v. 

Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 905 P.2d 

158. The issue before this Court was whether the trial court erred 

in dismissing Loney's complaint pursuant to Rule 12(b)(6) on the 

basis that the claim was barred by the doctrine of res judicata. 

Loney, 273 Mont. at 509, 905 P.2d at 160. We ultimately held that, 

Loney having had an opportunity to litigate his claim in an earlier 

proceeding, res judicata barred his raising the claim and the 

district court did not err in granting the motion to dismiss on res 
13 

judicata grounds. Loney, 273 Mont. at 510-11, 905 P.2d at 161. In 

Plouffe's case, the propriety of applying res judicata is even more 

clear, since the matters at issue actually were previously 

litigated. Again, res judicata can properly bar a claim even when 

well-pled allegations are taken as true. 

¶26 For these reasons, it is my view that the District Court did 

not improperly convert the motion to dismiss to a motion for 

summary judgment. Indeed, no such conversion was necessary to 

apply the res judicata legal bar. I would conclude the District 

Court properly applied res judicata in the present case because, 

taking Plouffe's allegations as true, no relief is available for 

his claims. Consequently, I would affirm the District Court's 

grant of the Rule 12(b)(6) motion to dismiss and I dissent from the 

Court's failure to do so. 

/S/ KARLA M. GRAY 

Justice Jim Rice joins in the foregoing dissenting opinion. 

/S/ JIM RICE