* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-31178

EDWARD MILLER

Plaintiff-Appellant

v.

NATIONWIDE LIFE INSURANCE CO.

Defendant-Appellee

Appeals from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:06-CV-02334

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

The issue in this case is whether the district court erred in granting the

Rule 12(b)(6) motion of Defendant-Appellee Nationwide Life Insurance Company

(“Nationwide”) to dismiss Plaintiff-Appellant Edward Miller’s (“Miller”) breach

of contract and Securities Act claims for failure to state a claim and res judicata.

We REVERSE and REMAND the case to the district court for further

proceedings. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 6, 2008

Charles R. Fulbruge III

Clerk
No. 06-31178

2

Factual and Procedural Background

In 2001, Miller purchased two variable annuity contracts from Nationwide

for roughly $1.4 million. Miller chose these particular annuities because they

provided him a great degree of control over the types of securities in which he

invested and guaranteed his ability to quickly and economically manage his

investments. The annuities, which are comprised of various underlying subaccounts, allow owners like Miller to quickly and without charge select and

change the particular sub-accounts into which their funds are placed. To

facilitate such active fund management, Miller’s annuity contract, styled

“Certificate Agreement,” guarantees him the right to “transfer variable assets

among various funds without charge” and “make telephone exchanges where

permitted by state law.” The Certificate Agreement also explicitly states “your

[Miller’s] rights under this Certificate Agreement cannot be taken away from

you.” 

Miller exercised his contract rights and actively transferred assets among

the sub-accounts underlying his annuities, but, contrary to the contractual

language, in 2002, Miller began incurring fees for these transfers. In 2003,

Miller filed a class action, separate from the instant suit, against Nationwide

(the “2003 Suit”), alleging that Nationwide’s imposition of these transfer-fee

charges violated securities laws and represented a breach of contract. See Miller

v. Nationwide Ins. Co., No. Civ. A. 03-1236, 2003 WL 22466236 (E.D. La. Oct. 29,

2003). The district court in the 2003 Suit dismissed Miller’s securities law

claims as prescribed and dismissed the breach of contract claim pursuant to the

Securities Litigation Uniform Standards Act (“SLUSA”), 15 U.S.C. § 77(p), which

mandates dismissal of any class action raising state law misrepresentation

claims concerning a covered security. See id. at *6. Further, the district court

found that Miller’s breach of contract claim against Nationwide should also fail
No. 06-31178

1 Miller’s present 2006 Suit is an individual suit, not a class action.

2

In his complaint, Miller actually brought four claims against Nationwide, but Miller

stipulated to dismiss one of the claims. Thus, only the three claims listed above are relevant

to this appeal.

3

because “documents in the public record evidence the fact that Nationwide was

not responsible for imposing the fees in question.” Id. Thus, the district court

dismissed all of Miller’s claims “with prejudice.” Id. Miller appealed the

judgment, and a separate panel of this court affirmed the district court’s

dismissal. See Miller v. Nationwide Ins. Co., 391 F.3d 698, 703 (5th Cir. 2004).

Despite the unsuccessful 2003 Suit, Miller carried on his relationship with

Nationwide and continued to trade sub-accounts within his annuities; however,

Miller encountered further obstacles to his management of the annuities as

Nationwide imposed additional restrictions on his sub-account transfers. For

example, in 2004 Nationwide informed Miller that it was limiting the number

of telephone and internet transfers he could make to twenty per year. Also,

Miller claims that Nationwide failed to provide him with a prospectus, which

outlined new transfer fees, dated May 1, 2005, until sometime after June 7,

2005, and Miller alleges that this delay caused him to incur a substantial cost

in transfer fees.

In 2006, Miller brought the present suit against Nationwide (the “2006

Suit”), leading to the instant appeal.1In the 2006 complaint, Miller alleged: 1)

that Nationwide breached the Certificate Agreement by charging a fee for

transferring assets among various funds (“transfer fees claim”), 2) that

Nationwide breached the Certificate Agreement by limiting his right to make

transfers via telephone (“telephone transfer claim”), and 3) that Nationwide

violated the Securities Act of 1933 by failing to timely provide Miller with its

May 1, 2005 prospectus (“late prospectus claim”).2
No. 06-31178

3 Specifically, the district court stated “I’m going to go ahead and rule on the first cause

of action that I do feel, regardless of whether res judicata applies, . . . that the first cause of

action should be dismissed under 12(b)(6).”

4 The district court stated “this was dismissed with prejudice . . . . I just feel that res

judicata applied.” 

4

Before the district court, Nationwide filed a motion to dismiss these claims

for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and as

barred by res judicata. During a hearing on the matter, the district court

granted Nationwide’s motion and dismissed all of Miller’s claims in an oral order

unaccompanied by written opinion. The district court dismissed Miller’s transfer

fees claim under Rule 12(b)(6)3 and dismissed the other two claims, the

telephone transfer claim and the late prospectus claim, on res judicata grounds.4

Miller now appeals the district court’s dismissal of all three claims. 

Analysis

This court reviews de novo a district court’s disposition of a motion to

dismiss either under Rule 12(b)(6) for failure to state a claim or for res judicata.

See Test Master Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005);

Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot &

Wansbrough, 354 F.3d 348, 351 (5th Cir. 2003). Applying this standard, we turn

to Miller’s claims. 

A. The Transfer Fees Claim and Telephone Transfer Claim

In reviewing the grant of a motion to dismiss under Rule 12(b)(6), we take

all the facts alleged in the complaint as true. See Kennedy v. Chase Manhattan

Bank USA, N.A., 369 F.3d 833, 839 (5th Cir. 2004). Further, we construe the

complaint in the light most favorable to the plaintiff and draw all reasonable

inferences in the plaintiff’s favor. See Lovick v. Ritemoney, Ltd., 378 F.3d 433,
No. 06-31178

5

437 (5th Cir. 2004); see also Priester v. Lowndes County, 354 F.3d 414, 418 (5th

Cir. 2004) (noting that motions to dismiss are viewed with disfavor and rarely

granted). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face.” See Bell Atl.

Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). 

Miller’s complaint alleges that “Nationwide breached the contract by

charging Miller a fee for transferring variable assets among various funds”

despite a contractual guarantee that no transfer fees would be charged.

Identifying specific instances of Nationwide allegedly charging transfer fees,

Miller claims that “Nationwide reduced the contract balance [of his annuity] by

an amount equal to one percent (1%) of the amount transferred out of a subaccount . . . .”

Nationwide argues that Miller’s complaint fails to state a claim because

documents in the public record show that Nationwide did not charge the fees in

question. Specifically, Nationwide contends that the annuities’ prospectuses

from 2002 and beyond revealthatthe underlying mutual funds, not Nationwide,

charged the complained-of transaction fee. For example, a 2002 supplemental

prospectus states that “some underlying mutual funds may assess (or reserve

the right to assess) a short term trading fee . . . any short-term trading fees paid

are retained by the underlying mutual funds, not by Nationwide.” The District

Court accepted these arguments by Nationwide and thereupon dismissed

Miller’s transfer fees claim for failure to state a claim.

We cannot agree with the district court’s judgment, however, because the

complaint, viewed in the light most favorable to the plaintiff, pleads facts that

plausibly support a claim. Miller claims that Nationwide charged him

transaction fees, and he cites specific instances of Nationwide billing and

withdrawing money from his annuity account in payment of such fees, despite

contractual guarantees to the contrary. While Nationwide’s argument that the
No. 06-31178

5 As further evidence that there is a factual dispute best resolved by the district court

on remand, we note that, on February 5, 2008, Miller’s counsel submitted a letter to us

pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure detailing that the majority

of the mutual funds charging a fee to Nationwide’s annuity holders have been, and are,

“managed by indirect subsidiaries of either Nationwide Mutual Insurance Company or

Nationwide Financial Services, Inc.”

6 See, e.g., Papasan v. Allain, 478 U.S. 265, 269 n.1 (1986) (“Although this case comes

to us on a motion to dismiss under Federal Rule of Civil Procedure 12(b), we are not precluded

in our review of the complaint from taking notice of items in the public record . . . .”); Fin.

Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006) (“[T]he court may . .

. rely on ‘public disclosure documents required by law to be, and that have been, filed with the

SEC, and documents that the plaintiffs either possessed or knew about and upon which they

relied in bringing the suit . . .’”) (internal citation omitted); Mahone v. Addicks Utility Dist, 836

F.2d 921, 924 n.1 (5th Cir. 1988); see also 5B Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 1357 n.1 (3d. ed 2008) (chronicling instances of courts considering

matters in the public record in evaluating 12(b)(6) motions). 

6

underlying mutual funds, not Nationwide, charged these fees may create a

disputed factual issue as to Miller’s allegations, resolution of such a factual

dispute is improper under a 12(b)(6) inquiry.5 At the 12(b)(6) stage, we take the

complaint as true and view the facts in the light most favorable to the Plaintiff

to determine whether a plausible claim has been made. See Kennedy, 369 F.3d

at 839; Lovick, 378 F.3d at 437. Miller alleges specific instances of Nationwide

billing his account, and though we may consider documents in the public record

in our 12(b)(6) evaluation of Miller’s complaint,6the public-record prospectuses

cited by Nationwide do not conclusively refute Miller’s allegations. Thus, we

hold that Miller’s complaint states a valid claim for relief and that dismissal of

the claim under Rule 12(b)(6) was improper.

Alternatively, Nationwide asserts that even if 12(b)(6) dismissal of Miller’s

claim was improper, the district court’s dismissal of the transfer fees claim

should be upheld because the claim is barred by res judicata. However, we

conclude that it is not barred by res judicata because Miller has never received

a final judgment on the merits of his transfer fees claim.
No. 06-31178

7 Miller’s claim based on the Securities Act of 1933, 15 U.S.C. § 77a, triggers federalquestion jurisdiction, see 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction

of all civil actions arising under the Constitution, laws, or treaties of the United States”), and

federal supplemental jurisdiction extends to Miller’s breach of contract claims. See 28 U.S.C.

§ 1367(a) (“[I]n any civil action of which the district courts have original jurisdiction, the

district courts shall have supplemental jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution”).

7

We apply federal res judicata principles because this case falls under

federal-question jurisdiction.7 See Blonder-Tongue Labs., Inc. v. Univ. of Ill.

Found., 402 U.S. 313, 324 n.12 (1971) (“In federal-question cases, the law

applied is federal law. This Court has noted, ‘It has been held in non-diversity

cases since Erie R. Co. v. Tompkins, that the federal courts will apply their own

rule of res judicata.’”) (internal citations omitted).

Under federal law, res judicata bars relitigation of an issue if four

conditions are met: 1) the parties in the later action are identical to the parties

in the prior action, 2) judgment in the prior action was rendered by a court of

competent jurisdiction, 3) the prior action concluded with a final judgment on

the merits, and 4) the same claim or cause of action was involved in both suits.

See United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994). If these

conditions are satisfied, a plaintiff is prohibited “from raising any claim . . . in

the later action that was or could have been raised in support of . . . the cause of

action asserted in the prior action.” Id. at 310 (emphasis original). 

Regarding his transfer fees claim, Miller concedes that three of these

elements are met: the parties are the same, the 2003 Suit was before a court of

competent jurisdiction, and the same breach of contract claim based on transfer

fees was broughtin the 2003 Suit. Miller argues, however, that res judicata does

not bar his presenttransfer fees claim because in the 2003 suit he never received

a final judgment on the merits of this claim, which was dismissed as precluded

under SLUSA. Miller’s argument is persuasive because our precedent
No. 06-31178

8

demonstrates that the SLUSA dismissal of his claim constitutes a jurisdictional

dismissal rather than a judgment on the merits.

Federal Rule of Civil Procedure 41(b), provides that “[u]nless the dismissal

order states otherwise, a dismissal under this subdivision (b) and any dismissal

not under this rule--except one for lack of jurisdiction, improper venue, or failure

to join a party under Rule 19--operates as an adjudication on the merits.” Id.

(emphasis added). Thus, Rule 41(b) contains an exception providing that claims

dismissed for lack of jurisdiction are considered not to have been dismissed on

the merits and therefore not to hold res judicata effect. See 18A Charles A.

Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure

§ 4436 n.1 (2d ed. 2002) (“There is little mystery about the res judicata effects

of a judgment that dismisses an action for lack of subject-matter or personal

jurisdiction or for improper venue. Civil Rule 41(b) provides that a dismissal for

lack of jurisdiction or improper venue does not operate as an adjudication upon

the merits.”); see also id. (“Although a dismissal for lack of jurisdiction does not

bar a second action as a matter of claim preclusion, it does preclude relitigation

of the issues determined in ruling on the jurisdiction question.”). 

The Supreme Court has defined Rule 41(b)’s lack-of-jurisdiction exception

expansively to include rulings like the SLUSA dismissal of Miller’s 2003 transfer

fees claim. See Costello v. United States, 365 U.S. 265, 285 (1961); 18A Charles

A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and

Procedure § 4435 n.27 (2d ed. 2002). The Court expressly held that the lack-ofjurisdiction exception was not limited to “the fundamental jurisdictional defects

which render a judgment void and subject to collateral attack, such as lack of

jurisdiction over the person or subject matter”; instead,the Court broadened the

exception to cover “those dismissals which are based upon a plaintiff’s failure to

comply with a precondition requisite to the Court’s going forward to determine

the merits of his substantive claim.” Costello, 365 U.S. at 285.
No. 06-31178

8 Because the instant suit is not a class action, it is not similarly precluded by SLUSA.

See 15 U.S.C. § 77p.

9 Though the district court in the 2003 Suit commented on Miller’s transfer fees claim

in dicta, that had no impact on our res judicata analysis. In the 2003 Suit, the district court

offered two reasons for dismissing Miller’s transfer-fees breach of contract claim. First, the

district court found that Nationwide was not responsible for imposing the fees in question and

second the court held that SLUSA’s preclusion provision, 15 U.S.C. § 77p(b), mandated that

the action be dismissed. See Miller, 2003 WL 22466236 at *6. Considering the 2003 Suit on

appeal, a panel of this court addressed only whether SLUSA mandated dismissal of Miller’s

breach of contract claim. See Miller, 391 F.3d at 702. 

The district court’s comment on the merits of the 2003 claim has no res judicata effect

in the present suit because once the district court determined that Miller’s breach of contract

9

Under this standard, the dismissal of Miller’s 2003 transfer fees claim

constitutes a jurisdictional dismissal because it was based on Miller’s “failure to

comply with a precondition requisite to the Court's going forward to determine

the merits of his substantive claim,” id., viz., Miller’s attempt to bring a class

action claim precluded by 15 U.S.C. § 77p(b).8 See Kircher v. Putnam Funds

Trust, 547 U.S. 633, 644 (2006) (“If the action is precluded [under SLUSA],

neither the District Court nor the state court may entertain it, and the proper

course is to dismiss”). Accordingly, the panel of this court that considered

Miller’s 2003 transfer fees claim found that SLUSA mandated dismissal of

Miller’s breach of contract claim and precluded any evaluation of its merits. Id.

In a footnote, the panel specifically stated as much:

We express no opinion as to whether Miller . . . had a valid

claim for state law breach of contract. We hold only that the statute

of limitations ran as to any Securities Act claim and that SLUSA

required dismissal of the state contract claim because plaintiff

included with his state contract claim allegations of an “untrue

statement.”

Id. at 702 n.3. 

Thus, SLUSA prevented our prior panel from reaching the substance of

Miller’s claim,9so the dismissal was “jurisdictional” for purposes of Rule 41(b)
No. 06-31178

action was precluded under SLUSA, it was forced to dismiss the claim for lack of jurisdiction.

See Kircher, 547 U.S. at 644 (“If the action is precluded [under SLUSA], neither the District

Court nor the state court may entertain it, and the proper course is to dismiss”). Thus, the

district court had no authority to reach the merits of the issue. The prior panel opinion in the

2003 Suit implicitly recognized as much, limiting its holding regarding Miller’s transfer fees

claim to dismissal based on SLUSA preclusion and expressly declining to address the merits

of the claim. See Miller, 391 F.3d at 702 n.3. 

Thus, because the district court in the 2003 Suit could not pass on the merits of Miller’s

SLUSA claim, any statement in the district court’s opinion regarding the merits of Miller’s

SLUSA claim was dicta, see Int’l Truck and Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir.

2004) (“[a] statement is dictum if it could have been deleted without seriously impairing the

analytical foundations of the holding and being peripheral, may not have received the full and

careful consideration of the court that uttered it.”) (internal punctuation omitted), and dicta

has no res judicata effect. See Pegues v. Morehouse Parish School Bd., 706 F.2d 735, 738 (5th

Cir. 1983) (holding that dicta from a prior panel’s consideration of a case could not serve as a

basis for res judicata in later consideration of the same case); cf. 18A Charles A. Wright,

Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4436 (2d ed. 2002)

(“[A] determination by an appellate court that the action must be dismissed for lack of

jurisdiction ofthat court system prevents any use of the trial court findings as issue preclusion

. . . .”). 

10

and res judicata. See Costello, 365 U.S. at 285; 18A Charles A. Wright, Arthur

R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4435 n.27 (2d

ed. 2002). As such, it does not constitute a final judgment on the merits and

cannot bar Miller’s present suit. 

Nationwide argues that regardless of the grounds upon which Miller’s

prior claim was dismissed,the dismissal of Miller’s suit “with prejudice” suffices

to trigger a res judicata bar to the claim. Essentially, Nationwide urges that we

hold that any “with prejudice” comment associated with a dismissal categorically

triggers a res judicata bar. However, our precedent does not demonstrate such

an unwavering categorical approach, and we decline to adopt one here. While

we have considered a dismissal with prejudice to indicate a final judgment on

the merits in most instances, see, e.g., Fernandez-Montes v. Allied Pilots Ass’n,

987 F.2d 278, 284 n.8 (5th Cir. 1993) (“[A] dismissal which is designated ‘with

prejudice’ is ‘normally an adjudication on the merits for purposes of res

judicata.’”), we have never held that a dismissal with prejudice is per se a final

judgment on the merits; rather we have found analogous jurisdictional
No. 06-31178

10 We note that this opinion does not endeavor to revisit or re-characterize the 2003

judgment as dismissed “without prejudice,” rather we hold that the “with prejudice” comment

appended to the dismissal of the 2003 suit has no res judicata effect in this instance. 

11

dismissals insufficient to serve as final judgments on the merits for res judicata

purposes. See, e.g., Darlak v. Bobear, 814 F.2d 1055, 1064 (5th Cir.1987)

(holding that a dismissal under the Eleventh Amendment is not “on the merits”

for res judicata purposes); Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 562

(5th Cir. 1983) (en banc) (holding, in a res judicata context, that “[d]ismissals for

want of jurisdiction are not decisions on the merits . . . .”). Moreover, our sister

circuits have consistently held that “with prejudice” designation does not

categorically create a res judicata bar. See, e.g., Adams v. Cal. Dept. of Health

Svc., 487 F.3d 684, 692 n.2 (9th Cir. 2007) (“[A]ccording res judicata effect to the

dismissal with prejudice of the second suit would be error in this case because

[plaintiff] would have been deprived of a full and fair opportunity to litigate her

first action.”); American Cyanamid Co. v. Capuano, 381F.3d 6, 17 (1st Cir. 2004)

(holding that a dismissal with prejudice contained in a consent decree is not a

final ruling on the merits); Ansari v. Bella Automotive Group, 145 F.3d 1270,

1272 (11th Cir. 1998) (holding that res judicata would not bar a second filing of

the same suit in state court when an action was dismissed “with prejudice” for

failure to meet an amount-in-controversy requirement); Kulinski v. Medtronic

Bio-Medicus, Inc., 112 F.3d 368, 372–373 (8th Cir. 1997) (holding that a “with

prejudice” dismissal for lack of subject-matter jurisdiction did not preclude a

properly presented second action on the same claim). As discussed above, the

dismissal of Miller’s transaction fees claim was based on a lack of jurisdiction,

so regardless of the “with prejudice” designation,10 the dismissal was not a final

judgment on the merits. Cf. Darlak, 814 F.2d at 1064; Nilsen, 701 F.2d at 561.

Thus, the claim is not barred by res judicata.
No. 06-31178

11 Nationwide contends thatMiller’s telephone transfer claim shouldbe dismissed under

Rule 12(b)(6), but such an argument is meritless. Miller pled his telephone transfer claim

sufficiently to survive a 12(b)(6) challenge by alleging that 1) his contract with Nationwide

provides him the right to make telephone exchanges where permitted by state law and 2) after

January of 2005, Nationwide breached its contract by limiting telephone exchanges and

refusing to accept phone orders. 

12

For the same reasons, we hold that res judicata does not bar Miller’s

telephone transfer claim. Miller’s breach of contracts claims in the 2003 Suit

were resolved on jurisdictional grounds rather than with a final judgment on the

merits, so the 2003 suit has no res judicata effect on Miller’s present breach-ofcontract based telephone transfer claim. 

Because Miller’s transaction fees claim and telephone transfer claim

properly state claims under Rule 12(b)(6)11 and are not barred by res judicata,

the district court erred in dismissing them.

B. Late Prospectus Claim 

The district court also erred in dismissing Miller’s late prospectus claim,

which asserts that Nationwide violated the Securities Act of 1933, 15 U.S.C. §

77a et seq, by failing to timely provide a prospectus as required by law. Though

Miller bases his late prospectus claim on Nationwide’s alleged actions in May

and June of 2005, the district court held that the 2003 Suit, which concluded in

a Fifth Circuit opinion rendered on November 19, 2004, creates a res judicata

bar to Miller’s claim. However, this holding contravenes the basic res judicata

principle that a matter can be barred only if the parties have had full and fair

opportunity to litigate the claim. See, e.g., Liberto v. D.F. Stauffer Biscuit Co.,

Inc., 441 F.3d 318, 328 n.31 (5th Cir. 2006) (“Judicial finality-the predicate for

res judicata-arises only from a final decision rendered after the parties have

been given a reasonable opportunity to litigate a claim before a court of

competent jurisdiction.” ) (citation omitted); Harper Macleod Solicitors v. Keaty
No. 06-31178

12 Nationwide also contends that Miller’s late prospectus claim should be dismissed

under Rule 12(b)(6), but again the argument is meritless. Miller pled his late prospectus claim

sufficiently to survive a 12(b)(6) challenge by alleging that 1) he transferred assets to purchase

certain bonds in June 2005, 2) at that time, Nationwide had not yet provided him with a

prospectus, dated May, 2005, which indicated that Nationwide would charge a fee for the sale

of those particular bonds, 3) he sold the bonds and incurred the fee, and 4) he would not have

purchased the particular bonds if he were aware of the fee. See 15 U.S.C. § 77l. 

13

& Keaty, 260 F.3d 389, 395 (5th Cir. 2001) (“Traditional rules of preclusion as

adopted in federal case law-whether under the doctrine of collateral estoppel or

res judicata-require that the party to be estopped from re-litigating a claim have

had a full and fair opportunity to litigate the issue”) (emphasis added). Since

judgmentin the 2003 Suit was rendered before the facts underlying Miller’s late

prospectus claim arose in 2005, Miller cannot be said to have had “a full and fair

opportunity to litigate the issue,” Harper Macleod Solicitors, 260 F.3d at 395, so

res judicata cannot serve to bar his late prospectus claim.12

Conclusion

For the foregoing reasons we REVERSE the district court’s dismissal of

Miller’s claims and REMAND for proceedings consistent with this opinion.