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
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.
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¶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.
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¶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
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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
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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
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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
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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
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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
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