John Benson v. Ann Kemske, No. 20-2943 (8th Cir. 2021)
Annotate this CaseCourt Description: [Per Curiam - Before Shepherd, Grasz, and Kobes, Circuit Judges] Civil case - Torts. Defendants properly raised the defense of res judicata in their motion to dismiss; dismissal of plaintiffs' tort claims was proper.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-2943 ___________________________ John Benson; Brian Benson lllllllllllllllllllllPlaintiffs - Appellants v. Family Tree Corporation, Inc.; Desert Partners IV, L.P. lllllllllllllllllllllDefendants Ann Kemske; Jon Kemske lllllllllllllllllllllDefendants - Appellees Brigham Oil & Gas, LP; Oasis Petroleum Incorporated lllllllllllllllllllllDefendants Jodee Lawler; Carolyn Probst; Judge Robin Schmidt lllllllllllllllllllllMovants ____________ Appeal from United States District Court for the District of Minnesota ____________ Submitted: August 31, 2021 Filed: September 7, 2021 [Unpublished] ____________ Before SHEPHERD, GRASZ, and KOBES, Circuit Judges. ____________ PER CURIAM. In this diversity action, Minnesota residents John and Brian Benson appeal the district court’s1 grant of the defendants’ motion to dismiss based on res judicata. We affirm. To begin, we conclude the defendants properly raised the defense of res judicata in their motion to dismiss. See C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 763-64 (8th Cir. 2012) (res judicata may be raised as affirmative defense in motion to dismiss; Federal Rule of Civil Procedure 12(b)(6) dismissal appropriately based on affirmative defense apparent from face of the complaint, public records, and materials embraced by the complaint). Further, we need not reach the Bensons’ claim for declaratory relief argument because they did not raise it in their response to the motion to dismiss and instead urged the district court to accept the magistrate judge’s report and recommendation concluding the claim was barred by claim preclusion. See Ridenour v. Boehringer Ingelheim Pharms., Inc., 679 F.3d 1062, 1067 (8th Cir. 2012) (A party “must present all his claims squarely to the magistrate judge . . . to preserve them for review.”). Finally, after careful de novo review, we conclude that dismissal of the Bensons’ tort claims was proper. See Laase v. County of Isanti, 638 F.3d 853, 856 (8th Cir. 2011) (reviewing de novo the grant of motion to dismiss for failure to state a claim based on res judicata and relying on the law of forum that rendered first judgment to control res judicata analysis); see also Finstad v. Beresford Bancorp., 1 The Honorable Michael J. Davis, United States District Judge for the District of Minnesota, adopting in part the report and recommendation of the Honorable David T. Schultz, United States Magistrate Judge for the District of Minnesota. -2- 831 F.3d 1009, 1013 (8th Cir. 2016) (noting elements of claim preclusion under North Dakota law). Accordingly, the judgment of the district court is affirmed. ______________________________ -3-
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