John Benson v. Ann Kemske ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2943
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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
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Appeal from United States District Court
for the District of Minnesota
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Submitted: August 31, 2021
Filed: September 7, 2021
[Unpublished]
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Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
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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.
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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.
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