Republic Building Company, Inc.; Michael Torres v. Charter Township of Clinton, Michigan

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0209p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPUBLIC BUILDING COMPANY, INC.; MICHAEL
TORRES,
Plaintiffs-Appellants,
v.
CHARTER TOWNSHIP OF CLINTON, MICHIGAN,
Defendant-Appellee.
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No. 22-1950
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:21-cv-12864—Gershwin A. Drain, District Judge.
Argued: June 13, 2023
Decided and Filed: September 7, 2023
Before: GILMAN, BUSH, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Cindy Rhodes Victor, KUS RYAN, LLC, Auburn Hills, Michigan, for Appellants.
Matthew J. Zalewski, ROSATI SCHULTZ JOPPICH & AMTSBUECHLER, PC, Farmington
Hills, Michigan, for Appellee. ON BRIEF: Cindy Rhodes Victor, KUS RYAN, LLC, Auburn
Hills, Michigan, for Appellants. Matthew J. Zalewski, ROSATI SCHULTZ JOPPICH &
AMTSBUECHLER, PC, Farmington Hills, Michigan, for Appellee.
BUSH, J., delivered the opinion of the court in which GILMAN, J., joined in full.
READLER, J. (pp. 11–13) delivered a separate opinion concurring in part and dissenting in part.
>

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 2
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. Plaintiffs Republic Building Company, Inc. and Michael
Torres sought to develop condominiums at a property acquired from University Builders, Inc.
But there was one problem: they needed rezoning approval from the Charter Township of
Clinton, Michigan (the Township). After a protracted dispute over rezoning, plaintiffs sued the
Township in Michigan state court to gain approval. The state court entered a consent judgment
that dictated the conditions for rezoning the property and completing the project. Years later,
after experiencing several setbacks, plaintiffs sought to amend the consent judgment, but the
Township refused. Plaintiffs then filed this suit in federal district court, alleging several
constitutional violations as well as a breach-of-contract claim. The Township moved to dismiss
for lack of subject-matter jurisdiction, which the district court granted, finding plaintiffs’
complaint to be a collateral attack on the consent judgment. Contrary to the district court’s
opinion, it did not lack subject-matter jurisdiction, but dismissal was nevertheless proper for
failure to state a claim based on res judicata. We therefore AFFIRM.
I.
The events underlying this dispute began in 1999, when University Builders, Inc.
purchased property located in the Township to build condominiums (the Project). After this
purchase,1 plaintiffs requested that the Township Planning Commission rezone the property to
allow the Project to move forward. Though the Planning Commission initially recommended
approving the request, the Township Board of Trustees denied it. Plaintiffs responded by suing
in Macomb Circuit Court. That case ultimately settled, and plaintiffs and the Township agreed
to a consent judgment, which the court finalized in December 2003.
The consent judgment permitted plaintiffs to proceed with the Project and outlined
conditions for doing so. Among those conditions, plaintiffs had to begin construction within six
1According to the Amended Complaint, Republic Building Company, Inc. is the successor entity to
University Builders, Inc.

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 3
months, or the Township would be entitled to damages. Indeed, the Project needed to be
completed in “strict conformity” with the consent judgment, unless the parties amended it. The
consent judgment provided that any amendments needed approval from both parties and had to
be in writing. Should conflicts arise concerning the development of the Project, the consent
judgment would control. Notably, it provided that the Macomb County Circuit Court “retains
jurisdiction to interpret and enforce the terms and conditions of this Consent Judgment.”
In June 2005, plaintiffs purchased two additional parcels and, in 2006, submitted a
request for conditional rezoning to amend the original rezoning approved in the consent
judgment. The Township approved the request. But plaintiffs had yet to build anything at this
point. And the 2008 recession did them no favors, causing them to halt the Project indefinitely.
Plaintiffs allege that, some six years later, the Township’s attorney contacted a developer in
Macomb County to offer the property for purchase. Plaintiffs allege that they contacted the
Township to object, claiming that the Township had no right to offer the property.
The story picks back up five years later, in 2017, when plaintiffs tried to sell the property
to a third party. Plaintiffs requested an amendment to the consent judgment; the Township
responded, telling plaintiffs that they were in default of the original consent judgment because
they failed to start the Project within six months of the entry of the consent judgment. The
Township allegedly threatened litigation, but none came.
In January 2018, plaintiffs found yet another potential buyer. Plaintiffs again sought
amendment of the consent judgment, along with a new revised plan, which the Township denied.
After much back and forth, the parties came close to an agreement—the Township would agree
to an amendment in exchange for $73,000 in damages for plaintiffs’ alleged breach of the
consent judgment. Rejecting the Township’s offer, plaintiffs decided to sue in federal district
court.
In their complaint, plaintiffs claim that the Township violated their constitutional rights
and breached the consent judgment when it declined to amend the consent judgment, thereby
preventing plaintiffs from proceeding with the Project.

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 4
The Township moved to dismiss the case for lack of subject-matter jurisdiction. It
argued that plaintiffs’ complaint constitutes an improper collateral attack on the state-court
consent judgment. The district court construed the Township’s motion as a factual attack on
subject-matter jurisdiction. Ultimately, the district court granted the motion, finding that the
factual basis of plaintiffs’ complaint was indeed the consent judgment. Thus, according to the
court, the complaint amounted to an improper collateral attack on the consent judgment. The
court also found that comity and federalism principles favored dismissal.
Plaintiffs timely appealed.
II.
We review de novo a district court’s dismissal of an action for lack of subject-matter
jurisdiction. See Skatemore, Inc. v. Whitmer, 40 F.4th 727, 731 (6th Cir. 2022). When we find
that the district court erred in dismissing a case based on Rule 12(b)(1), but that dismissal would
have been proper under Rule 12(b)(6), we can affirm the district court on the alternative 12(b)(6)
ground rather than remanding the case. See Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247,
254 (2010); accord Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 424 n.2 (6th Cir.
2016); see also Lindke v. Tomlinson, 31 F.4th 487, 494 (6th Cir. 2022) (“While the parties here
have contended, and the district court decided, that the lack of adversity is a jurisdictional issue,
we could . . . affirm the district court on Rule 12(b)(6), not Rule 12(b)(1), grounds.” (citing
Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 569 (6th Cir. 2001)). As discussed below, we
find that the district court dismissed the case improperly under Rule 12(b)(1). But dismissal was
the proper result because, even though the district court had jurisdiction to hear the case, the
complaint was barred by principles of res judicata. Fed. R. Civ. P. 12(b)(6). We review de novo
claims potentially barred by res judicata. Ohio ex rel. Boggs v. City of Cleveland, 655 F.3d 516,
519 (6th Cir. 2011).
Federal district courts have “original jurisdiction of all civil actions arising under the
Constitution . . . of the United States.” 28 U.S.C. § 1331. Plaintiffs brought three claims
alleging federal constitutional-rights violations; namely, violations of the Due Process, Equal
Protection, and Takings Clauses. R.4, PageID#79–84. Their last claim is a state-law breach-of-

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 5
contract claim. Id., PageID#84–86. The district court, therefore, did have subject-matter
jurisdiction over plaintiffs’ alleged constitutional-rights violations. Id. And, because it had
federal-question jurisdiction over some of plaintiffs’ claims, the district court had discretion to
exercise supplemental jurisdiction over the state-law claim. See 28 U.S.C. § 1367(a).
Federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given
them.” Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 817–818 (1976). The
district court’s conclusion that it lacked subject-matter jurisdiction to hear this case because the
complaint constitutes an improper collateral attack on the state-court consent judgment was
therefore an erroneous application of that doctrine.
A collateral attack is “[a]n attack on a judgment in a proceeding other than on a direct
appeal.” United States v. Asakevich, 810 F.3d 418, 423 (6th Cir. 2016) (alterations and emphasis
in original) (quoting Black’s Law Dictionary 318 (10th ed. 2014)). Such an attack “seeks to
circumvent an earlier ruling of one court by filing a subsequent action in another court.” Pratt v.
Ventas, Inc., 365 F.3d 514, 519 (6th Cir. 2004). In this vein, collateral attacks exist where the
relief sought would, in some way, overrule another court’s ruling. See Popp Telcom v. Am.
Sharecom, Inc., 210 F.3d 928, 933 (8th Cir. 2000). Declining to entertain collateral attacks
promotes judicial efficiency and order.
As the Fourth Circuit stated:
The judicial system’s need for order and finality requires that orders of courts
having jurisdiction to enter them be obeyed until reversed, even if proper grounds
exist to challenge them. A challenge for error may be directed to the ordering
court or a higher court, as rules provide, but it may not be made collaterally unless
it is based on the original court’s lack of jurisdiction. These principles are firm
and long standing.
Spartan Mills v. Bank of Am. Ill., 112 F.3d 1251, 1255 (4th Cir. 1997) (citing Celotex Corp.
v. Edwards, 514 U.S. 300, 305–07 (1995)). Thus, unless a plaintiff alleges that the original court
lacked jurisdiction over the case, a court should decline to entertain a collateral attack on a
previous, valid judgment.

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 6
But this prohibition is not a jurisdictional one—it does not speak to the “court’s authority to
hear a given type of case” nor to “the extent to which a court can rule on the conduct of persons or
the status of things.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). Instead,
dismissal of a collateral attack is more in the nature of res judicata, see Bus. Dev. Corp. of S.C. v.
Rutter & Russin, LLC, 37 F.4th 1123, 1127 & 1129 (6th Cir. 2022), which requires us to “look to
the rules of res judicata in the forum that decided the first case.” See Talismanic Properties, LLC
v. City of Tipp, 742 F. App’x 129, 131 (6th Cir. 2018). In this case, that state is Michigan.2
Michigan courts have broadly applied res judicata to preclude “claims arising out of the
same transaction that could have been litigated in a prior proceeding, but were not.” Sewell
v. Clean Cut Mgmt., Inc., 621 N.W.2d 222, 225 (Mich. 2001). “A second action is barred when
(1) the first action was decided on the merits, (2) the matter contested in the second action was or
could have been resolved in the first, and (3) both actions involve the same parties or their
privies.” Id. (quoting Dart v. Dart, 597 N.W.2d 82, 88 (Mich. 1999)).
Res judicata applies where a consent judgment binds the parties from a previous action,
or their privies, in a subsequent action. See Baraga Cnty. v. State Tax Comm’n, 645 N.W.2d 13,
16 (Mich. 2002). Consent judgments are binding contracts and, under Michigan law, the goal of
the courts’ “interpretation of any contract is to honor the intent of the parties.” Sault Ste. Marie
Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 372 (6th Cir. 1998) (quoting Rasheed v.
Chrysler Corp., 445 N.W.2d 19, 29 n.28 (Mich. 1994)). In honoring consent judgments,
Michigan courts have acknowledged their finality and applied res judicata to potential collateral
attacks upon them. See Foster v. Foster, 983 N.W.2d 373, 380 (Mich. 2022); Sewell v. Clean
Cut Mgmt., Inc., 621 N.W.2d 222, 224–25 (Mich. 2001). This court has reached a similar
2The dissent claims that because the parties did not previously raise the issue of res judicata, we should
remand the case for the district court to consider the preclusion analysis. It is true that we rarely resolve an appeal
under Rule 12(b)(6) when the district court dismissed the case for lack of jurisdiction. However, the dissent
recognizes that we may reach the merits of a complaint when the district court's analysis supports Rule 12(b)(6)
dismissal, even if it claimed to be dismissing the case under Rule 12(b)(1). See Dissenting Op. at 2 (citing Morrison
v. Nat’l Austl. Bank, 561 U.S. 247, 254 (2010)). We find that this case falls within that exception. Although the
district court did not mention preclusion or res judicata in its analysis, the thrust of its opinion addressed the merits
question of whether the consent judgment barred plaintiffs’ claims under the collateral attack doctrine. The
substance of the district court’s opinion, despite its jurisdictional label, resolved merits issues and justifies our
conducting a preclusion analysis.

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 7
conclusion in other contexts. See Talismanic Properties, LLC, 742 F. App’x at 130 n.1
(acknowledging the preclusive effect of a settlement agreement where the court retained
jurisdiction to enforce the agreement); Blakely v. United States, 276 F.3d 853, 866 (6th Cir.
2002) (“A consent judgment, which has been freely negotiated by the parties and has been
approved by the court, has the full effect of final judgment for purposes of claim preclusion.”);
Schlegel Mfg. Co. v. USM Corp., 525 F.2d 775, 778 (6th Cir. 1975) (per curiam) (“The consent
decree represents more than a mere agreement between the parties, [because] [t]he District Court
received the agreement, signed it and ordered it entered as a final judgment.”).
Although our precedent has not addressed the precise issue of consent judgments that
contain a “retaining-jurisdiction” provision, cases from sister circuits inform our analysis. When
a consent judgment contains a provision stating that a court retains jurisdiction over its
interpretation and enforcement, that jurisdiction is presumed exclusive. See Flanagan v. Arnaiz,
143 F.3d 540, 544 (9th Cir. 1998) (original court’s jurisdiction over a settlement agreement
deemed exclusive where the reviewing court identified a “retaining-jurisdiction” provision);
United States v. Am. Soc’y of Composers (In re Karmen), 32 F.3d 727, 731–32 (2d Cir. 1994)
(consent judgment); Battle v. Liberty Nat’l Life Ins. Co., 877 F.2d 877, 880–81 (11th Cir. 1989)
(court order). Though these cases involved federal courts retaining jurisdiction where a litigant
sought to bring a collateral attack in state court, there is no reason why the same principle should
not hold where a state court retains jurisdiction and the attempted collateral attack is in federal
court. See Bates v. Twp. of Van Buren, 459 F.3d 731, 734 (6th Cir. 2006) (“The ‘Full Faith and
Credit statute,’ 28 U.S.C. § 1738, requires federal courts . . . to give state court judgments the
same preclusive effect those judgments would have in the rendering state’s courts.”)
Here, the consent judgment contains a “retaining-jurisdiction” provision providing
Macomb County Circuit Court jurisdiction over its interpretation and enforcement. We therefore
presume that the state court retains exclusive jurisdiction over the consent judgment. See
Flanagan, 143 F.3d at 540. Thus, a separate lawsuit filed in federal district court would
constitute a collateral attack on the consent judgment if that action required the district court in
some way to interpret or enforce it. See id.; Asakevich, 810 F.3d at 423; Popp Telcom, 210 F.3d
at 933.

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 8
The question that remains, therefore, is whether plaintiffs’ action requires the district
court to interpret or enforce the consent judgment. Plaintiffs bring four counts against the
Township: a Fourteenth Amendment Due Process violation, an Equal Protection violation, a
Takings Clause violation, and and claim for state-law breach of contract. We conclude that
consideration of plaintiffs’ claims would require the district court to interpret or enforce the
consent judgment.
For the Due Process claim, plaintiffs allege that the Township unconstitutionally deprived
them of unspecified federally protected rights, the clearest being their “property rights and liberty
interests.” As for the Equal Protection claim, plaintiffs allege much of the same, adding that they
“were treated adversely and differently than other property owners, who were similarly situated
to plaintiffs,” although their complaint does not identify any other property owners or how they
were disparately treated. Third, plaintiffs allege an unconstitutional taking based on the
Township “depriv[ing] plaintiffs of a valid property interest by its actions in refusing to allow
plaintiffs to develop the Subject Property.”3 Finally, plaintiffs allege breach of contract based
on, among other things, the Township’s “refus[al] to honor its obligations under the Consent
Judgment.”
Adjudicating the breach-of-contract claim would clearly require the district court to
interpret and enforce the consent judgment. A key feature of a breach-of-contract claim is
seeking a court’s enforcement of a contract where a party allegedly failed to uphold its
obligations under the contract. See Able Demolition v. Pontiac, 739 N.W.2d 696, 699–701 (Ct.
App. Mich. 2007). According to Michigan law, the consent judgment—a binding contract—
would need to be interpreted to enforce it. See Engler, 146 F.3d at 372.
That leaves the constitutional claims. Plaintiffs desired first to build a condominium
project on the property but, after initial roadblocks from the Township, needed to enter a consent
judgment to begin. Then, after several setbacks, plaintiffs sought rezoning and several
3Earlier in the Amended Complaint, plaintiffs also allege the Township’s attorney contacted a developer in
Macomb County to advertise the property as for sale. In their appellate brief, plaintiffs change this allegation to say
that the Township “list[ed]” the property for sale. Even if this might fairly be construed as an alleged taking, there is
no alleged injury from the Township attorney’s actions.

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 9
amendments to the consent judgment, including an amendment to allow a new buyer to develop
the property. According to the amended complaint, the Township neither allowed any
amendments nor issued necessary permits for construction. Rather, the Township informed
plaintiffs that the consent judgment would need to be amended for the project to move forward.
And, among other things, plaintiffs would have to pay the Township $73,000 in damages related
to plaintiffs’ alleged breach of the consent judgment.
All of plaintiffs’ alleged constitutional violations stem from the Township’s alleged
refusal to “honor its obligations under the Consent Judgment to allow plaintiffs to develop the
Subject Property.” Throughout the amended complaint, plaintiffs reference the Township’s
failure to abide by the consent judgment, and they identify key provisions of the consent
judgment, alleging that the Township failed to meet its obligations under them. Thus,
adjudicating the constitutional claims would, at the very least, require the district court to
interpret the consent judgment, with the obligations owed therein, if not enforce it. Perhaps
plaintiffs are correct that the Township failed to meet its obligations under the consent judgment,
but that is not for the district court to decide. The proper venue to interpret and enforce the
consent judgment is Macomb County Circuit Court, not the federal courts. See Flanagan,
143 F.3d at 540.
Plaintiffs argue that, even if the factual basis of their claims stems from the consent
judgment, the amended complaint does not amount to a collateral attack. Plaintiffs rely on Striff
v. Mason, 849 F.2d 240, 245 (6th Cir. 1988), to argue that federal claims can have a factual basis
in a consent decree and district courts can still fashion remedies despite the nature of the
collateral attack. We find that argument unpersuasive. In Striff, the court affirmed the principle
that where “examination of the substance of the claim reveals that a consent decree is implicated
and its implementation would be adversely affected, the action is properly considered a collateral
attack on the decree.” Id. Based on that principle, this court affirmed the district court’s

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 10
dismissal of most claims. The sole reversal was based on the court deciding that the district
court should have allowed the plaintiff to intervene in the original action. See id.4
III.
For the foregoing reasons, we AFFIRM the district court on the alternative ground of
failure to state a claim upon which relief can be granted.
4The holding in Striff—that third parties could not collaterally attack consent decrees—was overturned in
Martin v. Wilks, 490 U.S. 755, 762–63 (1989). That in turn was superseded by a federal statute as explained in
Landgraf v. USI Film Products, 511 U.S. 244, 251 (1994). Either way, these points are irrelevant because there is
no third party seeking to enforce the consent judgment.

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 11
______________________________
CONCURRENCE / DISSENT
______________________________
CHAD A. READLER, concurring in part and dissenting in part. I agree with the
majority opinion that the district court should have exercised its jurisdiction over plaintiffs’
complaint. For today’s purposes, however, I would stop there, leaving the res judicata issue to
the district court on remand. It may be the case that plaintiffs’ complaint is precluded. But the
issue was not raised in the district court. Naturally, it also went unaddressed in the parties’
appellate briefs. And when we inquired about the issue at oral argument, the point was
affirmatively waived by the Township for purposes of this appeal. See Oral Arg. Tr. at 27:31–42
(Q: “Are you making a preclusion argument? Are you saying they’re precluded from making
certain arguments because of the prior—” A: “No, your honor. I’m not.”). Respecting the
parties’ litigating choices, I would leave this unraised legal question to be answered another day.
* * *
Both the district court and the majority opinion agree that plaintiffs’ complaint should be
dismissed. But their agreement ends there. The district court dismissed the complaint pursuant
to Federal Rule of Civil Procedure 12(b)(1). The majority opinion, however, affirms that
dismissal in accordance with Rule 12(b)(6). The difference between the two is no small matter.
Rule 12(b)(1) concerns a court’s power to hear a case, while Rule 12(b)(6) addresses a party’s
success in pleading a claim for which relief could be granted. We customarily do not resolve
issues relating to the latter in an appeal arising from a judgment based solely on the former.
Adkisson v. Jacobs Eng’g Grp., 790 F.3d 641, 647 (6th Cir. 2015) (declining to proceed on
appeal under Rule 12(b)(6) after a district court decided a case pursuant to Rule 12(b)(1)). After
all, deciding previously unlitigated issues is “not in accordance with our traditional adversarial
system.” Tingler v. Marshall, 716 F.2d 1109, 1111 (6th Cir. 1983) (noting that such an approach
is “not favored”); see also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1578–79, 1581
(2020) (holding that departures from the principles of party presentation constitute an abuse of

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No. 22-1950 Republic Building Co., Inc. v.
Charter Twp. of Clinton, Mich.
Page 12
discretion absent “extraordinary circumstances”). Doing so often means determining a claim’s
merits before the parties have had a chance to give us their views on the matter.
True, there is one unique circumstance in which we resolve merits issues in an appeal
from a jurisdictional dismissal. See Morrison v. Nat’l Austl. Bank, 561 U.S. 247, 254 (2010).
That is when the district court mistakes a Rule 12(b)(6) “merits question” for a question of “the
tribunal’s power to hear a case,” and thereby engages in a Rule 12(b)(6) analysis in purportedly
dismissing the case under Rule 12(b)(1). Id. (cleaned up); see also Haines v. Fed. Motor Carrier
Safety Admin., 814 F.3d 417, 424 & n.2 (6th Cir. 2016); Teamsters Loc. Union 480 v. UPS, Inc.,
748 F.3d 281, 286 (6th Cir. 2014); Hoogerhide v. IRS, 637 F.3d 634, 638–39 (6th Cir. 2011);
City of Highland Park v. EPA, 817 F. App’x 42, 48 (6th Cir. 2020) (“Despite the Rule 12(b)(1)
label, the district court’s reasoning supports dismissal under Rule 12(b)(6).”). In that instance, a
remand would simply make the district court do the same thing a second time. So where the
district court has merely committed a labeling mistake and “nothing in the analysis of the
[district] court[ ] turned on the mistake,” we may proceed apace. Morrison, 561 U.S. at 254.
That was not the case here. The district court dismissed plaintiffs’ complaint due to a
perceived duty to decline subject matter jurisdiction over collateral attacks. To do so, it relied on
the “collateral attack doctrine” articulated in Pratt v. Ventas, Inc., 365 F.3d 514, 519 (6th Cir.
2004). Pratt involved a challenge to a Delaware bankruptcy court’s judgment through litigation
filed in Kentucky district court. Id. at 518. The dismissal in that case was “jurisdictional in
nature” because the Kentucky court “could not properly exercise appellate review over” the
Delaware bankruptcy proceedings. Id. at 518–19, 523 (emphasis added) (recognizing that
Congress conferred jurisdiction on “the district court for the judicial district in which the
bankruptcy judge is serving” (quoting 28 U.S.C. § 158(a))). In that sense, that “collateral attack
doctrine” is jurisdictional because Congress has not given district courts appellate jurisdiction
over other districts’ bankruptcy courts. 28 U.S.C. § 158(a). As true as that may be, the district
court here mistakenly read Pratt to establish a general rule for collateral attacks, and then paired
that rule with a case in which a district court abstained from hearing a collateral attack, Petoskey
Inv. Grp. v. Bear Creek Township, No. 5:03-cv-14, 2005 WL 1796130, at *9 (W.D. Mich. July

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Charter Twp. of Clinton, Mich.
Page 13
27, 2005), to conclude that federal courts “cannot hear claims” where there is a valid state court
consent judgment.
That conclusion, one we all agree was incorrect, addressed “an issue quite separate from
the question [of] whether the allegations [Republic] makes entitle[s it] to relief.” Morrison, 561
U.S. at 254. At bottom, what drove the district court’s analysis was a misunderstanding over
what type of case may be heard in federal court. That is far afield from a true claim preclusion
analysis. The res judicata principle operates to prevent a plaintiff from bringing “multiple suits
litigating the same cause of action.” Adair v. State, 470 Mich. 105, 121 (2004). Yet that issue
was never addressed by the district court for the simple reason that it was never asked to do so.
Indeed, the Township was explicit that it was not making a res judicata defense as part of its
request for Rule 12(b)(1) dismissal, neither in the district court nor this one. All things
considered, the issue simply is not before us for resolution.
That the district court proceedings are a poor platform from which to launch today’s res
judicata determination is further reflected by the procedural wrinkles in those proceedings. The
district court considered the Township’s Rule 12(b)(1) motion as a factual (rather than facial)
attack on its subject matter jurisdiction, meaning the court had “broad discretion over what
evidence to consider,” including by “look[ing] outside the pleadings to determine whether
subject-matter jurisdiction exist[ed].” See Adkisson, 790 F.3d at 647. This is a markedly
different—and, I should note, less plaintiff-friendly—standard than the district court would apply
in resolving a Rule 12(b)(6) motion. Id. (concluding that a dismissal according to a Rule
12(b)(1) factual attack should not be addressed at the appellate level for the first time under Rule
12(b)(6)). So even had the district court engaged in a true preclusion analysis, it would have
done so using the wrong lens.
* * * * *
For these reasons, I would remand to the district court to allow the parties to address, for
the first time, the merits of the potentially dispositive res judicata issue.

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