Maria Guadalupe Ellis, on behalf of herself and all others similarly situated v. Nike USA, Inc.; Nike Retail Services, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 24-2420
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Maria Guadalupe Ellis, on behalf of herself and all others similarly situated
lllllllllllllllllllllPlaintiff - Appellant
v.
Nike USA, Inc.; Nike Retail Services, Inc.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 15, 2025
Filed: November 7, 2025
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
Maria Guadalupe Ellis brought this putative class action against Nike USA,
Inc., and its subsidiary, Nike Retail Services, Inc. (collectively, “Nike”), alleging that
Nike violated the Missouri Merchandising Practices Act (“MMPA”), Mo. Rev. Stat.
§ 407.010 et seq., when it falsely and misleadingly advertised “Sustainability
Collection” Products as sustainable and environmentally friendly, and that Ellis
would not have purchased the Products, or “would have been willing to pay a

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substantially reduced price . . . if she had known that they were not sustainable.”
Nike moved to dismiss the MMPA claims for failure to state a claim, arguing the
Complaint “does not satisfy the particularity requirements of Rule 9(b) [of the Federal
Rules of Civil Procedure and] failed Rule 8’s plausibility standard.”1
Rather than respond, Ellis timely filed a First Amended Complaint (“FAC”)
asserting the same claims and alleging that, contrary to Nike’s representations, the
Products “are not made with any ‘sustainable’ materials because the Products are
made with virgin synthetic and non-organic materials that are harmful to the
environment.” Nike filed a second motion to dismiss, arguing that Ellis (i) offered
insufficient support for her claim that Nike’s statements were false, as she cited “no
factual support . . . to make this theory plausible,” and (ii) did not allege facts that a
reasonable consumer would be misled, an MMPA requirement. Ellis opposed this
motion, arguing she pleaded enough facts to survive a motion to dismiss. Her
Memorandum in Opposition requested that the district court grant her leave to amend
in the event that it dismissed the FAC. Ellis did not file a motion to amend nor
include a proposed second amended complaint with her memorandum.
Before the class was certified, the district court2 granted Nike’s second motion
to dismiss, concluding Ellis has standing but the FAC failed to state a claim upon
which relief could be granted. See Fed. R. Civ. P. 12(b)(6). “[T]he lynchpin of every
claim in Plaintiff’s action is that Nike’s products aren’t what it says they are,” the
court explained. But the FAC “wholly fails to allege facts making that plausible.”
Ellis “confidently and repeatedly” alleges that Nike’s Products “are made with virgin
synthetic and non-organic materials that are harmful to the environment,” but “she
1Nike also argued that Ellis lacks Article III standing. The district court ruled
otherwise, and Nike did not cross appeal that ruling.
2The Honorable Matthew T. Schelp, United States District Judge for the
Eastern District of Missouri.
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alleges no further information whatsoever to establish how she has concluded that
these two thousand products contain no recycled or organic fibers and are, in reality,
made with virgin synthetic and non-organic materials.” The FAC “says only that she
purchased three products from Nike’s Sustainability Collection and her unadorned
conclusion that more than two thousand of Nike’s Sustainability Collection products
are not made with any recycled and organic fibers.” In addition, Ellis did not
plausibly plead facts that she “acted as a reasonable consumer would in light of all
the circumstances,” as 2020 amendments to the MMPA require.3 The court’s March
28, 2024 Order of Dismissal did not specify whether the dismissal was with or
without prejudice.
Ellis timely filed a Rule 59(e) motion to alter or amend the judgment, seeking
reconsideration of the March 28 Order and requesting leave to file a second amended
complaint (“SAC”). Ellis argued the court erred in dismissing her complaint with
prejudice, as opposed to without prejudice, and in failing to allow Ellis to amend the
FAC prior to its dismissal, and therefore the court should grant her post-judgment
request for leave to amend. The motion did not include a proposed SAC.
On June 10, the district court denied the Rule 59(e) motion for reconsideration
and leave to file an SAC. The court concluded it had properly declined to grant Ellis
pre-judgment leave to amend:
[P]rior to the Court’s dismissal, [Ellis] failed to file a motion for leave
to amend. Instead, [she] elected to briefly request such leave in the
3The FAC also failed to allege sufficient facts supporting the allegation that
Ellis “suffered an ascertainable loss of money or property,” an element of an MMPA
claim by a private plaintiff. To satisfy the rigorous pleading requirements of Rule
9(b), a private plaintiff “must plead with particularity not only the value represented,
but also the actual value of the product as received in order to establish ascertainable
loss.” Hennessey v. GAP, Inc., 86 F.4th 823, 830 (8th Cir. 2023).
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conclusion to her memorandum in opposition to [Nike’s] second Motion
to Dismiss. No proposed amended complaint was submitted. By failing
to properly request leave to amend, the Court’s refusal to grant such
leave does not amount to a manifest error of law [the standard for Rule
59(e) relief]. See In re 2007 Novastar Fin. Inc. Secs. Litig., 579 F.3d
878, 884 (8th Cir. 2009).
Correctly noting that “District courts have considerable discretion to deny a post
judgment motion for leave to amend because such motions are disfavored,”4 the
district court denied Ellis’ post-judgment request for leave to amend, correctly citing
United States v. Mask of Ka-Nefer-Nefer, 752 F.3d 737, 743-44 (8th Cir. 2014):
Both Motions to Dismiss served as notice of the potential deficiencies
within [Ellis’s] initial and Amended Complaint. . . . [Ellis] was aware
that her amended pleadings may have been deficient, yet she chose to
proceed forward with her previously Amended Complaint. . . . [Her]
failure to request leave to amend until after a final order had been issued
-- a delay lasting over seven months -- amounts to unexcused delay.
As we have summarized this reasoning in prior cases, Ellis “elected to ‘stand or fall’”
on her FAC. Id. at 744.
Ellis timely appeals. Though the appeal encompasses both Orders, Ellis
presents a single issue for our review: “Whether the District Court abused its
discretion in dismissing Plaintiff’s [FAC] with prejudice.” At oral argument, counsel
clarified that Ellis is not appealing the denial of leave to amend. Rather, she seeks
remand with directions to modify the dismissal to be without prejudice. Thus, the
Rule 12(b)(6) dismissal of Ellis’s claims for failure to state a claim is not at issue and
needs no further discussion. Reviewing the court’s decision to dismiss the FAC with
4See, e.g., UMB Bank, N.A. v. Guerin, 89 F.4th 1047, 1057-58 (8th Cir. 2024).
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prejudice for abuse of discretion, we affirm. See Knowles v. TD Ameritrade Holding
Corp., 2 F.4th 751, 758 (8th Cir. 2021) (standard of review).
Discussion
Ellis argues the district court abused its discretion, not in dismissing her FAC
under Rule 12(b)(6) for failing to state a claim, but in dismissing the FAC with
prejudice. The second sentence of Fed. R. Civ. P. 41(b) addresses this question:
“Unless the dismissal order states otherwise, . . . 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.” An adjudication on the merits
“is the opposite of a ‘dismissal without prejudice.’” Semtek Int’l Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 505 (2001). Consistent with the plain language of Rule
41(b), unless the dismissal order states otherwise, “a district court order that dismisses
a case under Rule 12(b)(6) without stating whether it is with or without prejudice
operates as a dismissal with prejudice.” Rollins v. Wackenhut Servs., Inc., 703 F.3d
122, 132 (D.C. Cir. 2012) (Kavanaugh, J., concurring). Here, the district court did
not specify that its dismissal was without prejudice.
Applying this rule, we recognize “a presumption that a dismissal under Rule
12(b)(6) is a judgment on the merits made with prejudice . . . [and] such a dismissal
can be rendered without prejudice if the court so specifies.” Orr v. Clements, 688
F.3d 463, 465 (8th Cir. 2012); see Phoenix Ent. Partners, LLC v. Star Music, Inc., No.
16-CV-4078, 2017 WL 5714021, at *5 (D. Minn. Nov. 28, 2017) (“Nothing requires
that a Rule 12(b)(6) dismissal for failure to state a claim be without prejudice; to the
contrary, Rule 12(b)(6) dismissals are commonly with prejudice.”). Arguing these
cases “have no relevance,” Ellis argues the district court’s decision to dismiss with
prejudice is “clear error under Eighth Circuit law” that dismissal with prejudice is a
“drastic and extremely harsh sanction . . . [that] is warranted only by a pattern of
intentional delay by the plaintiff, or in ‘cases of willful disobedience of a court order
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or continued or persistent failure to prosecute a complaint.’” Clayton v. White Hall
School District, 778 F.2d 457, 460 (8th Cir. 1985) (cleaned up).
The problem with this argument is that the standard in Clayton applies when
the plaintiff “fails to prosecute or to comply with these rules or a court order,” the
first sentence of Rule 41(b). Thus, it governs review of the proper sanction in most
of the involuntary dismissal cases that have come before us on appeal. See, e.g.,
Michaelis v. Neb. State Bar Ass’n, 717 F.2d 437, 439 (8th Cir. 1983) (affirming
dismissal with prejudice for “persistence in refusing to conform his pleadings to the
requirements of Rule 8”); Skelton v. Rapps, 187 F.3d 902, 908 (8th Cir. 1999) (with
prejudice dismissal reversed because there was no “clear record of delay or
contumacious conduct by the plaintiff”) (citation omitted). But the second sentence
of Rule 41(b) confirms that a Rule 12(b)(6) dismissal for failure to state a claim is not
“a dismissal under this subdivision (b)” -- rather, it is a “dismissal not under this rule
. . . [that] operates as an adjudication on the merits” unless it is a dismissal for “lack
of jurisdiction, improper venue, or failure to join a party under Rule 19.” Because the
dismissal of Ellis’s FAC falls under the second sentence of Rule 41(b) and the district
court did not specify the dismissal was without prejudice, the “presumption that a
dismissal under Rule 12(b)(6) is a judgment on the merits made with prejudice”
applies. Orr, 688 F.3d at 465.
Applying the proper standard, the district court did not abuse its broad
discretion in dismissing Ellis’s FAC with prejudice when Ellis “chose to stand on [her
FAC], confident [her] allegations were sufficient.” Gomez v. Wells Fargo Bank,
N.A., 676 F.3d 655, 665 (8th Cir. 2012). After Nike moved to dismiss Ellis’s initial
complaint, pointing out glaring pleading deficiencies, Ellis amended her complaint.
Nike then moved to dismiss the FAC under Rule 12(b)(6), arguing it suffered from
the same pleading deficiencies. Ellis had seven months to properly seek leave to file
a second amended complaint by filing a motion to amend with a proposed SAC
before the district court issued its March 28 dismissal Order. She did not, choosing
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to stand on her complaint, with a single line in her Memorandum in Opposition to
Defendant’s second Motion to Dismiss requesting leave to amend again if the court
dismissed her complaint. Given her “inability to allege facts sufficient to state a
claim against [Nike] even after being granted leave to amend, we cannot say that the
district court abused its discretion in dismissing the action with prejudice.”
Springdale Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649, 653 (8th Cir. 1998);
see Pet Quarters, Inc. v. Depository Tr. & Clearing Corp., 559 F.3d 772, 782 (8th Cir.
2009) (leave to amend is inappropriate “where the plaintiff has not indicated how it
would make the complaint viable”).
There was no error of law or abuse of the district court’s remedial discretion.
The judgment of the district court is affirmed.
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