                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2019 UT 50


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              HAYLEE CHEEK,
                                Petitioner,
                                       v.
                       IRON COUNTY ATTORNEY,
                             Respondent.

                              No. 20180653
                          Filed August 16, 2019

             On Certiorari to the Utah Court of Appeals

                   Fifth District, Iron County
              The Honorable Judge Marvin D. Bagley
                         No. 150500081

                                 Attorneys:
      Tyler B. Ayres, Daniel Baczynski, Draper, for petitioner
       Noah M. Hoagland, Jesse C. Trentadue, Salt Lake City,
                        for respondent


     JUSTICE PEARCE authored the opinion of the Court in which
        CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
           JUSTICE HIMONAS, and JUSTICE PETERSEN joined.


   JUSTICE PEARCE, opinion of the Court:
                           INTRODUCTION
    ¶1 Haylee Cheek seeks to bring claims in state court against the
Iron County attorney, despite having previously sued him in federal
court, where her claims were dismissed with prejudice. The state
district court dismissed Cheek’s claims, concluding that res judicata
principles barred her from reasserting them. Cheek argued to the
court of appeals that the prior federal judgment was not “on the
merits” and should have no preclusive effect. The court of appeals
concluded otherwise. We agree and affirm.
                        CHEEK v. IRON COUNTY
                         Opinion of the Court
                           BACKGROUND
    ¶2 “On appeal from a district court’s decision granting a motion
to dismiss, we view the facts pled in the complaint and all reasonable
inferences from them in the light most favorable to the plaintiff.”
Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 4, 356 P.3d 1172. We recite
the facts accordingly, but not with great depth or detail; the legal
issue on appeal here is not highly fact-driven. Additional
background regarding the history of this proceeding can be found in
the court of appeals opinion. See Cheek v. Iron Cty., 2018 UT App 116,
¶¶ 2–7, 427 P.3d 522.
    ¶3 Cheek filed suit in federal district court alleging federal
constitutional violations under 42 U.S.C. section 1983 and state
constitutional violations based on article I, section 9, of the Utah
Constitution. She asserted her claims against several defendants,
including Iron County and Iron County Attorney Scott Garrett.
Cheek sued Garrett as well as the other individual defendants in
their official capacities. Garrett moved to dismiss the claims against
him under Federal Rule of Civil Procedure 12(b)(6).
    ¶4 The federal court dismissed the claims, reasoning that “[a]n
official-capacity suit is another way of pleading an action against an
entity of which an officer is an agent. What’s more, a person sued in
his official capacity has no stake, as an individual, in the outcome of
the litigation.” (Citations omitted.) (Internal quotation marks
omitted.) The district court’s order stated that the claims were
dismissed with prejudice, and the order had the effect of freeing
Garrett from the federal litigation.
    ¶5 The federal court subsequently dismissed Cheek’s remaining
claims—the federal claims with prejudice and the state-law claims
without prejudice. Cheek then refiled her suit in state court, alleging
state constitutional violations against, among others, Garrett. Garrett
again moved to dismiss. This time, he pointed to the federal court
order dismissing the claims against him. And asserted that the order
was a final judgment on the merits that barred Cheek from
relitigating issues that were or could have been raised in the federal
action. The district court agreed and dismissed with prejudice,
concluding that “[Cheek’s] claims against [Garrett] are barred by res
judicata.”
    ¶6 Cheek appealed, and the court of appeals affirmed. Cheek,
2018 UT App 116, ¶¶ 16–19. The court of appeals noted that “[t]he
district court’s decision rested on the claim preclusion branch” of the
res judicata doctrine. Id. ¶ 16. Cheek had not challenged the “first
two prongs of the claim-preclusion test,” which are that “both cases

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must involve the same parties or their privies,” and “the claim that is
alleged to be barred must have been presented in the first suit or be
one that could and should have been raised in the first action.” Id.
¶¶ 16–17 (citation omitted) (internal quotation marks omitted).
    ¶7 The court of appeals then addressed Cheek’s sole assertion
that, under the third prong of the res judicata analysis, the order
dismissing the claims against Garrett was not a final judgment on
the merits. Id. ¶¶ 17–19. The court of appeals turned to our decision
in Mack v. Utah State Department of Commerce, 2009 UT 47, 221 P.3d
194, which held that a “district court action, which was resolved
under Utah Rule of Civil Procedure 12(b)(6), resulted in a final
judgment on the merits.” Id. ¶ 29. The court of appeals then reasoned
that “even though it does not involve the usual hallmarks of a
resolution on the merits, a successful motion to dismiss for failure to
state a claim results in a final judgment on the merits.” Cheek, 2018
UT App 116, ¶ 19. And given the limited briefing and record Cheek
presented, Cheek “failed to persuade [the court of appeals] that Mack
does not apply and that the state district court erred” in concluding
that her claims were barred under the doctrine of res judicata. Id.
   ¶8 Cheek appeals, raising the same argument she asserted in the
court of appeals.
                     STANDARD OF REVIEW
    ¶9 “On certiorari, we review the court of appeals’ decision for
correctness, focusing on whether that court correctly reviewed the
trial court’s decision under the appropriate standard of review.”
State v. Rushton, 2017 UT 21, ¶ 9, 395 P.3d 92 (citation omitted). “The
grant or denial of a motion to dismiss is a question of law . . .
review[ed] for correctness, giving no deference to the decision of the
trial court.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 14, 435 P.3d 248
(citation omitted).
                             ANALYSIS
    ¶10 “Federal law controls the claim-preclusive effect of prior
federal judgments.” Haik v. Salt Lake City Corp., 2017 UT 14, ¶ 8, 393
P.3d 285. And under federal law, the substantive rules governing
claim preclusion may vary depending on the type of jurisdiction the
federal court exercised. Id. For example, when claims are dismissed
by a court exercising federal question jurisdiction, federal claim
preclusion rules govern; and when claims are dismissed by a court




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                         CHEEK v. IRON COUNTY
                          Opinion of the Court
exercising diversity jurisdiction, state claim preclusion rules govern.
Id. 1
    ¶11 “In Utah, however, the rules of claim preclusion are
virtually identical to the federal rules . . . .” Id. ¶ 9 (citation omitted)
(internal quotation marks omitted). And the parties have not
asserted any differences in those rules relevant to the question
presented here. Indeed, the parties cite both state and federal
precedent to press their arguments. Because of the similarities, it is
ultimately immaterial to our analysis whether we apply federal or
state claim preclusion rules. We therefore apply our state law to the
question Cheek raises.
   ¶12 For purposes of the claim-preclusion branch of the res
judicata doctrine, we generally apply a three-part test:
       First, both cases must involve the same parties or their
       privies. Second, the claim that is alleged to be barred
       must have been presented in the first suit or be one that
       could and should have been raised in the first action.
       Third, the first suit must have resulted in a final
       judgment on the merits.
Mack v. Utah State Dep’t of Commerce, 2009 UT 47, ¶ 29, 221 P.3d 194
(citation omitted).
    ¶13 Cheek does not contest the first two elements of this test. In
the district court, Cheek noted that her initial suit was against
Garrett in his official capacity, while this suit is against Garrett in his
individual capacity. But Cheek does not contend the proceedings
involve different parties. Likewise, Cheek takes no issue with the
district court’s conclusion that the claims she alleges in this
proceeding were presented in the first suit or could have and should
have been raised in the first action. She claims only that “[r]es
judicata did not attach because the third element was not . . .
satisfied—Garrett’s prior dismissal was not on the merits.” And that
is the only question we address.
    ¶14 “Our case law defines ‘[on] the merits’ for res judicata in
light of rule 41 of the Utah Rules of Civil Procedure.” Fundamentalist
Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 22,
289 P.3d 502; see also Beaver v. Qwest, Inc., 2001 UT 81, ¶ 19, 31 P.3d
_____________________________________________________________
   1  We have not yet resolved whether state or federal claim
preclusion rules govern our inquiry in the context of an order issued
by a federal court exercising supplemental jurisdiction. See, e.g., Haik,
2017 UT 14, ¶ 11 n.3.

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                         Opinion of the Court
1147 (applying rule 41 in determining whether a dismissal was on
the merits). Rule 41 provides that “[u]nless the dismissal order
otherwise states, a dismissal under this paragraph and any dismissal
not under this rule, other than a dismissal for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19, operates as
an adjudication on the merits.” UTAH R. CIV. P. 41(b).
    ¶15 We have interpreted this rule as “establish[ing] a
presumption that the dismissal of a case is ‘on the merits’ and thus
has preclusive effect, subject to exceptions where the court
‘otherwise specifies’ or where the decision is for lack of jurisdiction,
improper venue, or for failure to join a necessary party.” Horne, 2012
UT 66, ¶ 22. Accordingly, unless an order states otherwise, any
dismissal for failure to state a claim under rule 12(b)(6), or for any
reason other than lack of jurisdiction, improper venue, or failure to
join a party under rule 19, is presumptively “on the merits” for claim
preclusion purposes. See, e.g., Mack, 2009 UT 47, ¶ 29 (“[T]he district
court action, which was resolved under Utah Rule of Civil Procedure
12(b)(6), resulted in a final judgment on the merits.”).
   ¶16 Cheek’s claims in federal district court were dismissed with
prejudice after Garrett filed a rule 12(b)(6) motion. The dismissal was
not based on a lack of jurisdiction, improper venue, or failure to join
a necessary party, nor did the order otherwise specify that it lacked
preclusive effect. To the contrary, the order was issued “with
prejudice.” Accordingly, the order was presumptively “on the
merits” for purposes of our claim preclusion doctrine. And Cheek
must overcome that presumption by demonstrating that the order
was not, in fact, “on the merits.”
    ¶17 Cheek has failed to rebut the presumption. And her
arguments are predicated on a misunderstanding of the meaning of
“on the merits” for purposes of our claim preclusion doctrine. Cheek
asserts the federal order dismissing her claims against Garrett lacks
preclusive effect because it was not based on her failure to state a
claim, but on the “procedural” “redundancy” of including official-
capacity claims in a suit also levied against the official’s
governmental employer. In other words, Cheek asserts the dismissal
was motivated by “judicial economy” and, for that reason, cannot be
considered “on the merits” even though the dismissal was issued
with prejudice.
   ¶18 “On the merits” for res judicata purposes does not mean
that a court must have reached a substantive determination as to the
validity of the underlying claims. In this context, “on the merits”
examines whether a ruling “is driven . . . by the parties’ actions or
the claims and defenses asserted,” or by an “initial bar” to the court’s

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                        CHEEK v. IRON COUNTY
                         Opinion of the Court
authority to adjudicate the claims or issues presented. Horne, 2012
UT 66, ¶¶ 24–25. “When an initial bar exists,” as when “venue or
jurisdiction is lacking or the wrong parties are before the court,” “the
court has authority to opine only on the law and facts surrounding
its own power.” Id. Absent such a bar, however, “any subsequent
dismissal is preclusive because it is driven not by limitations on the
court’s authority, but by the parties’ actions or the claims and
defenses asserted.” Id. ¶ 25.
    ¶19 No such “initial bar” is at issue here, and the federal court’s
order of dismissal was driven by the claims and defenses asserted.
The federal district court concluded that in the context of claims
brought under section 1983 and article 1, section 9 of the Utah
Constitution, claims against a state actor in his official capacity were
redundant to the claims asserted against his employer. The district
court concluded that because Cheek named Garrett in his official
capacity, Garrett had no stake in the outcome of the suit, and those
claims should be dismissed from the litigation. Permanently. Cheek
would not have been free to relitigate her official-capacity claims in
federal court in the face of the federal court’s dismissal of those
claims with prejudice. Thus, for res judicata purposes, the order was
“on the merits” as to whether Cheek could pursue her official-
capacity claims against Garrett.
    ¶20 Seeking to avoid this conclusion, Cheek attempts to
distinguish between “substantive” and “procedural” dismissals,
claiming that the latter category cannot have res judicata effect under
a “traditional” claim preclusion analysis. In support, Cheek points to
a court of appeals decision that defines “on the merits” as “real or
substantial grounds of action or defense as distinguished from
matters of practice, procedure, jurisdiction or form.” State ex rel. Utah
State Dep’t of Soc. Servs. v. Ruscetta, 742 P.2d 114, 116 (Utah Ct. App.
1987). On that basis, Cheek contends the federal court order was
purely “procedural” and of no import for res judicata purposes.
    ¶21 But Ruscetta does not square with our more recent
jurisprudence. We do not simply drop rulings into a “procedural” or
“substantive” box to determine their preclusive effect. We do not
draw lines between decisions addressing the “real” grounds of
claims versus “matters of . . . form.” As noted above, we use rule 41
as a guideline for presumptively determining the question and, in
accordance with that rule, recognize that certain types of
dismissals—e.g., dismissals for lack of jurisdiction, improper venue,
or failure to join a necessary party—are not presumed to be “on the
merits” for res judicata purposes. See UTAH R. CIV. P. 41(b). Other
dismissals presumptively are “on the merits” because they are likely

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driven by the claims and issues presented to a court with authority
to adjudicate them. And it is up to the party seeking to avoid the
preclusive effect of the ruling to demonstrate that the dismissal did
not hinge on the claims and issues before the court.
    ¶22 Further attempting to avoid this result, Cheek contends
that we look behind the title of a motion to its substance to assess a
ruling’s res judicata effect. (Citing Gardner v. Madsen, 949 P.2d 785,
788 (Utah Ct. App. 1997) (addressing the preclusive effect of a
judgment resolving a case on summary judgment, and noting that
“incapability to sue as a legal entity does not constitute a judgment
on the merits for purposes of res judicata”).) 2 Cheek is correct that
our rules do not foreclose a party from demonstrating that a
judgment presumptively “on the merits” lacks preclusive effect.
    ¶23 But invocation of that principle without more is of no help
to Cheek, who has failed to make any such showing. She has
provided us with no basis for concluding that a federal order
dismissing official-capacity claims, with prejudice, is not “on the
merits” with respect to the claims dismissed. And Cheek has not
made any other argument on the issue of res judicata—e.g., that even
if the judgment were “on the merits” as to those claims, it should not
bar adjudication of the claims Cheek now raises. Accordingly, Cheek
has failed to shoulder the burden of rebutting the presumption that
the dismissal with prejudice was on the merits.
                           CONCLUSION
    ¶24 Cheek asserts that a federal court order dismissing official-
capacity claims against a governmental employee, with prejudice, is
not “on the merits” for claim preclusion purposes. Cheek has failed
to demonstrate that the order lacks preclusive effect, and the court of
appeals correctly affirmed the district court’s dismissal of Cheek’s
claims. We affirm.

_____________________________________________________________
   2 We note that both of the cases Cheek cites, Gardner and Ruscetta,
addressed the issue preclusion branch of the res judicata doctrine.
See Gardner, 949 P.2d at 788; Ruscetta, 742 P.2d at 116. The parties do
not assert that a different inquiry guides our determination of
whether a judgment is “on the merits” when addressing issue
preclusion as opposed to claim preclusion. And we see no reason to
draw that distinction. See Amundsen v. Univ. of Utah, 2019 UT 49, ¶ 25
n.7, --- P.3d --- (“We turn to rule 41 for guidance as to whether a
judgment is ‘on the merits’ for res judicata purposes when
addressing either claim or issue preclusion.”).

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