Sharon M. Rollins, Individually v. Wackenhut Services , Inc ., Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2012 Decided December 28, 2012
No. 11-7094
SHARON M. ROLLINS, I NDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE FOR THE
ESTATE OF DEVIN DARRELL BAILEY ,
APPELLANT
v.
WACKENHUT SERVICES , I NC ., ET AL .,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00047)
Gregory Stuart Smith argued the cause and filed the briefs
for appellant.
Matthew W. Carlson argued the cause and filed the brief for
appellee Wackenhut Services, Inc.
Daniel S. Pariser argued the cause for appellees
Bristol-Myers Squibb Company, et al. With him on the brief
was Timothy M. Broas. Adam S. Nadelhaft entered an
appearance.
Before: ROGERS, BROWN and KAVANAUGH , Circuit Judges.

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Opinion for the Court by Circuit Judge ROGERS .
Concurring opinion by Circuit Judge KAVANAUGH .
ROGERS , Circuit Judge: Sharon Rollins’s son committed
suicide using a gun provided by his employer while he was
taking prescribed medication manufactured and distributed by
two pharmaceutical companies. On appeal from the dismissal
of her wrongful death and survival action against the employer
and pharmaceutical companies, Rollins presents three issues.
First, she contends that the district court erred in ruling she
failed to state a claim of negligence against the employer when
the court invoked, sua sponte, District of Columbia law that
suicide is an intervening and independent cause of death subject
to limited exceptions that were inapplicable. Alternatively, she
urges certification of the negligence-liability question to the
D.C. Court of Appeals. Finally, she disputes the district court’s
ruling that the complaint failed to state a plausible claim of
products liability against the pharmaceutical companies and
contends that the court then erred in denying her leave to amend
the complaint. For the following reasons, we must conclude that
these contentions are unpersuasive, and we affirm.
I.
Devin Bailey, Rollins’s son, had a history of mental illness.
Accepting as true the factual allegations in the complaint, see
Thompson v. District of Columbia, 530 F.3d 914, 915 (D.C. Cir.
2008), Bailey withdrew from Penn State University after two
years because of increased depression and serious mental health
problems. Compl. ¶ 11. In 2006, he joined the United States
Navy but was quickly discharged after having been hospitalized
for psychosis only a few days into his service. Compl. ¶ 12. In
April 2007, Rollins tried unsuccessfully to have her son
transported to a mental hospital for inpatient treatment. Compl.

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¶ 13. When the police arrived in response to a radio-run for a
family disturbance and tried to restrain Bailey, he kicked one
officer in the leg; Bailey was subsequently charged with
assaulting a police officer and carrying a dangerous weapon —
an 8-inch knife found in his pocket. Compl. ¶¶ 14–15. After he
was committed by the court in July to St. Elizabeth’s Hospital
for a competency evaluation, Compl. ¶ 15, Bailey was diagnosed
as having “Bipolar Disorder, Most Recent Episode Mixed,
Severe with Psychotic Features,” Compl. ¶ 17. He was released
on prescribed medications, Rispardal and Depakene, after about
three weeks. Compl. ¶ 17. In early 2008 he successfully
completed a course in basic real estate principles at Montgomery
College in Maryland and passed the written and physical
examinations for a position as a firefighter/EMT in Fairfax
County, Virginia. Compl. ¶¶ 18–19.
In May 2008, Bailey voluntarily admitted himself to
Washington Adventist Hospital in Maryland, where doctors
prescribed him the antipsychotic drug ABILIFY®. Compl. ¶ 21.
An accompanying “black-box warning” stated: “Children,
adolescents, and young adults taking antidepressants for major
depressive disorder (MDD) and other psychiatric disorders are
at increased risk of suicidal thinking and behavior. (5.2).”
Compl. ¶ 23. Section 5.2 warns of “long-standing concern”
about inducing worsening of depression and emergence of
suicidality during early phases of treatment. Compl. ¶ 23.
Bailey was discharged from the Hospital after about a week with
instructions to take 20 mg of ABILIFY® daily, along with
Prolixin to improve compliance. Compl. ¶ 24. In July and
August he received additional prescriptions for ABILIFY® with
instructions to increase the dosage to 30 mg daily, the maximum
dosage. Compl. ¶ 25. ABILIFY® is manufactured and
distributed in the United States by Otsuka America
Pharmaceutical, Inc. (“Otsuka”), and Bristol-Myers Squibb
Company (“Bristol-Myers”). Compl. ¶¶ 3–4.

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In September 2008, Bailey applied for a job with
Wackenhut Services, Inc., a contractor that provides security
services to the federal government. Compl. ¶¶ 6, 26.
Wackenhut hired him the following month as an armed security
guard at Walter Reed Army Medical Center. Compl. ¶ 27. The
offer of employment was contingent on completion of a
“weapons qualification” and “criminal justice screening.”
Compl. ¶ 27. In early November, Wackenhut’s National
Research Center prepared a background screening report stating
there was an outstanding September 10, 2007 arrest warrant for
Bailey for failing to appear in court on “UNDISPOSED” assault
and weapon charges. Compl. ¶¶ 28–29. Although the report
was forwarded to the Field Manager and Chief of Guards who
extended the offer of employment to Bailey, Wackenhut did not
follow up on this information. Compl. ¶¶ 28, 30. Neither did
Wackenhut obtain Bailey’s military service record. Compl.
¶ 34. Instead, Wackenhut tested Bailey’s firearms proficiency
and issued him a gun to use in his work. Compl. ¶¶ 31–32. On
November 15, 2008, Bailey received a “Diploma” declaring him
a “graduate” of Wackenhut’s “Security Officer Course.”
Compl. ¶ 35.
On December 9, 2008, Bailey shot and killed himself with
a work-issued gun while on duty in a Walter Reed guard shack.
Compl. ¶ 36. He was 23 years old. See Compl. ¶ 10.
Rollins, individually and as representative of her son’s
estate, filed suit in the D.C. Superior Court against Wackenhut,
Otsuka, and Bristol-Myers. The complaint alleged that
Wackenhut negligently issued Bailey a gun without adequately
investigating his background and mental health history, Compl.
¶ 40, and that the pharmaceutical companies were strictly liable
for manufacturing and distributing ABILIFY® “in a defective
condition unreasonably dangerous to users and consumers, and
particularly young adults such as Devin Bailey.” Compl. ¶ 43.

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Rollins sought compensatory damages of $1 million each for
wrongful death and for survival on behalf of Bailey’s estate
against all defendants, and $3 million in punitive damages
against Wackenhut. On January 11, 2010, the defendants
removed the lawsuit to the federal court, based on diversity
jurisdiction, 28 U.S.C. §§ 1332, 1441. The pharmaceutical
companies filed answers to the complaint the same day. The
following week, on January 20, 2010, they moved to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(c).
Wackenhut, which had not filed an answer, moved for dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(6). Rollins
opposed the motions.
The district court dismissed the complaint against
Wackenhut for failure to state a claim pursuant to Rule 12(b)(6)
and granted judgment on the pleadings to the pharmaceutical
companies pursuant to Rule 12(c). Rollins v. Wackenhut Servs.,
802 F. Supp. 2d 111 (D.D.C. 2011). Rollins appeals. Our
review is de novo. Rudder v. Williams, 666 F.3d 790, 794 (D.C.
Cir. 2012); Thompson, 530 F.3d at 915.
II.
Rollins alleged that her son’s employer, Wackenhut,
violated a special relationship and duty of protection it owned to
her son by “carelessly and negligently” (1) failing to investigate
the charges listed on its screening report and the information in
his military service record; (2) issuing him a gun when it should
have known that he was prohibited from possessing a weapon
under federal law; and (3) allowing him to possess the gun for
over a month. Compl. ¶ 40. The district court rejected
Wackenhut’s argument, citing Grillo v. National Bank of
Washington, 540 A.2d 743, 744 (D.C. 1988), that Rollins’s
exclusive remedy was under the D.C. Workers’ Compensation
Act, D.C. Code § 32-1504(a) & (b). That Act provides it “shall

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not apply where injury to the employee was occasioned solely
by his intoxication or by his willful intention to injure or kill
himself or another.” D.C. Code § 32-1503(d) (emphasis added).
The district court agreed with Rollins, and so do we, that the Act
was inapplicable, but the district court noted that by relying on
D.C. Code § 32-1503(d) to escape the Act’s coverage, Rollins
“effectively admitted that the suicide was a willful and
intentional act.” Rollins, 802 F. Supp. 2d at 120; see Pl’s Mem.
In Opposition to Defendant Wackenhut Services, Inc.’s Motion
To Dismiss Feb. 3, 2010. Observing further that Rollins
claimed Wackenhut’s negligence was a substantial factor in her
son’s death, see Compl. ¶ 42, the district court, sua sponte,
invoked District of Columbia tort law and granted Wackenhut’s
motion to dismiss the complaint for failure to state a claim. Id.
at 121. Rollins contends the district court erred in dismissing
the complaint on the basis of a legal theory never briefed or
argued in the district court, which it interpreted too narrowly,
and alternatively she seeks certification of the local law question
to the D.C. Court of Appeals.
A.
The district court may sua sponte dismiss a claim pursuant
to Rule 12(b)(6) without notice where it is “patently obvious”
that the plaintiff cannot possibly prevail based on the facts
alleged in the complaint. Baker v. Dir., U.S. Parole Comm’n,
916 F.2d 725, 727 (D.C. Cir. 1990). In District of Columbia v.
Peters, 527 A.2d 1269 (D.C. 1987), the District of Columbia
Court of Appeals endorsed the general rule that one may not
recover damages in negligence for the suicide of another, subject
to the irresistible impulse exception. The rationale underlying
the rule is that “[t]he act of suicide generally is considered to be
a deliberate, intentional, and intervening act which precludes a
finding that a given defendant is, in fact, responsible for the
decedent’s death.” Id. at 1275. Drawing on the RESTATEMENT
(SECOND ) OF T ORTS § 455 (1977), the court held that to come

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within the exception to the general rule a plaintiff must show
more than that the alleged negligent incident started a chain of
circumstances that led to the suicide. The plaintiff must prove,
as a result of the defendant’s action, “the decedent could not
have decided against and refrained from killing himself, and
because of such uncontrollable impulse, the decedent committed
suicide.” Id. at 1276 (quoting Orcutt v. Spokane County, 364
P.2d 1102, 1105 (Wash. 1961) (en banc)). In WMATA v.
Johnson, 726 A.2d 172 (D.C. 1999), the D.C. Court of Appeals,
sitting en banc, reaffirmed the general rule in Peters, holding
that the last clear chance doctrine “may not be employed to
restore liability in another for a plaintiff’s suicidal act.” Id. at
178. The court additionally noted a second exception to the
general rule, that liability can be restored where “an institution,
such as a psychiatric hospital, ha[s] a duty of custodial care” to
prevent reasonably foreseeable suicide. Id. at 177 n.8. The
district court concluded neither exception applied to Rollins’s
claim against Wackenhut. Rollins, 802 F. Supp. 2d at 120–21.
On appeal, Rollins acknowledges the general rule under
District of Columbia law against negligence liability for suicide,
and appears to concede that her claim against Wackenhut does
not fall within the irresistible impulse exception “as traditionally
understood,” Reply Br. 5 n.2. Rather, she contends, her claim
falls within the second exception because Wackenhut assumed
a “special relationship” with her son by issuing him a gun
outside the normal firearms-distribution process. See Compl. ¶
40. As Rollins sees it, Wackenhut puts its employees through a
private background screening in lieu of the normal background
checks that would ordinarily adhere to purchases made at
licensed firearms dealers. Rollins’s approach extends the
special relationship exception far beyond its moorings.
The RESTATEMENT (SECOND ) OF TORTS § 314A(4) explains
that a special duty is imposed where a defendant “takes the

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custody of another under circumstances such as to deprive the
other of his normal opportunities for protection.” As interpreted
by the D.C. Court of Appeals, the special relationship exception
applies where an institution or treatment facility, such as a
hospital or jail, assumes physical custody over an individual.
Johnson, 726 A.2d at 177 n.8. Previously the court had applied
the exception where the person who committed suicide was
confined in the D.C. Jail, see Phillips v. District of Columbia,
714 A.2d 768 (D.C. 1998), or a juvenile facility for delinquent
youth, see Clark v. District of Columbia, 708 A.2d 632 (D.C.
1997). In Johnson, the en banc court also favorably cited
McLaughlin v. Sullivan, 461 A.2d 123, 125 (N.H. 1983), which
described the special relationship exception as applying where
a person, such as a psychiatrist, has special medical training
requiring care for the suicidal individual’s mental well-being.
Rollins’s complaint does not allege that Wackenhut had physical
custody of Bailey or had special medical training requiring it to
care for his mental well-being.
Rollins maintains, nonetheless, that the district court erred
by excluding the possibility that other exceptions to the general
rule in Peters may exist. For example, Rollins alleged that if
Wackenhut had properly investigated Bailey’s background, it
would have discovered that he was prohibited from possessing
a firearm under 18 U.S.C. § 922(g). See Compl. ¶¶ 32–33. That
provision prohibits firearms possession by any “fugitive from
justice,” “mental defective,” or person “who has been committed
to a mental institution.” 18 U.S.C. § 922(g)(2), (4). The district
court noted that other courts had generally rejected suicide
negligence claims premised on violations of § 922(g) or other
gun control statutes. Rollins, 802 F. Supp.2d at 121 n.6, citing
Johnson v. Wal-Mart Stores, Inc., 588 F.3d 439, 443 (7th Cir.
2009). Rollins offers that there is no firm alignment of courts on
the question and cites a federal district court case and an
intermediate appellate state court case as suggesting “additional

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circumstances” could result in liability. See Knight v. Wal-Mart
Stores, Inc., 889 F. Supp. 1532 (S.D. Ga. 1995); Crown v.
Raymond, 764 P.2d 1146 (Ariz. Ct. App. 1988). These
authorities do not advance Rollins’s cause.
The D.C. Court of Appeals has not yet addressed a case of
negligent firearm distribution that resulted in suicide but it has,
since Knight and Crown were decided, affirmed a broad general
rule against negligence liability for suicide. See Johnson, 726
A.2d at 177–78. More recently, the Seventh Circuit in Wal-
Mart Stores, 588 F.3d at 443–44, observed that Illinois courts
were in much the same posture and that most other jurisdictions
to address the firearms question also adhere to the “traditional
rule” that suicide is an intervening, intentional act that breaks
the chain of causation. Aside from Knight and Crown, Rollins
provides no support for the conclusion that negligent issuance of
a gun to an adult should fall within an exception to the general
rule in Peters. Her references to the Restatement’s discussion
of the two exceptions recognized by the D.C. Court of Appeals
are either unpersuasive or inapposite. See Appellant’s Br. at
33–34 (citing RESTATEMENT (SECOND ) OF TORTS §§ 314A,
455). As the district court observed, Rollins’s allegations “raise
serious questions about the diligence and care with which
Wackenhut performs background checks on the employees to
whom it provides firearms,” Rollins, 802 F. Supp. 2d at 121, but
taking her allegations as true, “Bailey’s suicide was an
intervening act that precludes [Wackenhut’s] liability under
D.C. law,” id.
B.
Rollins’s suggestion, therefore, that this court should certify
two questions 1 to the D.C. Court of Appeals pursuant to D.C.
1 Rollins’s two questions are:

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Code § 11-723(a) is unavailing. Certification is authorized
where “it appears to the certifying court there is no controlling
precedent in the decisions of the District of Columbia Court of
Appeals.” D.C. Code § 11-723(a). Consequently it is
appropriate only where this court is “genuinely uncertain” about
a question of District of Columbia law that is vital to the
underlying case. Tidler v. Eli Lilly & Co., 851 F.2d 418, 426
(D.C. Cir. 1988).
Rollins’s hypothesis that the D.C. Court of Appeals might
adopt other exceptions to the general rule against negligence
liability in cases of suicide, citing Kivland v. Columbia
Orthopaedic Group, LLP, 331 S.W. 3d 299, 309 (Mo. 2011) (en
banc), fails to acknowledge that the D.C. Court of Appeals,
sitting en banc, reaffirmed the general rule in limiting the last-
clear-chance doctrine and that the second question she seeks to
have certified reflects the views of a dissenting judge. See
Johnson, 726 A.2d at 177–78; id. at 180–81 (Ruiz, J.,
dissenting). Although the en banc court acknowledged that it
(1) Under District of Columbia law, may a plaintiff recover
for the wrongful death of a person who committed suicide,
against a third party that gave that person the firearm used in
that suicide, when the third party knew or should have known
that the person was prohibited by law from possessing a
firearm?
(2) Under District of Columbia law, and under the facts set
forth in the Complaint, may a plaintiff recover for the
wrongful death of a person who committed suicide, where the
person committing suicide had an impairment that limited the
suicide victim’s ability to appreciate his peril or encounter it
purposely, in the form of a prescribed medication that had a
recognized risk of increased suicidality?
Appellant’s Br. 38.

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was not deciding a question in the context of a claim of
diminished mental capacity, see id. at 174, Rollins cannot take
advantage of that reservation because, in order to avoid the
exclusive coverage of the D.C. Workers’ Compensation Act, she
“effectively admitted that [her son’s] suicide was a willful and
intentional act.” Rollins, 802 F. Supp. 2d at 120; see D.C. Code.
§ 32-1503(d). Certification based on the possibility that the
D.C. Court of Appeals might adopt additional exceptions to its
general rule, then, has no logical stopping point and no federal
court could ever resolve an issue of state law because state
courts always might choose to create new exceptions to their
general rules. This court has not read certification authority
pursuant to D.C. Code § 11-723(a) so broadly.
III.
Rollins sought to hold the two pharmaceutical companies
strictly liable under the rule in the RESTATEMENT (SECOND ) OF
TORTS § 402A, alleging that:
By manufacturing and distributing ABILIFY®
within the United States, despite its known risks of
increasing suicidality in certain patients, Defendants
Otsuka America and Bristol-Myers are liable for
selling a product in a defective condition unreasonably
dangerous to users and consumers, and particularly
young adults such as Devin Bailey . . . .
Compl. ¶ 43. The district court granted the pharmaceutical
companies’ motions to dismiss pursuant to Rule 12(c) on the
ground that Rollins failed to allege sufficient facts to state a
plausible products liability claim. Rollins, 802 F. Supp. 2d at
121.

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A.
Under the Supreme Court’s rearticulation of pleading
requirements in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “[t]o survive
a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). The facts alleged must “allow[] the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.; see also Rudder, 666
F.3d at 794 (quoting Iqbal and Twombly). Rollins responds —
Iqbal and Twombly notwithstanding — that her complaint
satisfied the pleading standard under Federal Rule of Civil
Procedure 8 because Otsuka and Bristol-Myers filed responsive
answers to the complaint. The filing of an answer focuses on
notice pleading requirements, but does not mean that the
requirements of Iqbal and Twombly do not apply to a Rule 12(c)
motion, which here is functionally equivalent to a Rule 12(b)(6)
motion. See Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.
Cir. 1987), abrogated on other grounds by Hartman v. Moore,
547 U.S. 250 (2006). Other circuits have held that Iqbal and
Tombly apply to Rule 12(c) motions, see Cafasso v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011)
(citing cases from other circuits); 5C WRIGHT & M ILLER ,
FEDERAL PRACTICE AND PROCEDURE § 1368, n.10.4 (Supp.
2012), and we do likewise.
The D.C. Court of Appeals has recognized three distinct
categories of defective products under section 402A of the
R ESTATEMENT (SECOND ) OF TORTS : “(1) a manufacturing
defect; (2) an absence of sufficient warnings or instructions; or
(3) an unsafe design.” Warner Fruehauf Trailer Co. v. Boston,
654 A.2d 1272, 1274 (D.C. 1995). Rollins’s complaint did not
specify which, if any, of these categories of defects she intended
to pursue. It alleged no facts to support a manufacturing defect

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claim. It affirmatively pleaded that the ABILIFY® warning
label warned of the precise risk of increased suicidal tendencies
among young adults. See Compl. ¶ 23. It also alleged no facts
that plausibly could satisfy either the risk-utility test for design
defects, see Warner Fruehauf, 654 A.2d at 1276–77, or the more
demanding test for unavoidably unsafe products under Comment
k to the RESTATEMENT (SECOND ) OF TORTS § 402A,2 see Fisher
v. Sibley Mem’l Hosp., 403 A.2d 1130, 1134 (D.C. 1979).
Instead, the complaint alleged facts regarding the maximum
legal dosage of ABILIFY®, promotion of off-label uses, and
Bailey’s autopsy report, see Compl. ¶¶ 22, 25, 37, which bear no
apparent relevance to her strict liability claim.
B.
Rollins’s second response, that the district court erred by
denying her leave to amend the complaint, is without merit.
Federal Rule of Civil Procedure 15(a) provides that a district
court “should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). But Rollins failed to comply
with the law of this circuit by filing a motion for leave to amend
her complaint and attaching a proposed amended complaint.
Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006).
Instead, she requested leave to amend as an alternative argument
in her opposition to the companies’ motions to dismiss. “[A]
bare request in an opposition to a motion to dismiss — without
any indication of the particular grounds on which amendment is
sought — does not constitute a motion within the contemplation
of Rule 15(a).” Id. (internal quotation marks omitted). D.C.
District Court Local Civil Rule 15.1 requires a motion for leave
2 Comment k, regarding “unavoidably unsafe products,” as is
“especially common in the field of drugs,” in part states that the
product is “not defective, nor is it unreasonably dangerous” where it
is “properly prepared, and accompanied by proper directions and
warning.” R ESTATEMENT (S ECOND) OF T ORTS § 402A, Comment k.

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to amend to include a proposed amended complaint. Rollins’s
request neither included a proposed amended complaint nor
otherwise indicated that she would be able to plead sufficient
facts to state a plausible claim for relief. As a result, “it could
hardly have been an abuse of discretion” for the district court to
deny leave to amend. Confederate Mem’l Ass’n, Inc. v. Hines,
995 F.2d 295, 299 (D.C. Cir. 1993).
To the extent Rollins separately objects, summarily, that the
district court erred in dismissing her claim against the
pharmaceutical companies with prejudice, Federal Rule of Civil
Procedure 41(b) provides, in part, that “[u]nless the dismissal
order states otherwise, [an involuntary dismissal] — except one
for lack of jurisdiction, improper venue, or failure to join a party
under Rule 19 — operates as an adjudication on the merits.”
See Costello v. United States, 365 U.S. 265, 285–86 (1961).
Adjudication on the merits in this context means dismissal with
prejudice. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531
U.S. 497, 505–06 (2001). This court has instructed that
“dismissal with prejudice is warranted only when a trial court
determines that the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency.”
Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)
(internal quotation marks omitted). Applying this standard in
Belizan, the court observed that “[t]he standard for dismissing
a complaint with prejudice is high.” 434 F.3d at 583. Most
recently in Rudder, the court reaffirmed that “[d]ismissal with
prejudice is the exception, not the rule, in federal practice,
because it ‘operates as a rejection of the plaintiff’s claims on the
merits and [ultimately] precludes further litigation of them.’”
666 F.3d at 794 (quoting Belizan, 434 F.3d at 583, and citing see
also Krupski v. Costa Crociere S.p.A, 130 S. Ct. 2485, 2494
(2010) (noting “the preference expressed in the Federal Rules of
Civil Procedure . . . for resolving disputes on their merits”)).

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The Firestone standard is met here. The district court, in
denying Rollins’s request for leave to amend her complaint as
“futile,” found that Rollins “has not indicated that she will be
able to plead sufficient facts to state a claim for relief.” Rollins,
802 F. Supp. 2d at 125 n.10. Although this is not the same as a
determination by the district court that Rollins “could not allege
additional facts that would cure the deficiencies in her
complaint,” Belizan, 434 F.3d at 584, Rollins’s objection to
dismissal of her complaint with prejudice nonetheless fails. Any
new allegations to support a defective product claim under
section 402A of the RESTATEMENT (SECOND ) OF TORTS would
not be “consistent with the challenged pleading,” Firestone, 76
F.3d at 1209, because Rollins’s complaint alleged that the
pharmaceutical companies knew ABILIFY®, when
manufactured as designed, would increase the risk of suicidality
to individuals like her son; indeed, that its warning label
explicitly so stated, see Compl. ¶ 23. It follows, in view of
Comment k to section 402A, that a design defect claim also
would fail in the circumstances pled by Rollins. See supra Part
II.A & n.2. Rollins did not file a motion for reconsideration
pursuant to Federal Rule of Civil Procedure 59(e), see City of
Harper Woods Employees’ Retirement Sys. v. Olver, 589 F.3d
1292, 1304 (D.C. Cir. 2009), and on appeal she has not
identified any alleged facts to cure the deficiencies in her
complaint. Under the circumstances, Rollins’s claims against
the pharmaceutical companies were properly dismissed with
prejudice.
Accordingly, we affirm the order dismissing the complaint.

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KAVANAUGH , Circuit Judge, concurring: I join the
Court’s thorough opinion and add one observation about the
state of this Circuit’s law on dismissals under Rule 12(b)(6) of
the Federal Rules of Civil Procedure.
As the Court correctly explains, when a district court
grants a Rule 12(b)(6) motion to dismiss for failure to state a
claim, that dismissal “operates as an adjudication on the
merits” under Rule 41(b) “[u]nless the dismissal order states
otherwise.” And “an adjudication on the merits” is
synonymous with a dismissal with prejudice. See Semtek
International Inc. v. Lockheed Martin Corp., 531 U.S. 497,
505 (2001). Therefore, 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.
In this case, the District Court’s dismissal order did not
state whether it was with or without prejudice. Under Rule
41(b), we thus must construe the order as a dismissal with
prejudice.
That in turn raises the question of when a dismissal with
prejudice under Rule 12(b)(6) is permissible. Rule 41(b) also
answers that question. By providing that Rule 12(b)(6)
dismissals are with prejudice unless the district court in its
discretion states otherwise, Rule 41(b) indicates that Rule
12(b)(6) dismissals are typically with prejudice and do not
require particular justification by the district court. See
Okusami v. Psychiatric Institute of Washington, Inc., 959 F.2d
1062, 1066 (D.C. Cir. 1992) (Rule 12(b)(6) dismissal for
failure to state a claim “is a resolution on the merits and is
ordinarily prejudicial”). That conclusion is buttressed by
Rule 41(b)’s proviso that dismissals on certain other grounds
– lack of jurisdiction, improper venue, and failure to join a
required party – are without prejudice.
Any potential unfairness that could otherwise result from
this procedural framework is addressed by the Rules in two
ways. First, Rule 15(a) provides that if a defendant files a
motion to dismiss under Rule 12(b)(6) for failure to state a
claim, the plaintiff may amend the complaint as a matter of

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course within 21 days of service of the motion to dismiss.
That aspect of Rule 15(a) ensures, among other things, that
the plaintiff has an opportunity to amend a complaint so as to
avoid dismissal based on a technicality or readily corrected
error that the defendant has identified. Moreover, under Rule
15(a), a district court in its discretion also may grant leave for
a plaintiff to amend a complaint even outside the time period
for amending as a matter of course. Second, under Rules
41(b) and 12(b)(6), a district court has discretion to dismiss a
complaint without prejudice when the district court concludes
that the circumstances so warrant. In short, Rules 12(b)(6),
15, and 41(b) work in tandem to establish a fair and efficient
process for civil plaintiffs and defendants alike.
But as District Judge Bates has perceptively noted, this
Court’s case law on Rule 12(b)(6) dismissals is not fully
aligned with the Rules. See In re Interbank Funding Corp.
Securities Litigation, 432 F. Supp. 2d 51, 54-55 & n.4
(D.D.C. 2006). Some of this Court’s cases, without citing
Rule 41(b), have suggested that Rule 12(b)(6) dismissals with
prejudice are disfavored. Those decisions have imposed a
“high” bar for Rule 12(b)(6) dismissals with prejudice. See,
e.g., Belizan v. Hershon, 434 F.3d 579, 583-84 (D.C. Cir.
2006). By their terms, however, it is not evident that the
Rules impose such a constraint on the discretion of district
courts in issuing Rule 12(b)(6) dismissals. On the contrary,
Rule 41(b) contemplates that a Rule 12(b)(6) dismissal
ordinarily operates as a dismissal with prejudice, unless the
district court in its discretion states otherwise.
In any event, I join the Court’s opinion here, which
correctly resolves and analyzes this case under our existing
precedents.

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