Ralph Howell - Page 14




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          parties and their privies to the prior judgment; (4) the parties            
          must actually have litigated the issues and the resolution of               
          these issues must have been essential to the prior decision; and            
          (5) the controlling facts and applicable legal rules must remain            
          unchanged from those in the prior litigation.  Peck v.                      
          Commissioner, 90 T.C. 162, 166-167 (1988), affd. 904 F.2d 525               
          (9th Cir. 1990).                                                            
               The statement in the Court of Appeals’ opinion in Beall does           
          not establish that respondent failed to return documents or that            
          respondent returned other documents in disarray.  First,                    
          petitioner was not a party to the dispute in Beall.  Second, as             
          respondent correctly notes, the Court of Appeals’ opinion in                
          Beall related to the review of a District Court’s decision to               
          grant a motion of respondent’s that was treated as a motion to              
          dismiss for failure to state a claim upon which relief could be             
          granted pursuant to rule 12(b)(6) of the Federal Rules of Civil             
          Procedure.  Pursuant to that rule:                                          
               “a claim may be dismissed when a plaintiff fails to                    
               allege any set of facts in support of his claim which                  
               would entitle him to relief,” and “the court accepts as                
               true the well-pled factual allegations in the                          
               complaint, and construes them in the light most                        
               favorable to the plaintiff.”                                           
          Beall v. United States, 335 F. Supp. 2d at 747 (quoting Taylor v.           
          Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002))                   
          (internal citations removed).  Applying this standard, both the             
          District Court and the Court of Appeals were required to accept             






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