It is undisputed that a Rule 41(b) dismissal for failure to prosecute is, by default, an adjudication on the merits. Fed. R. Civ. P. 41(b); see also Bragg v. Flint Bd. of Educ., 570 F.3d 775, 777 (6th Cir. 2009) (holding that because Plaintiff's prior suit had been dismissed pursuant to Fed. R. Civ. P. 41(b), there was a final decision on the merits). The plain language of the rule makes clear that this result can be avoided only if "the dismissal order states otherwise."

See Allied Erecting and Dismantling Co., Inc. v. Genesis Equip. & Mfg., Inc., 805 F.3d 701, 708 (6th Cir. 2015). “Pursuant to the doctrine of res judicata, ‘a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.'” Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009) (quoting Montana v. United States, 440 U.S. 147, 153 (1979) (citations omitted)). Res judicata applies if all of the following are present: “(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their ‘privies'; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.” Id. (quoting Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir. 1997)).

Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009).

Application of the doctrine of res judicata is also a question of law to be reviewed de novo. Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009). Analysis

This Court reviews de novo a district court's application of the doctrine of res judicata. Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009). The party asserting the defense of res judicata bears the burden of proof.

“Pursuant to the doctrine of res judicata, ‘a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.'” Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009);

“Pursuant to the doctrine of res judicata, ‘a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.'” Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009); quoting Montana v. United States, 440 U.S. 147, 153 (1979).

“Pursuant to the doctrine of res judicata, ‘a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.'” Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009); quoting Montana v. United States, 440 U.S. 147, 153 (1979). The term “res judicata” literally means “a thing adjudged” or “a matter decided.” 46 Am. Jur. 2d Judgments § 442.

The Magistrate Judge suggests that Bardes's Complaint is meritless because claim preclusion (or res judicata) bars it. (Doc. 28, #333). Claim preclusion is a legal doctrine which provides that “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)).

Either way, a party doesn't get a do-over. Montana v. United States, 440 U.S. 147, 153 (1979); Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009).