
    JONES v. MILLER et al.
    No. 2168.
    District Court, W. D. Pennsylvania.
    Sept. 14, 1942.
    Carl E. dock and Reed, Smith, Shaw & McClay, all of Pittsburgh, Pa., for plaintiff.
    Miller & Nesbitt and Oliver K. Eaton, all of Pittsburgh, Pa., for defendants.
   McVICAR, District Judge.

This action is before us now on defendants’ motion under Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to dismiss, on the ground that the complaint fails to state a claim upon which relief can be granted.

At the oral argument, defendants’ attorney argued two reasons in support of the motion, the principal reason being res judicata. Under Rule 8(c) res judicata is deemed an affirmative defense. The complaint in this action avers facts meagerly which defendants rely upon as res judicata, but these facts are not sufficiently averred so that the Court can determine whether the same constitutes res judicata or not. I am of the opinion that the facts in this case should be more fully developed before the questions involved are passed upon by this Court; and for the reason that the Court cannot say under Rule 12(b) that the complaint fails to state a claim upon which relief can be granted, the motion to dismiss should be refused.  