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ALTHIN CD MED., INC. v. WEST SUBURBAN KIDNEY CTR.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


January 25, 1995

ALTHIN CD MEDICAL, INC., Plaintiff,
v.
WEST SUBURBAN KIDNEY CENTER, S.C., d/b/a WSKC DIALYSIS SERVICES and SHERMAN LEVINE, M.D., Defendants.

The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 On November 23, 1994, this court dismissed Althin CD Medical Inc.'s ("Althin") amended complaint with prejudice under FED. R. CIV. P. 12(b)(1) because Althin lacked standing to sue. Althin now moves to alter or amend the judgment on the basis that the case should have been dismissed without prejudice.

 A dismissal with prejudice means a dismissal that precludes the plaintiff from bringing a new suit on his claim. Disher v. Information Resources, Inc., 873 F.2d 136, 139 (7th Cir. 1989). Consequently, the plaintiff now brings the present motion for fear that the court's judgment has res judicata consequences and thus serves as an absolute bar to a subsequent action between the two parties. See, e.g., Federal Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 2427, 69 L. Ed. 2d 103 (1981).

 A valid final judgment on the merits is res judicata and is an absolute bar to any later action between the same parties on the same cause of action. Moitie, 452 U.S. at 398. Furthermore, the law is clear that a dismissal for lack of subject matter jurisdiction is not a dismissal on the merits. Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1277 (7th Cir. 1983). Therefore, a judgment dismissing a suit for lack of jurisdiction does not preclude a party from litigating the same cause of action in a court of competent jurisdiction. Magnus Electronics, Inc. v. La Republica Argentina, 830 F.2d 1396, 1400 (7th Cir. 1987); Bunker Ramo, 713 F.2d at 1277. However, it does preclude relitigation of whether the first tribunal had jurisdiction. Magnus Electronics, 830 F.2d at 1400; Harper Plastics, Inc. v. Amoco Chemicals Corp., 657 F.2d 939, 943 (7th Cir. 1981); see also 13 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE & PROCEDURE ยง 4402, at 11 (1994 Supp.). In this case, Althin's amended complaint was dismissed pursuant to FED. R. CIV. P. 12(b)(1) because the court lacked subject matter jurisdiction. Accordingly, the court's judgment will not have frill res judicata effect but will preclude relitigation of the jurisdiction question. In light of that, the court amends the court's order of November 23, 1994, and holds that the case should have been dismissed without prejudice.

 Date: JAN 25 1995

 JAMES H. ALESIA

 United States District Judge

19950125

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