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Cayuga Indian Nation of New York v. Seneca County

United States District Court, W.D. New York

April 30, 2017

CAYUGA INDIAN NATION OF NEW YORK, Plaintiff,
v.
SENECA COUNTY, NEW YORK, Defendant.

          For Plaintiff: Daniel J. French, Esq. Lee Alcott, Esq.

          For Defendant: Brian Laudadio, Esq. Louis P. DiLorenzo, Esq. Mary P. Moore, Esq.

          DECISION AND ORDER

          CHARLES J. SIRAGUSA United States District Judge

         INTRODUCTION

         This action challenges Seneca County‘s ability to impose and collect ad valorem property taxes on parcels of real estate owned by the Cayuga Indian Nation of New York. The Cayuga Nation contends both that Seneca County cannot impose the property taxes, because the subject properties are “located within an Indian reservation, ”[1] and cannot sue to collect the taxes, because the Cayuga Indian Nation enjoys sovereign immunity from suit.[2] Now before the Court is the Cayuga Nation's motion (Docket No. [#39]) to dismiss Seneca County's counterclaim, which seeks a declaratory judgment that the subject properties, which the Cayugas ostensibly sold two centuries ago and then recently re-purchased, “are not now an Indian reservation for purposes of New York Real Property Tax Law § 454 or Indian Law § 6 or [‘]Indian Country[‘] for purposes of 18 U.S.C. § 1151.” The application is granted.

         BACKGROUND

         Unless otherwise indicated, the following facts are taken from Seneca County's “Answer to Amended Complaint and Counterclaim, ”[3] and are presumed to be true for purposes of this Decision and Order. In February 1789, the Cayuga Nation and the State of New York signed a treaty, which, among other things, established a 64, 000-acre Cayuga Indian Reservation. Between 1795 and 1807, the Cayuga Nation sold all of the Cayuga Indian Reservation lands to the State of New York. The State of New York subsequently sold those lands to private third parties. In 1838, the United States and the Cayuga Indians entered into the Treaty of Buffalo Creek, which, Seneca County maintains, disestablished any remaining Cayuga Reservation in New York. In recent years, the Cayuga Nation purchased at least five parcels of land in Seneca County, within the same geographic area as the Cayuga Indian Reservation that was established in 1789. Seneca County imposed property taxes on the Cayuga-owned properties, but the Cayuga Nation refused to pay the taxes. Thereafter, Seneca County initiated tax foreclosure proceedings against the Cayuga Nation.

         In response to those foreclosure lawsuits, the Cayuga Nation commenced this lawsuit. The Cayugas' Amended Complaint purports to assert two causes of action. The first cause of action alleges that the County's attempts to foreclose on the Cayugas' properties violate federal law, and specifically, the Treaty of Canandaigua, the U.S. Constitution Article I, § 8, and the “Non-Intercourse Act, ” 25 U.S.C. § 177. On this point, the Cayugas' pleading alleges that any properties which the Cayugas own in Seneca County are within the geographic boundary of the 64, 000-acre Cayuga Indian Reservation that was “acknowledged [by the United States of America] in the Treaty of Canandaigua, November 11, 1794.”[4] The Amended Complaint contends that, while the Cayuga Nation purportedly sold all of that 64, 000-acre reservation to the State of New York, such sales were void ab initio, since they were never approved by Congress as required by the Non-Intercourse Act.[5] Consequently, the pleading asserts, “the Nation's 64, 000-acre reservation continues to exist to this day, ” and the subject properties are “‘Indian Country' within the meaning of 18 U.S.C. § 1151.”[6] Alternatively, the Cayugas contend that regardless of the reservation status of the subject land, the Cayuga Nation possesses “tribal sovereign immunity, which bars administrative and judicial proceedings against the Nation and bars Seneca County from taking any assets of the Nation.”[7]

         In sum, the Cayugas' first cause of action is twofold: 1) the subject properties are part of the federally-recognized Cayuga Indian Reservation, and the County therefore cannot foreclose on the properties, because it lacks the authority to interfere with the ownership or possession of federal Indian reservation lands; and 2) the “Cayuga Indian Nation of New York” is a “sovereign Indian nation, ” which is protected from foreclosure lawsuits by the federal doctrine of sovereign immunity from suit.[8]

         The Cayugas' second cause of action alleges that Seneca County violated two New York statutes -- New York State Property Tax Law § 454 and New York Indian Law § 6 -- by assessing property taxes on their properties. On this point, the pleading contends that both of those statutes forbid the imposition of taxes on “Indian reservation” lands. See, Amended Complaint [#9] at ¶ ¶ 21-22 (“New York [Real Property Tax Law § 454] provides that ‘real property in any Indian reservation owned by the Indian nation, tribe or band occupying them shall be exempt from taxation[, while] New York Indian Law § 6 directs that no taxes shall be established upon Indian Reservation lands. . . . Pursuant to the aforesaid provision[ ] of state law, taxes should not have been assessed against the Nation-owned properties[.]”).

         As for relief, the Cayugas' pleading seeks two types. First, the Amended Complaint seeks a declaration that the County cannot foreclose on, or otherwise “acquire, convey, sell or transfer title” to, “Nation-owned properties” within Seneca County. Second, the Amended Complaint seeks an injunction, prohibiting the County from making “any further efforts” to foreclose on, acquire, convey or otherwise sell “Nation-owned properties in Seneca County;” prohibiting the County from “interfering in any way with the Nation's ownership, possession, and occupancy of such lands;” and requiring the County to “rescind all acts taken to acquire, convey, foreclose, sell or transfer title to Nation-owned properties within Seneca County to date.”

         When the Cayugas commenced this action, they also filed a motion for preliminary injunctive relief, barring Seneca County from proceeding with pending foreclosure actions, affecting the five parcels identified in the Amended Complaint, on the basis of sovereign immunity. On August 20, 2012, the Court granted such preliminary injunctive relief. Cayuga Indian Nation of New York v. Seneca County, New York, 890 F.Supp.2d 240 (W.D.N.Y. 2012). Seneca County appealed, but on July 31, 2014, the United States Court of Appeals for the Second Circuit affirmed this Court's ruling, agreeing that the Cayuga Indian Nation has sovereign immunity from suit. Cayuga Indian Nation of New York v. Seneca County, New York, 761 F.3d 218 (2d Cir. 2014).

         On August 31, 2015, Seneca County filed its Answer to Amended Complaint and Counterclaim [#37]. The counterclaim seeks a declaratory judgment “that the Subject Properties are not now an Indian reservation for purposes of New York Real Property Tax Law § 454 or Indian Law § 6 or Indian country for purposes of 18 U.S.C. § 1151.” The pertinent factual allegations supporting the counterclaim are as follows:

On or about July 27, 1795, the Nation entered into a treaty with the State of New York under which New York acquired the entire “Original Reservation, ” except for a three-square mile parcel. In 1807, the State of New York purchased the remaining three-square mile parcel . . . from the Nation. The Treaty of Buffalo Creek of 1838 was ratified by the Senate and proclaimed by the President of the United States. The Treaty of Buffalo Creek of 1838 disestablished any Nation reservation in New York. As a result of the foregoing, any and all right, title, and interest of the Nation to the “Original Reservation” had lawfully extinguished and the State of New York held full title to these lands[, which they later sold to ] private successors in interest. . . . The subsequent history and treatment of the land located within what had been the “Original Reservation” demonstrate and confirm that the former Nation reservation was disestablished long ago.

         Answer to Amended Complaint with Counterclaim [#37] at ¶ ¶ 32-37, 39 (emphasis added; paragraph numbers omitted). Thus, Seneca County's contention that the Cayuga Indian Reservation does not presently exist has two primary components: First, that the reservation was disestablished by the Treaty of Buffalo Creek; and second, that such disestablishment has been “demonstrated and confirmed” by the “subsequent history and treatment of the land.”[9] The counterclaim seeks the dismissal of the Amended Complaint, and a declaration that “the former Nation reservation has been disestablished as to the subject lands and that the lands that were formerly the “Original Reservation” are neither “Indian country” nor part of an “Indian reservation[.]”

         On October 8, 2015, the Cayuga Nation filed the subject motion [#39] to dismiss the counterclaim. The Nation first contends that the counterclaim is “non-justiciable” because it is barred by sovereign immunity. In particular, the Nation asserts that by bringing this action, it “did not expressly or impliedly consent to an adjudication of its reservation status in the abstract.”[10] The Nation admits that there is an exception to sovereign immunity, which permits a counterclaim that “mirrors” the sovereign's claim, but contends that Seneca County's counterclaim does not mirror the Nation's claim. Further, the Nation contends that to the extent that the counterclaim mirrors the Nation's claim, it is still non-justiciable because the counterclaim is redundant of the Nation's claim, and does not present an independent case or controversy.

         As a second basis for dismissal, the Nation contends that the counterclaim is barred by collateral estoppel. In particular, the Nation contends that the Seneca County Sheriff and Seneca County District Attorney unsuccessfully litigated the same argument that Seneca County is raising here - that the Cayuga Reservation was disestablished by the Treaty of Buffalo Creek - in Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614, 930 N.E.2d 233 (“Gould”), cert den., 562 U.S. 953 (2010). The Nation contends that because the Seneca County Sheriff and Seneca County District Attorney were sued in their official capacities in Gould, they are in sufficient privity with Seneca County, such that collateral estoppel should apply to the County in this action.

         As the third and last basis for its motion to dismiss the counterclaim, the Nation contends that the counterclaim fails to state an actionable claim as a matter of law, since “binding precedent” and other Second Circuit case law establishes that the Cayuga Reservation still exists. In particular, the Nation contends that the Second Circuit Court of Appeals has determined that the similarly-situated Oneida Indian Reservation continues to exist, and was not disestablished by the Treaty of Buffalo Creek, citing, inter alia, Oneida Indian Nation of New York v. City of Sherrill, New York, 337 F.3d 139 (2d Cir. 2003), reversed and remanded, 544 U.S. 197, 125 S.Ct. 1478 (2005) and Oneida Indian Nation of N.Y. v. Madison County, 605 F.3d 149, 157 n. 6 (2d Cir. 2010), vacated as moot, 562 U.S. 42 (2011).

         The Cayuga Nation's motion to dismiss is purportedly made pursuant to both Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). It appears that the “justiciability” arguments (sovereign immunity and lack of independent case or controversy) are made under Rule 12(b)(1), while the collateral estoppel and merits-based arguments are made under Rule 12(b)(6).

         Seneca County opposes every aspect of the Cayuga Nation's motion to dismiss. Seneca County first contends that the counterclaim is justiciable, because the counterclaim is the “mirror” of the Cayugas' claim and therefore is not barred by sovereign immunity, and because the counterclaim involves an independent case or controversy, namely, whether the County can impose taxes on Nation-owned properties. The County further contends that collateral estoppel does not apply to the counterclaim, because there is no privity between Seneca County and the County Sheriff and District Attorney who were sued in Gould; because the relevant issue in Gould was an issue of law, to which collateral estoppel does not apply; and because the issue in Gould was different inasmuch as it involved a different statute (New York Tax Law § 470(16)(a)) than the ones involved in this lawsuit. Finally, the County contends that the counterclaim has merit, and is not foreclosed by the case precedent upon which the Cayuga Nation relies. For example, the County contends that the Second Circuit's decisions cited by the Cayugas involved the Oneida Indian Nation, not the Cayuga Nation, and that the two nations are not similarly situated. Further, the County urges this Court not to follow district court decisions which have found that the Cayuga Reservation still exists.

         The Cayuga Nation filed a reply in which it reiterates the arguments in its motion to dismiss. Additionally, with regard to collateral estoppel, the Cayugas' reply raises a new argument, namely, that Seneca County should be deemed to be in privity with the county officials who were involved in the Gould lawsuit, because Seneca County funded and controlled the legal defense for those county officials. As for the merits of the counterclaim, the Cayugas maintain that the counterclaim fails to plausibly plead how the Cayuga Reservation was disestablished.

         On June 15, 2016, the Cayuga Nation submitted a supplemental letter brief, concerning the Supreme Court's then-recent decision in Nebraska v. Parker, 136 S.Ct. 1072, 2016 WL 1092417 (2016) (“Parker”), which involved an analysis of whether Congress had disestablished an Omaha Indian reservation in Nebraska. The Cayugas argue that Parker supports their contention that the counterclaim lacks merit. Seneca County responds that Parker is factually inapposite.

         The Court indicated, prior to briefing on the motion to dismiss the counterclaim, that it would only schedule oral argument if necessary. (Docket No. [#36]). The Court has determined that oral argument is not necessary.

         STANDARDS OF LAW

         Where the Court has before it motions under both 12(b)(1) and 12(b)(6), it should address the 12(b)(1) motion first. See, Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (“[T]he court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.”) (citations and internal quotation marks omitted).

         FRCP 12(b)(1): Sovereign Immunity and Case or Controversy Requirement[11]

         “A complaint must be dismissed under Rule 12(b)(1) ‘when the district court lacks the statutory or constitutional power to adjudicate' the case.” McMillan v. N.Y. State Bd. of Elections, 449 F.App'x 79, 80 (2d Cir. 2011) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)). The standard to be applied on such a motion is as follows:

In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction. But where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits. In that case, the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.

Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citations and internal quotation marks omitted).

         The Counterclaim is Not Barred by Sovereign Immunity, and Involves an Actual Case or Controversy

         The Cayuga Nation contends that the County's counterclaim is barred by sovereign immunity from suit. On this point, the Cayugas argue that their sovereign immunity bars a counterclaim that seeks “anything beyond the ‘mirror image' of the Nation's affirmative claims, ” which, they maintain, the County's counterclaim does. Alternatively, the Cayugas contend that if the counterclaim “mirrors” their own claim for relief, then it fails to state an independent case or controversy, since the County would face no injury if the Cayugas discontinued this action. Seneca County responds that its counterclaim “mirrors” the Cayugas' claim, and that the Cayugas waived sovereign immunity on this issue by raising it in the Amended Complaint.[12] Seneca County further argues that the counterclaim is independently justiciable, and presents an actual case or controversy, because the Cayugas continue to refuse to pay their property taxes to the County, based on their contention that the subject property is part of the Cayuga Reservation.

         The Court has already determined that the Cayuga Nation cannot be sued in the underlying foreclosure actions, because it enjoys sovereign immunity from suit. In that regard, the Court pointed out that an Indian tribe generally cannot be sued unless it consents to be sued, or unless Congress authorizes the lawsuit. “This principle extends to counterclaims lodged against a plaintiff tribe-even compulsory counterclaims.” Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 790 F.3d 1000, 1009 (10th Cir. 2015) (citing Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509-10, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991)[13]). Since there is no suggestion that Congress authorized Seneca County's counterclaim, the issue is whether the Cayuga Nation waived its sovereign immunity as to the counterclaim, by bringing this action.

         The U.S. Supreme Court has held that an Indian tribe does “not waive its sovereign immunity” as to counterclaims “merely by filing an action for injunctive relief.” Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. at 510, 111 S.Ct. at 909. However, where an Indian tribe seeks a declaration that a particular fact is true, e.g., that its reservation still exists, it necessarily waives its sovereign immunity as to a counterclaim seeking the exact opposite declaration. That is, the Indian tribe has agreed to be bound by the court's determination of the question that the tribe has presented, whether or not it is favorable to the tribe. See, Tohono O'odham Nation v. Ducey, 174 F.Supp.3d 1194, 1204 (D. Ariz. 2016) (“Having placed a question before the court, a sovereign acknowledges the court's authority to resolve that question, whether in favor of the sovereign or in favor of a counterclaimant seeking the opposite resolution.”) (citations omitted); see also, Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1245 (8th Cir. 1995) (“We will not transmogrify the doctrine of tribal immunity into one which dictates that the tribe never loses a lawsuit. When the Tribe filed this suit, it consented to and assumed the risk of the court determining that the Tribe did not have title to the disputed tracts.”) (citation omitted); McClendon v. United States, 885 F.2d 627, 630 (9th Cir. 1989) (“Initiation of a lawsuit necessarily establishes consent to the court's adjudication of the merits of that particular controversy.”).

         The Cayuga Nation concedes that mirror-image counterclaims are not precluded by sovereign immunity.[14] Nevertheless, the Cayugas maintain that their claims are not the mirror image of the counterclaim, since their claim makes specific reference to particular statutes, while the counterclaim seeks a determination of the Cayuga reservation's status “in the abstract, disconnected from any specific right or dispute.”[15]The Cayuga Nation contends that because the counterclaim is not a “mirror image, ” it is barred by sovereign immunity.

         However, the Court disagrees, and finds that the counterclaim is the “mirror image” of the Cayugas' claim. In particular, the counterclaim seeks a declaration that the Cayuga-owned properties in Seneca County “are not now an Indian reservation for purposes of New York Real Property Tax Law § 454 or Indian Law § 6 or Indian Country for purposes of 18 U.S.C. § 1151, ”[16] because the reservation was disestablished. This position is precisely the opposite of what the Cayuga Nation contends in the Amended Complaint. In that regard, the Amended Complaint [#9] alleges, inter alia, that the Cayuga Reservation was never disestablished, and therefore cannot be taxed by Seneca County because it is “‘Indian country' within the meaning of 18 U.S.C. § 1151" (¶ 8) and an “Indian reservation” as described in NYRPTL § 454 and Indian Law § 6 (¶ 21). The Court concludes that the Cayuga Nation has thus waived its sovereign immunity as to the counterclaim, and its motion to dismiss the counterclaim is denied insofar as it is based upon sovereign immunity.

         The Cayugas nevertheless contend, alternatively, that if the counterclaim mirrors the claims in the Amended Complaint, then the Court lacks subject-matter jurisdiction to consider the counterclaim, since the counterclaim fails to present an independent case or controversy. On this point, the Cayugas cite, inter alia, Arista Records LLC v. Usenet.com, Inc., No. 07 Civ. 8822(HB), 2008 WL 4974823 (S.D.N.Y. Nov. 24, 2008) and Maverick Recording Co. v. Chowdhury, Nos. 07 Civ. 200 & 07 Civ. 640, 2008 WL 3884350 (E.D.N.Y. Aug. 19, 2008), for the proposition that claims must be dismissed where they are “redundant” and “serve[ ] no independent purpose, but [are] rather only . . . the ‘mirror image' of [the] opposing party's claim.” The Cayugas maintain that the counterclaim is merely a “mirror image, ” since, if the Tribe's claims were discontinued, there would no longer be any dispute between the Cayuga Nation and Seneca County. Further, the Cayugas maintain that the counterclaim seeks “a ruling on the Nation's reservation status in the abstract, disconnected from any specific right or dispute, ” and therefore is not the proper subject of a declaratory judgment action.

         However, the Court again disagrees. To begin with, it is clear from the pleadings that there is a real, not speculative, ongoing disagreement between the parties as to whether the Nation-owned properties are taxable, because they are Indian-reservation lands, regardless of whether the County is presently able to collect any taxes imposed.[17] Even if the Cayuga Nation discontinued its lawsuit, there is every indication that the Cayuga Nation will continue to own real estate in Seneca County, and that the County will continue to impose property taxes annually on such lands, unless it is demonstrated that such lands cannot be taxed. The Cayuga Nation contends that its lands should not be taxed, pursuant to RPTL § 454, Indian Law § 6 and 18 U.S.C. § 1151, and the County disagrees. Consequently, under the totality of the circumstances[18] presented, the Court finds that the counterclaim presents an independent case or controversy.

         For the same reason, the Court does not agree with the Cayuga Nation that the counterclaim merely raises an “abstract question.”[19] On this issue, the legal standard is as follows:

The difference between an abstract question and a ‘controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). The Court finds that there is a substantial controversy between the parties, concerning the County's ability to tax the Nation's lands, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. For all of these reasons, the Court finds that the Cayuga Nation's arguments concerning the “justiciability” of the counterclaim lack merit.

         Collateral Estoppel

         Seneca County's counterclaim contends that the subject Nation-owned properties in Seneca County are “neither ‘Indian country' nor part of an ‘Indian reservation, '” because, after the Cayuga Nation sold all of its lands to the State of New York, “[t]he Treaty of Buffalo Creek of 1838 disestablished any [Cayuga] Nation reservation in New York.”[20] This contention is the basis for the counterclaim's assertion that “the subject properties are not now an Indian reservation for purposes of [RPTL] § 454 or Indian Law § 6 or Indian country for purposes of 18 U.S.C. § 1151.”[21] The Cayuga Nation counters that this claim is barred by collateral estoppel, because in Gould, the New York Court of Appeals specifically held that the Treaty of Buffalo Creek did not disestablish the Cayuga Reservation. The Cayuga Nation argues that while Seneca County was not actually a party in Gould, it is nonetheless bound by Gould, since the Seneca County Sheriff and Seneca County District Attorney, who were defendants in Gould, are in privity with the County, inasmuch as the Sheriff and District Attorney were sued in their official capacities.[22] The County denies that it is in privity with those county officials, [23] and also denies that the issue presented in this action is the same issue decided in Gould.

         The Cayuga Nation's collateral estoppel argument is made pursuant to FRCP 12(b)(6), and the standard for determining such motions is clear:

To 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. We construe all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor.[24] In its review, the Court is entitled to consider facts alleged in the complaint and documents attached to it or incorporated in it by reference, documents “integral” to the complaint and relied upon in it, and facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

Heckman v. Town of Hempstead, No. 13-1379-cv, 568 F.App'x 41, 43 (2d Cir. Jun. 3, 2014) (citations and internal quotation marks omitted).

         Collateral estoppel is an affirmative defense. See, Austin v. Fischer, 453 F.App'x 80, 82, 2011 WL 6450728 at *1 (2d Cir. Dec. 23, 2011) (“Issue preclusion, or collateral estoppel, is an affirmative defense that normally must be pled in a timely manner or it may be waived.”) (citation and internal quotation marks omitted). A Rule 12(b)(6) motion to dismiss based upon an affirmative defense cannot be granted unless it is clear from the face of the pleading that the claim is barred as a matter of law. See, Deswal v. U.S. Nat. Ass'n, 603 F.App'x 22, 23-24 (2d Cir. Mar. 12, 2015) (“Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint.”) (citations omitted); see also, Garcia v. Does, 779 F.3d 84, 96-97 (2d Cir. 2015) (“It is certainly true that motions to dismiss a plaintiff's complaint under Rule 12(b)(6) on the basis of an affirmative defense will generally face a difficult road.”).

         Particularly as to 12(b)(6) motions concerning collateral estoppel, the Second Circuit has stated:

When a defendant raises the affirmative defense of . . . collateral estoppel and it is clear from the face of the complaint that the plaintiff's claims are barred as a matter of law, dismissal ...

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