3. Would it be an abuse of discretion to dismiss a complaint with prejudice without the court first granting plaintiff leave to amend? See Gelbach, Note—Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery, 121 Yale L.J.

2270 (2012) (discussing rate of dismissal with leave to amend post-Twombly and post-Iqbal).

If leave to617amend is denied, can plaintiff modify the complaint and re-serve it as a new action, or do principles of res judicata bar that? In SHAW v. MERRITT–CHAPMAN &

SCOTT CORP., 554 F.2d 786 (6th Cir.1977), certiorari denied 434 U.S. 852, 98 S. Ct. 167, 54 L. Ed. 2d 122 (1977), the court held that absent specific language to the contrary by the district court, a dismissal under Rule 12(b)(6) constitutes an adjudication on the merits, and so further actions on the same claim are barred. Is this result too harsh? See 5B Wright &

Miller, Federal Practice and Procedure: Civil 3d § 1357. Reconsider this question in the context of whether discovery should be permitted during the pendency of a Rule 12(b)(6) motion, see p. 855, infra.