[Cite as Saha v. Research Inst. at Nationwide Children's Hosp., 2013-Ohio-4203.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Kunal Saha,                                          :

                Plaintiff-Appellant,                 :                      No. 12AP-590
                                                                        (C.P.C. No. 11CV-14336)
v.                                                   :
                                                                      (REGULAR CALENDAR)
Research Institute at Nationwide                     :
Childrens Hospital,
                                                     :
                Defendant-Appellee.
                                                     :




                                         D E C I S I O N

                                  Rendered on September 26, 2013



                Dagger, Johnston, Miller, Ogilive & Hampson, LLP, and
                D. Joe Griffith, for appellant.

                Vorys, Sater, Seymour and Pease, Jonathan R. Vaughn and
                Taryn M. Filo, for appellee.

                  APPEAL from the Franklin County Court of Common Pleas

McCORMAC, J.

        {¶ 1} Plaintiff-appellant, Dr. Kunal Saha, appeals from the June 19, 2012 decision
of the Franklin County Court of Common Pleas granting the motion to dismiss, converted
to a motion for summary judgment, filed by defendant-appellee, the Research Institute at
Nationwide Children's Hospital ("the Institute").
I. Facts and Procedural History
        {¶ 2} In June 1998, Dr. Saha accepted a joint appointment as a research faculty
member at the Institute and a tenure-track assistant professor in The Ohio State
No. 12AP-590                                                                             2


University's Department of Pediatrics, College of Medicine. See Saha v. The Ohio State
Univ., 10th Dist. No. 10AP-1139, 2011-Ohio-3824, ¶ 3-4.
       {¶ 3} In Saha, this court provided a detailed account of Dr. Saha's time with the
Institute and The Ohio State University ("OSU"). We found, in pertinent part:
                 Dr. Saha's position was that of a primary researcher. He was
                 placed in charge of a lab and given a support staff and post-
                 doctoral students for his work in AIDS research. Dr. Saha was
                 simultaneously employed by both OSU and the Columbus
                 Children's Hospital as a member of the Children's Research
                 Institute ("CRI").

                 ***

                 In December 2001, Dr. Saha travelled to India to lecture at an
                 AIDS conference. He was scheduled to return in a few weeks.
                 Dr. Saha testified that, while in India, his lawyers petitioned
                 the Federal Supreme Court of India to allow Dr. Saha's
                 criminal negligence case against his deceased wife's doctors to
                 proceed to trial. This was allowed by the court on the
                 condition that Dr. Saha attend the trial.

                 Dr. Saha remained in India through January and February
                 2002. In early March, Dr. Saha requested a leave of absence
                 which was approved by the OSU Board of Trustees at their
                 April 5, 2002 meeting.

                 Dr. Saha returned to Columbus at the end of April 2002. On
                 May 1, 2002, Dr. Saha was informed that his CRI internal
                 support package for his laboratory research would end
                 June 30, 2002.

                 ***

                 Dr. Saha testified that the loss of internal support reduced his
                 lab staff from five or six to two or three with which he was
                 unable to continue with his research at the same level as
                 before.

Id. at ¶ 4-12.
       {¶ 4} Dr. Saha continued his laboratory work, but the reduction in financial
support and resources "had a negative effect on [his] overall research progress." (R. 24,
Dr. Saha's Affidavit, at 1, hereinafter "Saha Affidavit, at ___.".) After a lengthy, multi-
No. 12AP-590                                                                               3


level promotion and tenure review process, Dr. Saha was informed on September 25,
2005, that OSU would not be offering him tenure.
       {¶ 5} In July 2005, Dr. Saha filed a lawsuit against the Institute and OSU in the
United States District Court for the Southern District of Ohio, Eastern Division ("Lawsuit
I"), but the court dismissed the action on October 26, 2005 for lack of subject-matter
jurisdiction and failure to exhaust administrative remedies. Saha v. The Ohio State Univ.,
S.D.Ohio No. 05-CV-675 (Oct. 26, 2005). On March 13, 2006, Dr. Saha re-filed his suit in
the United States District Court ("Lawsuit II"), naming as defendants the Institute, OSU,
and several employees from the Institute and OSU. Saha v. The Ohio State Univ.,
S.D.Ohio No. 2:06-CV-190 (Feb. 1, 2007). On June 28, 2006, Dr. Saha filed an amended
complaint, which named additional OSU employees as defendants. Dr. Saha's amended
allegations against the Institute included federal claims for breach of contract, pursuant to
42 U.S.C. 1981, violation of equal protection and due process, pursuant to 42 U.S.C. 1983,
and race and national origin discrimination under Title VII, as well as state law claims for
unjust enrichment, intentional infliction of emotional distress, and discrimination under
R.C. 4112.99.
       {¶ 6} In its February 1, 2007 decision, the federal District Court held that Dr.
Saha's federal law claims failed to state a cause of action against the Institute. Having
dismissed all of Dr. Saha's federal law claims, the court declined to exercise its
supplemental jurisdiction over Dr. Saha's state law claims, dismissing those claims
without prejudice. The U.S. Sixth Circuit Court of Appeals affirmed the United States
District Court's judgment on January 9, 2008.         Saha v. The Ohio State Univ., 259
Fed.Appx. 779 (6th Cir.2008).
       {¶ 7} In early 2007, Dr. Saha filed a new lawsuit ("Lawsuit III") in the Court of
Claims of Ohio against OSU and several OSU employees which set forth claims for breach
of contract, discrimination, and defamation. See Saha v. The Ohio State Univ., Ct of Cl.
No. 2007-02050, 2010-Ohio-5906. The Court of Claims found in favor of OSU and the
individual defendants; this court affirmed the trial court's judgment on August 4, 2011.
See Saha, 2011-Ohio-3824.
       {¶ 8} On November 18, 2011, Dr. Saha filed his complaint in the instant action,
alleging two separate claims for breach of contract. On December 19, 2011, the Institute
No. 12AP-590                                                                                 4


filed a motion to dismiss, asserting both judicial estoppel and res judicata applied to bar
Dr. Saha's claims. Dr. Saha filed a memorandum in opposition on January 30, 2012. On
June 19, 2012, the trial court issued a decision and entry converting the Institute's
motion to dismiss to a motion for summary judgment pursuant to Civ.R. 12(B), and
granting the motion in the Institute's favor. Specifically, the trial court declined to apply
judicial estoppel, but held the doctrine of res judicata applied to bar Dr. Saha's claims.
II. Assignments of Error
         {¶ 9} Dr. Saha timely appeals the trial court's judgment and sets forth a single
assignment of error for review:
                The Trial Court erred in dismissing Appellant's Complaint
                based upon the doctrine of res judicata.

         {¶ 10} Additionally, the Institute has filed a cross-appeal raising one assignment of

error:

                The trial court erred in declining to apply judicial estoppel to
                bar Appellant from bringing his present claims in light of his
                failure to disclose these claims in his bankruptcy proceedings.

III. Standard of Review
         {¶ 11} Pursuant to Civ.R. 56(C), summary judgment "is a procedural device
designed to terminate litigation and to avoid a formal trial where there is nothing left to
try." Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992), citing
Norris v. Ohio Std. Oil Co., 70 Ohio St.2d 1, 2 (1982). As such, "[i]t must be awarded
with caution, resolving any doubts and construing all the evidence against the moving
party." Id. Summary judgment is appropriate only when: (1) no genuine issue of
material fact remains to be litigated; (2) the moving party is entitled to judgment as a
matter of law; and (3) viewing the evidence most strongly in favor of the non-moving
party, reasonable minds can come to but one conclusion, that conclusion being adverse
to the non-moving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66
(1978).
         {¶ 12} Appellate review of summary judgment motions is de novo. Nye v. Univ. of
Toledo, 10th Dist. No. 12AP-670, 2013-Ohio-2311, ¶ 6, citing Koos v. Cent. Ohio Cellular,
No. 12AP-590                                                                              5


Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994), citing Brown v. Scioto Cty. Bd. of
Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993). When reviewing a trial court's ruling
on summary judgment, the appellate court conducts an independent inquiry, without
deference to the trial court's determination. Id., citing Maust at 107; Brown at 711. We
must affirm the trial court's judgment if any grounds the movant raised in the trial court
support it. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
IV. Appellee's Cross-Assignment of Error - Judicial Estoppel
       {¶ 13} The Institute's cross-assignment of error challenges the trial court's refusal
to apply judicial estoppel to appellant's claims. Because a finding for the Institute on its
cross-assignment of error would bar Dr. Saha from pursuing his present action and
thereby resolve his appeal, we address it first.
       {¶ 14} The judicial estoppel doctrine "precludes a party from assuming a position
in a legal proceeding inconsistent with a position taken in a prior action." Advanced
Analytics Laboratories, Inc. v. Kegler, Brown, Hill & Ritter, L.P.A., 148 Ohio App.3d
440, 2002-Ohio-3328, ¶ 37 (10th Dist.), citing Bruck Mfg. Co. v. Mason, 84 Ohio App.3d
398 (8th Dist.1992); Hilliard v. Lease, 10th Dist. No. 95APE04-473 (Jan. 16, 1996),
appeal not allowed, 76 Ohio St.3d 1419 (July 17, 1996). It is an equitable doctrine
intended to prevent abuse of the judicial process " ' "through cynical gamesmanship,
achieving success on one position, then arguing the opposing to suit an exigency of the
moment." ' " Cristino v. Ohio Bur. of Workers' Comp., 10th Dist. No. 12AP-60, 2012-
Ohio-4420, ¶ 44, quoting Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-
6442, ¶ 25, quoting Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir.1998).
This court has cautioned that judicial estoppel "should be applied with caution in order
to avoid impinging on the truth-seeking function of the courts." Scioto Mem. Hosp.
Assn., Inc. v. Price Waterhouse & Co., 10th Dist. No. 90AP-1124 (Dec. 21, 1993), aff'd in
part and rev'd in part on other grounds, 74 Ohio St.3d 474 (1996).
       {¶ 15} The Institute asserts the doctrine of judicial estoppel precludes Dr. Saha
from pursuing the present litigation because Dr. Saha did not include his claim against
the Institute as a potential asset when he filed a Chapter 13 voluntary bankruptcy petition
in December 2010, nor did he amend his petition to include the subject case until after the
Institute filed its motion to dismiss. In response, Dr. Saha acknowledges that he erred by
No. 12AP-590                                                                                6


failing to disclose his potential claims against the Institute in his bankruptcy petition, but
he maintains judicial estoppel should not apply to bar his present action because his
failure to disclose was inadvertent.
       {¶ 16} The principle that judicial estoppel is not appropriate when a debtor's
failure to disclose a claim in a prior bankruptcy proceeding is inadvertent was recognized
by the Supreme Court of Ohio in Greer-Burger at ¶ 11. See also Lewis v. Weyerhaeuser
Co., 141 Fed.Appx. 420, 426 (6th Cir.2005) (holding "[i]t is well-settled that judicial
estoppel does not apply where the prior inconsistent position occurred because of
'mistake or inadvertence' "), quoting Browning v. Levy, 283 F.3d 761, 776 (6th
Cir.2002); New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (holding it "do[es] not
question that it may be appropriate to resist application of judicial estoppel 'when a
party's prior position was based on inadvertence or mistake' "). Id., quoting John S.
Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir.1995). Though the Greer-
Burger court ultimately found "it [could] be inferred that [plaintiff's] failure to disclose
the claim was not inadvertent," in so holding, the court relied on federal jurisprudence
indicating "judicial estoppel is inappropriate in cases of conduct amounting to nothing
more than mistake or inadvertence." Greer-Burger at ¶ 29, citing In re Johnson, 345
B.R. 816, 823 (Bankr.W.D.Mich.2006), citing Browning at 776. See also White v.
Wyndham Vacation Ownership, Inc., 617 F.3d 472, 478 (6th Cir.2010) (holding that
"[t]o support a finding of judicial estoppel in the bankruptcy context, a court must find,"
(1) the debtor assumed a position that was contrary to the one she asserted under oath
in the bankruptcy proceedings; (2) the bankruptcy court adopted the contrary position
as either a preliminary matter or as part of a final disposition; and (3) the "debtor's
omission did not result from mistake or inadvertence"). Johnson, the federal case cited
by the Greer-Burger court, provides further guidance on when "[a] debtor's failure to
disclose a cause of action might be deemed inadvertent." Id. at 822. Specifically, the
Johnson court held a debtor's omission is inadvertent " 'where the debtor lacks knowledge
of the factual basis of the undisclosed claims,' " where there is " 'no motive for
concealment,' " or where there is an " 'absence of bad faith.' " Id. at 822-23, quoting
Browning at 776; Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894, 895 (6th
Cir.2004). A court may find there is an absence of bad faith where, for instance, the
No. 12AP-590                                                                               7


debtor does not actively conceal the asset and instead takes steps to inform the court
and the trustee of the asset's existence. Id., citing Eubanks. See also Greer-Burger at ¶
29 (finding debtor's omission was not inadvertent based on the three considerations
articulated in Johnson), citing Johnson.
        {¶ 17} Here, Dr. Saha contends the evidence demonstrates that he did not act in
bad faith and "at the most, this was an honest mistake." (Saha Affidavit, at 4.) In his
affidavit submitted with his memorandum contra, Dr. Saha explains that he filed his state
action in the Court of Claims of Ohio in 2007 against both OSU and the Institute, but
when the "Court of Claims denied jurisdiction over [the Institute,] * * * [he] chose not to
litigate both claims at once [in separate courts] and sought to be made whole in [his]
claims from Ohio State." (Saha Affidavit, at 2.) In December 2010, Dr. Saha filed for
Chapter 13 bankruptcy while his case against OSU was pending before this court. Dr.
Saha emphasizes in his affidavit that his bankruptcy petition included his then-pending
OSU case as a potential asset, and asserts that he "failed to realize that [his] potential
claim against [the Institute] * * * should also have been mentioned"; he explains that not
only was there no claim against the Institute pending in 2010, but, since his claims against
OSU and the Institute "were seeking identical damages," he "was not sure if any claims
against [the Institute] would be re-filed at all as of the time of the filing of [his]
bankruptcy." (Saha Affidavit, at 4.) The record shows that this court affirmed the trial
court's judgment in OSU's favor in August 2011 and Dr. Saha brought the instant case
against the Institute on November 18, 2011, "seek[ing] the same damages that [he] had
sought against Ohio State University." (Saha Affidavit, at 3.) See Saha, 2011-Ohio-3824.
Dr. Saha had not amended his bankruptcy documentation to reflect this change by
December 19, 2011 when the Institute filed its motion to dismiss alleging, inter alia,
judicial estoppel based on the 2010 bankruptcy petition. Dr. Saha indicates that he only
"realize[d]" his mistake "after seeing [the Institute's] motion to dismiss," but he then took
steps to amend his petition to include his claim against the Institute. (Saha Affidavit, at
4.) The parties do not dispute that Dr. Saha successfully amended his petition in January
2012.
        {¶ 18} The Institute challenges Dr. Saha's reliance on a "self-serving affidavit,"
claiming it "is not sufficient to show his failure to disclose was inadvertent." (Appellee's
No. 12AP-590                                                                               8


brief, at 40.) However, while " 'a party's unsupported and self-serving assertions, offered
by way of affidavit, standing alone and without corroborating materials * * *, will not be
sufficient to demonstrate material issues of fact,' " an "otherwise-competent affidavit is
not invalid for the sole reason that it is executed by a party and submitted to aver facts
in opposition to summary judgment." TJX Cos., Inc. v. Hall, 183 Ohio App.3d 236,
2009-Ohio-3372, ¶ 30 (8th Dist.), quoting Davis v. Cleveland, 8th Dist. No. 83665,
2004-Ohio-6621; Patel v. Krisjal, L.L.C., 10th Dist. No. 12AP-16, 2013-Ohio-1202, ¶ 35.
"To the contrary, a party's affidavit is competent to create a genuine issue of material
fact if the relevant factual assertions are made on personal knowledge." Id., citing Wolf
v. Big Lots Stores, Inc., 10th Dist. No. 07AP-511, 2008-Ohio-1837, ¶ 12. Thus, because
Dr. Saha's affidavit "do[es] not present mere conclusory assumptions but set[s] forth
matters within [his] personal knowledge," the trial court properly considered it when
determining whether genuine issues of material fact exist which preclude summary
judgment. Id.
       {¶ 19} The Institute further alleges that Dr. Saha's efforts to correct his omission
are of little significance because they came after the Institute filed its motion to dismiss.
See, e.g., White at 480 (holding "efforts to correct an omission that came before the
Defendants filed their motion to dismiss are more important than efforts that came after
the Defendants filed their motion to dismiss"). Although the Institute does not dispute
that Dr. Saha amended his petition in January 2012 to reflect the present case, it points
to jurisprudence cautioning against considering such efforts at the risk of
"encourag[ing] gamesmanship." White at 481. We recognize the importance of
employing such caution when considering whether a debtor's delayed efforts to correct
an omission are of any significance at all where their omission was revealed by a
defendant; nevertheless, we find the present instance involves unique circumstances
which, considered as a whole, raise a genuine issue of material fact as to whether Dr.
Saha's omission in particular was inadvertent. Compare White at 479-80, fn 5 (holding
judicial estoppel was appropriate where debtor had already filed harassment claim
complaint before the EEOC and received a "Notice of Right to Sue" on July 8, 2008, just
one month before she filed for bankruptcy, yet she "did not even (partially) amend her
initial bankruptcy filings, which she made on August 8, [2008], until November 11, 2008"
No. 12AP-590                                                                              9


and made "limited and ineffective attempts to correct her initial misfiling"); Lewis at 427-
28 (holding debtor's "minimal alleged effort" to correct her omission was inadequate to
suggest she acted in good faith where she "began the process of filing her discrimination
claim with the EEOC only one month after the bankruptcy plan was approved, which
tends to show that she waited until the plan was approved before pursuing her
discrimination action," and she "never sought to amend her bankruptcy schedules, nor
did she file a motion or make any other sort of attempt to inform the bankruptcy court of
her discrimination action").
       {¶ 20} Ultimately, although the Institute claims judicial estoppel is applicable in
the matter sub judice because "[a]ll factors permit the Court to infer that Appellant's
failure to disclose his claims was not inadvertent," when considering the Institute's
motion for summary judgment, this court "is not permitted to weigh evidence or choose
among reasonable inferences." (Appellee's brief, at 32.); Tonti v. E. Bank Condominiums,
L.L.C., 10th Dist. No. 07AP-388, 2007-Ohio-6779, ¶ 25. Instead, we must resolve all
reasonable inferences in favor of Dr. Saha, as the non-moving party, and grant summary
judgment "only when it appears from the evidentiary material that reasonable minds can
only reach a conclusion adverse as to the party opposing the motion."            Dupler v.
Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 120 (1980); Pilz v. Dept. of Rehab. &
Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8.
       {¶ 21} When we apply this standard to the record and construe the evidence in the
light most favorable to Dr. Saha, reasonable minds could differ as to whether Dr. Saha's
failure to disclose his case against the Institute was inadvertent. Accordingly, a genuine
issue of material fact remains in dispute and the trial court did not err in declining to
grant summary judgment in the Institute's favor pursuant to the judicial estoppel doctrine
on Dr. Saha's breach of contract claims. The Institute's cross-assignment of error is
overruled.
V. Appellant's Assignment of Error - Res Judicata
       {¶ 22} Dr. Saha's sole assignment of error challenges the trial court's holding that
res judicata applied to bar his claims against the Institute.
       {¶ 23} "The doctrine of res judicata involves both claim preclusion (historically
called estoppel by judgment in Ohio) and issue preclusion (traditionally known as
No. 12AP-590                                                                                10


collateral estoppel)." (Emphasis sic.) Grava v. Parkman Twp., 73 Ohio St.3d 379, 381
(1995). The present matter implicates the claim preclusion branch of res judicata, which
provides, " '[a] final judgment or decree rendered upon the merits, without fraud or
collusion, by a court of competent jurisdiction * * * is a complete bar to any subsequent
action on the same claim or cause of action between the parties or those in privity with
them.' " Id., quoting Norwood v. McDonald, 142 Ohio St. 299 (1943), paragraph one of
the syllabus. Such " 'an existing final judgment or decree * * * is conclusive as to all claims
which were or might have been litigated in a first lawsuit.' " (Emphasis sic.) Natl.
Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62 (1990), quoting Rogers v.
Whitehall, 25 Ohio St.3d 67, 69 (1986). Notably, the doctrine applies as between federal
court and state court holdings, so that the judgment or decree of a federal court
possessing competent jurisdiction will be "final as to the subject matter thereby
determined" for state court purposes as well. Rogers at 69.
       {¶ 24} Here, the parties agree that the only prior litigation relevant to a res judicata
inquiry is Lawsuit II, in which the United States District Court dismissed Dr. Saha's
federal law claims against the Institute for failure to state a claim and dismissed his state
law claims without prejudice after declining to exercise its pendent jurisdiction over the
claims.
       {¶ 25} On appeal, Dr. Saha contends that the District Court's resolution of Lawsuit
II does not bar his present action because his "state law claims have never been litigated
on the merits." (Appellant's brief, at 8.) Indeed, it is axiomatic that a dismissal "without
prejudice" is a dismissal "otherwise than on the merits." (Emphasis sic.) Troyer v. Janis,
132 Ohio St.3d 229, 2012-Ohio-2406, ¶ 14. Because res judicata requires a "final
judgment or decree rendered upon the merits," it follows that a dismissal without
prejudice "means that the dismissal has no res judicata effect." Rak-Ree Ents., Inc. v.
Timmons, 10th Dist. No. 10AP-476, 2011-Ohio-1090, ¶16; Brubaker v. Ross, 10th Dist.
No. 01AP-1431, 2002-Ohio-4396, ¶ 13. See also Goudlock v. Voorhies, 119 Ohio St.3d
398, 2008-Ohio-4787, ¶ 10 (holding "[a] dismissal without prejudice constitutes an
adjudication other than on the merits and prevents the dismissal from having res
judicata effect").
No. 12AP-590                                                                               11


       {¶ 26} Nevertheless, the Institute reiterates on appeal its argument, accepted as
"persuasive" by the trial court, that "there has been a prior, valid judgment on the merits
when the District Court dismissed Appellant's federal claims [for failure to state a claim]
in Lawsuit II." (Appellee's brief, at 18.) The Institute contends that Dr. Saha's argument
differentiating between the federal court's treatment of his federal law claims and his state
law claims "draws a distinction not recognized by the courts," as the " 'doctrine of res
judicata does not distinguish between federal claims and state claims.' " (Appellee's brief,
at 19, quoting Lambert v. Miamisburg, 2d Dist. No. 12031 (Mar. 29, 1991).
       {¶ 27} The Institute cites to several cases which it suggests support its position.
However, in every case cited by the Institute for the principle that "final judgments on
only federal claims can still bar subsequent state law claims," the federal court was asked
to consider only federal law claims, and the Ohio appellate court, in reviewing the
plaintiff's later state action, concluded the plaintiff could have, and did not, assert their
subsequent state law claims in the prior federal action. (Emphasis sic; Appellee's brief, at
19.) See Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 13 (holding, where
plaintiff had asserted only a federal law claim before the federal court, her subsequent
state action asserting state law claims was barred by res judicata because those claims
could have been raised in her federal action; additionally finding the collateral estoppel
branch of res judicata applied to bar some of the state action claims because they involved
issuesrelated to whether "the state acted improperly when it terminated appellant's
employment"which the federal court resolved pursuant to plaintiff's federal claim for
discrimination in violation of federal law); Lambert (finding, although "the claims
brought in Federal Court were purely federal in nature whereas those brought in State
Court had no basis in federal law at all," plaintiffs could have brought all their claims in
the federal court; "[t]hus, by not doing so, they were estopped from doing so later in State
Court"); Marrie v. Internatl. Local 717, 11th Dist. No.2001-T-0046, 2002-Ohio-3148,
¶ 34 (observing, "[a]lthough appellant's former lawsuit was based on a violation of the
ADA while the current lawsuit is based on a violation of R.C. Chapter 4112, these
discrimination claims clearly arise out of the same facts and could have been litigated in
the 1998 federal lawsuit pursuant to that court's supplemental jurisdiction"); Vaughn v.
No. 12AP-590                                                                               12


Looney, 9th Dist. No. 12985 (July 22, 1987) (holding, "[b]ecause [plaintiff] could have
raised his state causes of action in the prior federal proceeding" but failed to do so, "res
judicata bars his raising them in a subsequent proceeding"). (Emphasis sic.)
       {¶ 28} By contrast, Dr. Saha did raise state law claims before the District Court,
and the court explicitly declined to exercise jurisdiction over those claims. The Ninth
District Court of Appeals recognized the significance of this distinction in its cases,
Deryck v. Akron City School Dist., 9th Dist. No. 13442 (Aug. 17, 1988); Plazzo v.
Nationwide Mut. Ins. Co., 9th Dist. No. 17022 (Feb. 14, 1996). In Deryck, the Ninth
District found res judicata did not bar a plaintiff's subsequent state action where he had
attempted to litigate his state law claim in his federal action but the federal court
refused to exercise pendent jurisdiction over the claim. Id. The appellate court
concluded, "[u]nder these circumstances, it would work an injustice on the [plaintiff] to
bar the state claim in state court." Id. In Plazzo, the Ninth District distinguished the
case then before it from Deryck, noting "[i]n Deryck, the plaintiff attempted to litigate
his state law claim in his federal action," while the Plazzo plaintiff, "could have
attempted to raise his state law claim in his previous federal lawsuit but failed to do so."
Plazzo. Accordingly, the Ninth District held that res judicata applied to bar the plaintiff's
subsequent state action in Plazzo where it had not applied in Deryck. Id.
       {¶ 29} In Johnson v. Cleveland City School District, 8th Dist. No. 94214, 2011-
Ohio-2778, ¶ 39, the Eighth District Court of Appeals likewise found "there was no final
judgment on the merits in the federal action as to the state claims" where a prior federal
court determination had resolved the plaintiff's federal claims on the merits, but declined
to exercise pendent jurisdiction over her remaining state claims. As in the matter sub
judice, the defendant contended that the plaintiff "was barred from re-litigating her
claims in state court because of the federal court findings"; the appellate court, however,
"disagree[d]." Id. at 35. Holding that a "state action is barred in subsequent suits"
"[u]nless it is clear that the federal court would have declined as a matter of its discretion
to exercise jurisdiction over the state claim," the court found the plaintiff's "claims were
not barred by res judicata under the claim preclusion portion of the doctrine" because
she "did assert her state claims in the federal action, and the federal court did
specifically decline to exercise jurisdiction over them." Id. at ¶ 42-43, quoting Lakewood,
No. 12AP-590                                                                                13


Ohio Congregation of Jehovah's Witnesses, Inc. v. Lakewood, 20 Ohio App.3d 338, 340
(1984), citing Restatement of Law 2d, Judgments, Illustration 1, Section 87 a, at 316
(1982).
       {¶ 30} This court recognized the "well-established authority finding that a
dismissal premised on a decision not to exercise supplemental jurisdiction does not
constitute a final judgment on the merits so as to invoke the principles of res judicata" in
Bush v. Dictaphone Corp., 10th Dist. No. 98AP-585 (Mar. 30, 1999). See also Painesville,
Ohio v. First Montauk Fin. Corp., 178 F.R.D. 180, 185 (N.D.Ohio 1998) (holding "Res
judicata does not apply if a court dismissed the first suit for want of jurisdiction, or was
disposed of on any ground that did not go to the merits of action."), citing Hughes v. U.S.,
71 U.S. 232 (1866). Indeed, the Bush court even applied this principle to a plaintiff's
subsequent state law claims where the federal court denied the motion for leave to amend
setting forth the subject state law claims, but used language indicating its denial
constituted "a dismissal on jurisdictional grounds." Id. Notably, in Bush, as in Deryck
and Johnson, the federal court rendered a judgment on the merits as to the plaintiff's
federal law claims.
       {¶ 31} In the end, the District Court's judgment in Lawsuit II expressly dismissing
Dr. Saha's state law claims without prejudice, after declining to exercise pendent
jurisdiction over them, does not constitute a prior valid judgment on the merits. Nor does
the court's holding dismissing Dr. Saha's federal law claims for failure to state a claim
constitute a prior valid judgment on the merits as to his state law claims where the court
addressed his state law claims separately. As a result, res judicata does not apply to bar
Dr. Saha's state law claims that the District Court dismissed without prejudice.
       {¶ 32} Nevertheless,    the   Institute   contends,   the   matter   sub    judice   "is
distinguishable from a scenario where a plaintiff seeks to bring the same state law claims
that were dismissed without prejudice by the federal court," because Dr. Saha did not
include the present breach of contract claims with his other state law claims in Lawsuit II.
(Emphasis sic; Appellee's brief, at 23-24.) The Institute asserts this court cannot
"presume that, if [Dr. Saha] had presented a state law breach of contract claim in the
federal lawsuit, the District Court would have inevitably dismissed it without prejudice."
(Emphasis sic; Appellee's brief, at 25.)
No. 12AP-590                                                                                 14


       {¶ 33} However, in declining to exercise its pendent jurisdiction over Dr. Saha's
state law claims, the District Court explained that, "[h]aving dismissed his federal claims,
the Court presumptively should not address the state law claims." Saha, case No. 2:05-cv-
190, at 11. The United States District Court cited the " 'strong presumption' in favor of
dismissing any remaining state claims" when a federal court "has properly dismissed a
plaintiff's federal claims" and the plaintiff cannot establish " 'an alternate basis for federal
jurisdiction.' " Id., quoting Jackson at 8. Since "[Dr.] Saha ha[d] failed to suggest any
justification or alternative basis for exercising jurisdiction over his state law claims" once
his federal claims failed, "the Court in its discretion decline[d] to exercise its
supplemental jurisdiction over Saha's remaining state law claims * * * and dismisse[d]
said claims without prejudice." Id. at 11.
       {¶ 34} The presumption invoked by the District Court in the matter sub judice is
rooted in the idea, expressed by the U.S. Supreme Court in United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726-27 (1966), that "[n]eedless decisions of state law should be
avoided both as a matter of comity and to promote justice between the parties, by
procuring for them a surer-footed reading of applicable law." See also Deryck (noting
the federal court "is instructed to avoid deciding the state claims if it is unnecessary"),
citing United Mine Workers. The United Mine Workers' court further held that,
"[c]ertainly, if the federal claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state claims should be dismissed as well." Id.
       {¶ 35} The United States District Court's resolution of Dr. Saha's state law claims
against the Institute focused exclusively on this presumption against exercising its
pendent jurisdiction over "any" state law claim where all federal claims had been
resolved. Saha, case No. 2:05-cv-190, at 11, quoting Jackson. Nothing in the United
States District Court's opinion indicates its decision was based on, or in any was
influenced by, the nature of the particular state law claims asserted; notably, in dismissing
without prejudice Dr. Saha's state law claims against the Institute, the District Court does
not even name the individual causes of action, instead referring generally to "Saha's
remaining state law claims." Id. As discussed, Ohio appellate courts have held that the
res judicata doctrine bars subsequent state law claims where the claims might have been
litigated in a first lawsuit, but it does not bar subsequent state law claims where the
No. 12AP-590                                                                             15


federal court clearly would have declined to exercise jurisdiction over those claims. Natl.
Amusements at 62; Johnson, 2011-Ohio-2778, at ¶ 42. Here, by expressly stating that it
declined jurisdiction based on the jurisprudence counseling against federal courts
presiding over state law claims after all federal claims had been resolved, the District
Court's language clearly indicates that the subject breach of contract claims would fall
into the latter category. Compare Watson v. Parma Community Gen. Hosp., 8th Dist.
No. 86362, 2006-Ohio-712, ¶ 19 (holding there was "no way of knowing whether the
federal court would have exercised its pendent jurisdiction" over subsequent state law
claims where "the federal court did exercise pendent jurisdiction" over the sole state law
claim brought before it).
       {¶ 36} In sum, because the District Court dismissed Dr. Saha's state law claims
without prejudice, there has not been a judgment on the merits as to those claims.
Furthermore, because the District Court dismissed Dr. Saha's state law claims without
prejudice based on the aforementioned desire to avoid an inappropriate exercise of
pendent jurisdiction, Dr. Saha's breach of contract claims do not represent claims which
he might have "actually litigated" in his federal case. Accordingly, res judicata does not
operate to bar the present action, and the trial court erred in granting summary judgment
in favor of the Institute. Dr. Saha's sole assignment of error is sustained.
VI. Disposition
       {¶ 37} Having sustained Dr. Saha's single assignment of error and overruled the
Institute's cross-assignment of error, we reverse the decision of the Franklin County Court
of Common Pleas and remand for further proceedings consistent with this decision.
                                                                          Judgment reversed
                                                                        and cause remanded.

                             TYACK and BROWN, JJ., concur.

              McCORMAC, J., retired, formerly of the Tenth Appellate
              District, assigned to active duty under authority of the Ohio
              Constitution, Article IV, Section 6(C).
