                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0598n.06

                                          No. 09-3573

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


GENERAL ELECTRIC MEDICAL                        )
SYSTEMS EUROPE,                                 )
                                                                             FILED
                                                )
                                                                          Sep 08, 2010
                                                                    LEONARD GREEN, Clerk
       Plaintiff-Appellee,                      )
                                                )
v.                                              )
                                                )
PROMETHEUS HEALTH,                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
       Defendant-Appellant,                     )    NORTHERN DISTRICT OF OHIO
                                                )
and                                             )
                                                )
MUNIR UWAYDAH,                                  )
                                                )
       Defendant.                               )




       Before: CLAY, ROGERS, and COOK, Circuit Judges.


       COOK, Circuit Judge. General Electric Medical Systems Europe (GEMS) sued Prometheus

Health Imaging, Dr. Munir Uwaydah (Prometheus’s president), and Dr. Ernest Camponovo

(Prometheus’s CEO) after defendants failed to pay GEMS for a full-body CT scanner.1 Due to

procedural complications stemming from multiple bankruptcy filings, the cases proceeded separately

against each defendant. We now consider Prometheus’s appeal of two of the district court’s

judgments: (1) the denial of Prometheus’s motion to dismiss grounded on forum selection; and (2)

       1
           GEMS dismissed its claims against Dr. Camponovo on December 1, 2004.
No. 09-3573
GEMS v. Prometheus Health, et al.


the summary judgment granted in GEMS’s favor on res judicata grounds. For the reasons that

follow, we affirm.


                                                 I.


       Prometheus was formed to provide preventative and diagnostic full-body CT scanning and

related services. Prometheus entered into an agreement with GEMS for the purchase of a GE CT

scanner to be used at a facility located in Riyadh, Saudi Arabia, using funds from a Riyadh business,

known as Al-Banader International Group (“Al-Banader”). That business owned the facility in

which the scanning equipment would be installed.


       To finance the scanner’s purchase, Al-Banader provided Prometheus with a letter of credit

of at least $1,000,000 through the National Commercial Bank of Riyadh. The letter of credit listed

Al-Banader as both the applicant and the entity destined to receive the scanner, and named

Prometheus as the beneficiary. GEMS claimed that Prometheus evidenced an intention to pay

GEMS using funds released under the letter of credit.


       Prometheus made the first payment for the scanner as expected, but because difficulties

obtaining legal documentation for customs delayed shipment, Prometheus requested that GEMS ship

the scanner without receiving the contracted-for 50% payment due upon shipping. Instead,

Prometheus, through Dr. Uwaydah, allegedly represented that it would pay for the scanner in full

upon its receipt in Riyadh. But when Al-Banader notified GEMS that it accepted delivery of the


                                                -2-
No. 09-3573
GEMS v. Prometheus Health, et al.


scanner and authorized the release of the funds in the letter of credit to cover the balance owed,

Prometheus refused to pay. To justify its refusal, Prometheus alleged that GEMS materially

breached the contract because the scanner’s delayed arrival in Riyadh fell short of the contract

specifications.


       GEMS sued Prometheus, Dr. Uwaydah, and Dr. Camponovo to recover funds released under

the letter of credit. Prometheus moved to dismiss GEMS’s complaint under Federal Rule of Civil

Procedure 12(b)(3), arguing that forum non conveniens and the forum-selection clause in the parties’

Standard Terms and Conditions agreement made France the proper forum. The district court

summarily denied the motion via a “Minutes of Proceeding/Order,” stating only that “[t]he Court

finds no controlling forum selection clause and finds that all factors counsel against transfer or

dismissal.” Mins. Order, Dist. Ct. Doc. (“Doc.”) 35, at 2. Dr. Uwaydah answered the complaint by

denying knowledge of virtually all GEMS’s factual assertions.


       After these proceedings commenced below, both Dr. Uwaydah and Prometheus filed for

bankruptcy, necessitating stays that, by virtue of the separate bankruptcy cases, prompted the district

court to adjudicate GEMS’s claims against each defendant separately. Because of continuing

discovery violations, the court eventually sanctioned Dr. Uwaydah by “prohibit[ing him] from

introducing any testimony contrary to the facts set forth by GEMS.” Order Granting GEMS’s Mot.

for Sanctions Against Dr. Uwaydah, Doc. 84, at 8 (emphasis omitted). On this limited record, the

court granted GEMS summary judgment against the doctor, finding that Prometheus breached its


                                                 -3-
No. 09-3573
GEMS v. Prometheus Health, et al.


contract and holding Dr. Uwaydah liable for the breach as Prometheus’s alter ego, as well as for

conversion and fraud. Based on its summary judgment decision, the district court entered final

judgment against Dr. Uwaydah. Dr. Uwaydah appealed, and this court affirmed without reaching

the sanctions issue. Because Prometheus attempted to cure its defective discovery responses, the

district court declined to level any sanctions against it.


        When GEMS later sought summary judgment against Prometheus itself, GEMS argued that

res judicata prevented Prometheus from relitigating the court’s liability finding in connection with

the sanctions levied against Dr. Uwaydah as a principal of Prometheus. The district court agreed and

used its previous order not only as the judgment that barred it from revisiting liability, but also to

find Dr. Uwaydah and Prometheus in privity, a finding the district court viewed as necessary to

establish the preclusive effect of the judgment in the first place. Prometheus timely appealed the

district court’s grant of summary judgment, arguing that the court erred when it (1) refused to

dismiss the complaint based on the contract’s binding forum-selection clause and (2) misapplied the

doctrine of res judicata in granting preclusive effect to the judgment against Dr. Uwaydah.


                                                   II.


A.      Forum Selection


        Prometheus first argues that the district court erred when it read the contract as not including

a binding forum-selection clause. Although Federal Rule of Civil Procedure 52(a) does not require


                                                 -4-
No. 09-3573
GEMS v. Prometheus Health, et al.


the district court to provide findings of fact or conclusions of law when ruling on a motion to

dismiss, Robin Prods. Co. v. Tomecek, 465 F.2d 1193, 1196 (6th Cir. 1972), their absence in this

case (by virtue of the district court’s cursory Minutes Order resolving this issue) leaves us with little

guidance. Insofar as the district court’s resolution reflects factual findings, we review them for clear

error. Dixon v. Ashcroft, 392 F.3d 212, 216–17 (6th Cir. 2004). But to the extent the court answered

a question of law by opining on the enforceability of a forum-selection clause, we review its decision

de novo. Shell v. R.W. Sturge, Ltd., 55 F.3d 1227, 1229 (6th Cir. 1995).


        To reject Prometheus’s forum-selection clause argument, the district court found that the

parties failed to form a binding agreement regarding the proper forum for litigating contract disputes.

This conclusion encompasses both factual and legal components. Evidence before the court

demonstrated that the parties never entered into a contract containing the Standard Terms and

Conditions, which included the forum-selection clause on which Prometheus so heavily relies.

Prometheus does not contest that its agent twice expressly refused in writing to execute and return

the Standard Terms and Conditions. Reviewing this finding for clear error, we would only reverse

if Prometheus produced a signed copy of the agreement, which it has not, and, according to

undisputed facts, cannot. Absent evidence the parties agreed to the Standard Terms and Conditions,

the district court did not err when it rejected Prometheus’s forum-selection-clause argument as a

matter of law.




                                                  -5-
No. 09-3573
GEMS v. Prometheus Health, et al.


B.      Preclusive Effect


        The district court later granted GEMS summary judgment against Prometheus on res judicata

grounds, a decision we review de novo. Vill. of Oakwood v. State Bank & Trust Co., 539 F.3d 373,

377 (6th Cir. 2008). We will affirm if the evidence, viewed in the light most favorable to

Prometheus, demonstrates that no genuine issue exists as to any material fact and that the plaintiff

is entitled to judgment as a matter of law. Id.


        Res judicata, i.e., the preclusive effect of a judgment, encompasses two distinct doctrines:

claim preclusion and issue preclusion. Taylor v. Sturgell, 553 U.S. 880, —, 128 S. Ct. 2161, 2171

(2008). Claim preclusion “forecloses ‘successive litigation of the very same claim, whether or not

relitigation of the claim raises the same issues as the earlier suit.’” Id. (quoting New Hampshire v.

Maine, 532 U.S. 742, 748 (2001)). In contrast, issue preclusion “bars ‘successive litigation of an

issue of fact or law actually litigated and resolved in a valid court determination essential to the prior

judgment,’ even if the issue recurs in the context of a different claim.” Id. (quoting New Hampshire,

532 U.S. at 748–49).


        The parties dispute which res judicata doctrine—claim preclusion or issue

preclusion—applies here. Despite the district court citing the requirements under Ohio law for claim

preclusion, the court’s analysis confirms the appropriateness of the issue-preclusion doctrine here.

The district court granted GEMS summary judgment on its claims against Prometheus because the



                                                  -6-
No. 09-3573
GEMS v. Prometheus Health, et al.


court had already determined the issue of Prometheus’s liability when granting GEMS summary

judgment on its claims against Dr. Uwaydah.


       Issue preclusion bars relitigation of an issue when: (1) the identical issue was raised and

actually litigated in a prior proceeding; (2) the determination of the issue was necessary to the

outcome of the prior proceeding; (3) the prior proceeding resulted in a final judgment on the merits;

and (4) the party against whom issue preclusion is sought had a full and fair opportunity to litigate

the issue in the prior proceeding. Aircraft Braking Sys. Corp. v. Local 856, Int’l Union, United

Auto., Aerospace and Agric. Implement Workers, UAW, 97 F.3d 155, 161 (6th Cir. 1996)).2


       All four elements of issue preclusion are satisfied here.               First, the identical

issue—Prometheus’s liability—was raised and actually litigated, not just in a prior proceeding, but

in a prior proceeding in the same suit. When GEMS moved for summary judgment against Dr.

Uwaydah, the district court determined Prometheus’s liability and held Dr. Uwaydah liable as

Prometheus’s alter ego. Relying on Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918

F.2d 658 (6th Cir. 1990), Prometheus contends its liability was not “actually litigated” because the

district court prohibited Dr. Uwaydah from contesting GEMS’s version of the facts when it moved

for summary judgment against Dr. Uwaydah, as a sanction for discovery violations. Gargallo is


       2
         The parties rely on Ohio res judicata law. Ohio law does not apply here, however, because
the issue—Prometheus’s liability—was previously determined by a federal court, not a state court.
See Aircraft Braking Sys. Corp., 97 F.3d at 161–62 (applying federal issue-preclusion law to
determine whether to give preclusive effect to a prior federal judgment). Cf. Macy v. Hopkins
County Sch. Bd. of Educ., 484 F.3d 357, 367–68 (6th Cir. 2007) (applying Kentucky issue-preclusion
law to determine whether to give preclusive effect to a prior state judgment).
                                                 -7-
No. 09-3573
GEMS v. Prometheus Health, et al.


inapplicable for two reasons: (1) it applied Ohio, not federal, preclusion law; and (2) it involved

claim preclusion, not issue preclusion. See id. at 663 n.6 (“[B]ecause Mr. Gargallo’s counterclaim

was dismissed as a discovery sanction . . . , no substantive factual issues were adjudicated in the

Ohio court, [and] Ohio’s issue preclusion principles are not relevant to this case.”). As a result,

Gargallo says nothing about when an issue is “actually litigated” under federal issue-preclusion law.


       In contrast, as GEMS notes, “[g]enerally, disposition of a case on summary judgment

grounds meets the actually litigated requirement of the issue preclusion test.” Nat’l Acceptance Co.

of Am. v. Bathalter, No. 91-3128, 1991 WL 263474, at *3 (6th Cir. Dec. 9, 1991) (citing Exhibitors

Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 421 F.2d 1313, 1319 (5th Cir. 1970)); accord 18

James Wm. Moore, Moore’s Federal Practice § 132.03[2][j], at 132-89 (3d ed. 2010) (“Issue

preclusion generally applies when the prior determination is based on a motion for summary

judgment.”). Here, the district court determined Prometheus’s liability at summary judgment, and

a panel of this Circuit affirmed the district court’s decision based on the entire record before the

district court at summary judgment rather than solely on the evidence GEMS submitted at summary

judgment. See Gen. Elec. Med. Sys. Europe, Inc. v. Prometheus Health Imaging, Inc., 205 F. App’x

418, 420 n.1 (6th Cir. 2006) (noting “our decision rests on the summary judgment record before the

district court which was submitted prior to imposition of the sanctions”). GEMS and Dr. Uwaydah

therefore actually litigated the issue of Prometheus’s liability in the first summary judgment motion.




                                                -8-
No. 09-3573
GEMS v. Prometheus Health, et al.


          Second, the determination of Prometheus’s liability was necessary to the outcome of the first

summary judgment motion. The district court could not have held Dr. Uwaydah liable, as

Prometheus’s alter ego, on the breach of contract, conversion, and fraud claims unless the district

court first determined that Prometheus was liable for breach of contract, conversion, and fraud. This

it did.


          Third, the district court entered a final judgment on the merits against Dr. Uwaydah based

on its summary judgment decision in which it found Prometheus liable.


          Finally, and importantly, Prometheus had a full and fair opportunity to litigate its liability

during resolution of the first summary judgment motion against Dr. Uwaydah. Although the district

court had stayed the claims against Prometheus, nothing barred Prometheus from opposing GEMS’s

summary judgment motion against Dr. Uwaydah. Not only was Prometheus a party to the litigation,

but it also knew GEMS was seeking summary judgment against Dr. Uwaydah, and it knew that

motion would result in a determination of its own liability. Prometheus simply failed to anticipate

the issue-preclusive effect of the first summary judgment motion.


          Prometheus’s briefing decries the unfairness of this result, noting courts may reject issue-

preclusion tenets “when their application would . . . result in manifest injustice.’” Marlene Indus.

Corp. v. NLRB, 712 F.2d 1011, 1017 (6th Cir. 1983) (quoting Bronson v. Bd. of Educ., 525 F.2d 344,

349 (6th Cir. 1975)). But no injustice results here because Prometheus had a fair opportunity to

litigate its liability when GEMS moved for summary judgment against Dr. Uwaydah, Prometheus’s

                                                  -9-
No. 09-3573
GEMS v. Prometheus Health, et al.


alter ego. See id. (finding no manifest injustice where litigant “had a full and fair opportunity to

litigate the issue”). We therefore find the manifest-injustice exception inapplicable and uphold the

district court’s judgment on issue-preclusion grounds.


                                                III.


       For these reasons, we affirm.




                                               - 10 -
