                        NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   File Name: 12a0957n.06
                                                                                                FILED
                                             No. 10-4194
                                                                                          Aug 29, 2012
                             UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT

In re: National Century Financial Enterprises,
       Inc., Investment Litigation
______________________________________

AMEDISYS, INC., et al.,                                       ON APPEAL FROM THE
                                                              UNITED STATES DISTRICT
          Plaintiff-Appellant,                                COURT FOR THE SOUTHERN
                                                              DISTRICT OF OHIO
and

CITY OF CHANDLER ARIZONA, et al.,

          Plaintiffs,

v.

SUZANNE K. HOSCH, et al.,

          Defendants,

and

JP MORGAN CHASE BANK, et al.,

          Defendants-Appellees.

                                                         /

Before:           MARTIN and MCKEAGUE, Circuit Judges; CALDWELL, District Judge*

          BOYCE F. MARTIN, JR., Circuit Judge. Amedisys, Inc., filed suit against JPMorgan Chase

Bank, N.A. in Ohio federal district court (the first suit), alleging various contract, fiduciary duty, and



          *
         Judge Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
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fraud claims regarding JPMorgan’s role in a dispute about receivables and funds that Amedisys

claimed it owned. These assets are potentially the property of the bankruptcy estate of National

Century Financial Enterprises. After National Century filed for bankruptcy (the bankruptcy case),

the first suit was referred, on a motion by Amedisys, to the Ohio bankruptcy court. Amedisys

separately filed a subsequent suit (the second suit) in Louisiana state court against JPMorgan and

certain of JPMorgan’s executives alleging similar claims under Louisiana law; this second suit was

removed, on a motion by JP Morgan, to the United States District Court for the Middle District of

Louisiana. The second suit was then stayed pending proceedings in the bankruptcy case and

transferred to the Ohio district court. The district court granted judgment in favor of JPMorgan on

the Ohio claims raised in the first suit. This Court affirmed in part and reversed in part this judgment

against Amedisys.

        JPMorgan moved for summary judgment on the Louisiana claims raised in the second suit

on the grounds that they were barred by res judicata due to the resolution of the first suit. The district

court granted JPMorgan’s summary judgment motion in the second suit, and Amedisys appeals. For

the reasons that follow, we AFFIRM the judgment of the district court.

                                                    I.

        This is a case about claim preclusion. JPMorgan seeks to use this Court’s decision in the first

suit to preclude claims made by Amedisys in the subsequent second suit brought under Louisiana

state law. The underlying facts of the first suit were recounted by this Court in its prior decision in

that case, In re Nat’l Century Fin. Enters., Inc., 377 F. App’x 531, 533-35 (6th Cir. 2010) (citations

and internal footnotes omitted):
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              [National Century] supplied accounts receivable financing to healthcare
       providers, including Amedisys. Under a series of identical Sale and Subservicing
       Agreements . . . with Amedisys, [National Century] was given the right to purchase
       insurance payments owed to Amedisys for services already rendered, termed
       “Eligible Receivables.” The arrangement gave Amedisys, and companies like it,
       access to immediate funding based on anticipated future collections. [National
       Century] affiliate NPF VI financed the purchases of the receivables by raising money
       from investors in exchange for promissory notes secured by the receivables. These
       notes were issued in accordance with a Master Indenture Agreement with JPMorgan.
       JPMorgan established accounts to handle the collection and distribution of funds
       payable to the healthcare providers that contracted with NPF VI.

                Amedisys first entered into a Sale Agreement with [National Century] in
       December of 1998. Under the terms of the Sale Agreement, Amedisys sent a weekly
       list of all its receivables to [National Premier Financial Services, Inc]. [National
       Premier] then determined which receivables were eligible for purchase, and
       calculated the “Purchase Price,” based on the net value of the receivables less fees,
       program costs, and other adjustments. Payment of the Purchase Price was made from
       the Purchase Account through [National Premier]’s instructions to JPMorgan.
       According to the Sale Agreement, “[f]ollowing payment of the Purchase Price on any
       Purchase Date, ownership of each Purchased Receivable will be vested in the
       Purchaser.” The [sale] agreement required that Amedisys set up lockbox accounts
       and instruct payors of receivables sold to NPF VI to deposit their payments into the
       appropriate account. The lockbox accounts were swept daily into the Collection
       Account.

              While [National Century] was not obligated to purchase all eligible
       receivables submitted, Amedisys was required to notify commercial payors that all
       payments should be sent to the lockbox account. The notice sent to payors stated that
       Amedisys would “sell to NPF from time to time certain of our Receivables of which
       you are the obligor” and that payment into the lockbox account “will operate to
       discharge your obligation . . . whether or not ownership has been transferred to NPF.”
       Because funds other than payments on purchased receivables could be swept into the
       Collection Account, the Sale Agreement recognized that “certain amounts deposited
       in the Collection Account may relate to Receivables other than Purchased
       Receivables and that such amounts continue to be owned by the Seller.”

               While [National Century] was not required to purchase every eligible
       receivable, its practice was to do so. Through April 2002, [National Century]
       routinely purchased all of Amedisys’s eligible receivables. In April 2002, Amedisys
       and [National Century] altered the arrangement established by the Sale Agreement,
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       allowing Amedisys to request a specific amount of funding each week, rather than
       receive full payment for its receivables. The record does not reveal the precise
       understanding reached between the parties. James Dierker, an [National Century]
       employee who was Amedisys’s primary contact at the company, testified that
       Amedisys’s [Chief Financial Officer] at the time, John Joffrion, first discussed
       decoupling the value of Eligible Receivables from the amount sent to Amedisys in
       2000. Dierker testified that he passed the request along to his superiors and that
       eventually [National Century]’s funding department and Amedisys “put together the
       mechanical details.” Dierker noted that, at the time, Amedisys owed [National
       Century] a significant outstanding balance, and neither he nor Joffrion contemplated
       Amedisys amassing a net-credit position. After the change was instituted in April
       2002, Amedisys occasionally requested more money than supported by their
       receivables, but more often took less, reducing their balance owing to around $1.6
       million at the end of September 2002.

               For the first three weeks in October 2002, Amedisys made no requests for
       funding, which resulted in its accruing a substantial credit balance. Unbeknownst to
       Amedisys, [National Century] was by then on the brink of financial collapse. On
       October 22, 2002, Amedisys requested a $2.8 million payment. The funding was not
       paid immediately and was eventually paid in installments over two days. On October
       29, 2002, Amedisys made another funding request, which yielded only $38,000.00.
       [National Century] and Amedisys then entered into negotiations. A “buyout
       reconciliation” was prepared by [National Century]’s accounting department, which
       showed that collections from Amedisys’s lockbox accounts exceeded payments to
       Amedisys by roughly $7.3 million. [National Century] and Amedisys initially agreed
       to a proposal to offset $6 million Amedisys owed another [National Century] affiliate
       on a separate capital note . . . against the $7.3 million that the parties agreed NPF VI
       owed to Amedisys, and to have JPMorgan send Amedisys the remaining $1.3
       million. However, JPMorgan, which was not a party to the [c]apital [n]ote
       agreement, did not honor the transfer request. Amedisys filed a complaint seeking
       injunctive relief forcing JPMorgan to authorize payment of the entire $7.3 million on
       November 8, 2002. [National Century] filed for relief under Chapter 11 of the
       United States Bankruptcy Code shortly thereafter, and the district court referred
       Amedisys’s lawsuit to the bankruptcy court.

               Amedisys’s Second Amended Complaint asserted thirteen counts: Count One
       sought a declaratory judgment clarifying the ownership of the $7.3 million and
       confirming that the Sale Agreement and Master Indenture created one contractual
       relationship between [National Century], Amedisys and JPMorgan; Count Two
       alleged breach of fiduciary trust on the part of JPMorgan for failure to perform its
       duties as an escrow agent; Counts Three through Five sought imposition of a trust in
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Amedisys, Inc., et al. v. Suzanne Hosch, et al.
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       favor of Amedisys on various trust theories; Count Six sought turnover of the
       disputed funds; Counts Seven through Ten alleged breach of the Sale Agreement,
       breach of fiduciary duty, and fraud against [National Century], and sought specific
       performance mandating the return of the disputed funds; Count Eleven requested an
       order for an accounting; Count Twelve sought removal of NPFS as Servicer of the
       Sale Agreement; and Count Thirteen alleged conversion by [National Century].

       On February 21, 2003, Amedisys filed a separate complaint against JPMorgan in Louisiana

state court, which opened the second suit. The claims in the second suit are similar to those in the

first suit. This second suit was removed, on a motion by JP Morgan, to the United States District

Court for the Middle District of Louisiana. The second suit was then stayed pending proceedings

in the bankruptcy case and transferred to the Ohio district court. Meanwhile, the first case against

National Century and JPMorgan, which had been referred to the bankruptcy court handling the

bankruptcy case, moved forward, id. at 535:

               [National Century] and JPMorgan filed motions for summary judgment,
       which the bankruptcy court granted on all counts, except Count Seven. The parties
       entered into a stipulated agreement dismissing Count Seven, and Amedisys appealed
       to the district court. The district court affirmed the decision of the bankruptcy court.
       Amedisys timely appealed the grant of summary judgment as to Counts One through
       Six and Thirteen.

       This Court then affirmed the district court’s order adopting the bankruptcy court’s grant of

summary judgment in the first case against Amedisys on Counts Two and Six; affirmed for

JPMorgan on Count One; reversed summary judgment on Counts Three, Four, Five, and Thirteen;

and reversed in part on Count One. After the second suit was transferred to an Ohio district court,

JPMorgan moved for summary judgment in this case, arguing that the Louisiana state law claims in

the second suit were precluded by this Court’s decision in the first suit. The district court granted

JPMorgan’s motion for summary judgment on the second suit. Amedisys appeals, arguing that the
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Ohio district court erred in finding the Louisiana state law claims were precluded and in finding that

JPMorgan did not acquiesce to Amedisys’s litigation of similar claims in two fora.

                                                  II.

       This Court reviews “a district court’s grant of summary judgment de novo.” Binay v.

Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (citation omitted). Summary judgment is proper if the

materials in the record “show[] that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In deciding a motion for

summary judgment, the court must view the factual evidence and draw all reasonable inferences in

favor of the nonmoving party.” Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003)

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

                                                  III.

       Claim preclusion “refers to the effect of a judgment in foreclosing litigation of a matter that

never has been litigated, because of a determination that it should have been advanced in an earlier

suit.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). “[A] claim will be

barred under the doctrine of claim preclusion if the following four elements are present: (1) a final

decision on the merits; (2) a subsequent action between the same parties or their privies; (3) an issue

in a subsequent action which should have been litigated in the prior action; and (4) an identity of the

causes of action.” Wilkins v. Jakeway, 183 F.3d 528, 532 (6th Cir. 1999). Amedisys argues that the

district court erred in deciding the second suit was precluded by the result of the first suit because

it erroneously found that the first and third prongs of the claim preclusion test were met.
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1. First prong: Final decision on the merits

        As discussed above, this Court previously reversed the trial court’s grant of summary

judgment against Amedisys in the first suit as to Counts Three, Four, Five, and Thirteen, and in part

as to Count One. Each claim in the second suit is assessed below with respect to the first prong’s

requirement that there be a final decision on the merits of the claim for claim preclusion to apply.

        The defendants first argue claim preclusion as to ownership of the $7.3 million and the nature

of any contractual relationship among National Century, Amedisys, and JPMorgan, claims raised in

Count One in the first suit. As to the claims raised in Count One, there exists a final decision on the

merits because this Court previously affirmed summary judgment for JPMorgan on the claims raised

under Count One in the first suit. In Count One, Amedisys sought a declaratory judgment that “the

Sale Agreement and Master Indenture form a single contractual relationship between [National

Century], Amedisys and JPMorgan or, alternatively, that Amedisys is a third-party beneficiary of the

Master Indenture, and that JPMorgan owed it a fiduciary duty.” In re Nat’l Century Fin. Enters.,

Inc., 377 F. App’x at 539. We held that “JPMorgan had no contact at all [with Amedisys] prior to

Amedisys failing to receive its requested funding in November 2002 [and that there is] no evidence

that the parties understood or intended the two separate contracts to constitute one tri-party contract.”

Id. at 540. Further, this Court held that “Amedisys cannot be an intended beneficiary under the

Master Indenture, and JPMorgan owes it no fiduciary duty.” Id. Based on these rulings, there has

been a final decision on the merits as to the claims raised in Count One with respect to JPMorgan.

        The defendants next argue claim preclusion on the claim that the relevant funds were held

by National Century or JPMorgan in trust. These claims were raised as Counts Three, Four, and Five
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in the first suit. JPMorgan is a named defendant in Counts Four and Five; it is not a named

defendant in Count Three. The Ohio district court noted that “[t]hough JPMorgan is named as a

defendant on these claims, it is clear that JPMorgan has never asserted an ownership interest in the

funds; the bankruptcy estate is the party in interest.” The true dispute, as outlined by this Court in

its decision in the first suit, at the center of the arguments about whether the funds were held in trust,

is between Amedisys and National Century, not between Amedisys and JPMorgan. See id. at 537-39

(noting that summary judgment was inappropriate where genuine issues of material fact existed

about the ownership of the receivables in question—and whether they were traceable to

Amedisys—and noting that Amedisys would be required to show “that the monies claimed are the

proceeds of the receivables at issue, and not simply the commingled balance of the funds still in the

debtor’s possession”). JPMorgan did not assert an ownership interest in the funds or the receivables,

and JPMorgan does not have an interest in the claims addressed in these Counts. No matter that this

claim was decided in the first suit with regard to other co-defendants, JPMorgan is not liable on this

claim in either the first or second suits. Further, this Court noted that the reason it overturned

summary judgment against Amedisys on these counts in the first suit was because “the intention of

the parties in modifying performance under the Sale Agreement is in genuine dispute. If the parties

agreed that the money flowing through the lockbox would remain Amedisys’s, a trust may have

arisen. Therefore, if Amedisys is not, as the bankruptcy court assumed, a simple creditor of [National

Century] owed funds for purchased receivables, summary judgment is inappropriate.” Id. at 538.

Further, JPMorgan no longer holds any funds claimed by any party. For these reasons, though this

Court remanded these Counts in the first suit, the claims therein do not actually relate to JPMorgan.
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This Court’s previous remand and reversal on these claims does not bar JPMorgan’s claim

preclusion defense because this Court’s decision found that those claims did not relate to JPMorgan.

       Finally, JPMorgan is not a defendant with regard to the claims raised in Count Thirteen of

the first case. Thus, this Court’s reversal of summary judgment on that Count, against National

Century and in Amedisys’s favor, does not affect JPMorgan’s argument for claim preclusion in the

second suit.

       In sum, none of these reversed rulings affect Amedisys’s claims in the second suit against

JPMorgan. Those rulings that are relevant are in JPMorgan’s favor and thus satisfy the first prong

of the claim preclusion test. The district court did not err in finding that the first prong was met.

2. Third prong: Issue in subsequent action which should have been litigated in prior action

       The third prong of the claim preclusion test requires that, for claim preclusion to apply to an

issue in a subsequent action, the issue could have been litigated in a prior action. Wilkins, 183 F.3d

at 532. The parties’ arguments regarding this prong center on whether the Ohio bankruptcy court

had competent jurisdiction to rule on the first case. If it did have competent jurisdiction, then this

prong is satisfied because any claims brought in the subsequent second suit could have been litigated

before the Ohio bankruptcy court. If the bankruptcy court did not have jurisdiction, this prong is not

satisfied and JPMorgan’s claim preclusion defense is barred. This Court already implicitly decided

that the bankruptcy court had competent jurisdiction when it affirmed in part and reversed in part

the district court’s order affirming the bankruptcy court’s grant of summary judgment. In re Nat’l

Century Fin. Enters., Inc., 377 F. App’x at 533. Under the law of the case doctrine, an issue that has

been ruled on in a prior stage of a case is ordinarily considered settled and not subsequently
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reconsidered by the court; such settled issues are considered the “law of the case.” However, the law

of the case doctrine does not bar this Court from reconsidering jurisdictional issues. “We recognize

that the law of the case doctrine is discretionary when applied to a coordinate court or the same

court’s own decisions . . . .” Bowling v. Pfizer, Inc., 132 F.3d 1147, 1150 (6th Cir. 1998). We have

noted in an unpublished decision that “[i]ssues such as subject matter jurisdiction or appellate

jurisdiction may be particularly suitable for reconsideration.” In re LWD, Inc. 335 F. App’x 523, 526

(6th Cir. 2009) (quoting Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001) (alteration in

original) (internal quotation marks omitted)). For these reasons, we address the jurisdictional issue

here.

        “Bankruptcy courts have original jurisdiction over all claims arising under the Bankruptcy

Code. Such claims, referred to as ‘core’ proceedings, either invoke[] a substantive right created by

federal bankruptcy law or . . . could not exist outside of the bankruptcy.” Browning v. Levy, 283

F.3d 761, 772-73 (6th Cir. 2002) (alteration in original) (citation omitted). Under the Bankruptcy

Code, a bankruptcy court may also hear proceedings on non-core claims that are “otherwise related

to a case under title 11.” 28 U.S.C. § 157(c)(1). We have held that a claim is “related to” the

bankruptcy proceeding “if the outcome could alter the debtor’s rights, liabilities, options, or freedom

of action (either positively or negatively) and which in any way impacts upon the handling and

administration of the bankrupt estate.” In re Dow Corning Corp., 86 F.3d 482, 489 (6th Cir. 1996)

(quoting In re Pacor, 743 F.2d 984, 994 (3d Cir. 1984) (internal quotation marks omitted)). Further,

we have held that cases decided under the “related to” bankruptcy jurisdiction may be used to assert

claim preclusion. See Browning, 283 F.3d at 773 (noting that this Court has “applied res judicata
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to a non-core claim”); Sanders Confectionary Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474, 482 (6th

Cir. 1992) (“[I]n certain circumstances bankruptcy proceedings can also be binding on non-core

proceedings.”).

        While Amedisys admits that JPMorgan could raise contribution and indemnification claims

that would qualify as claims to the bankruptcy estate, Amedisys argues that these claims would have

such low priority as to render their practical effect on the estate so negligible as to exclude them from

“related to” bankruptcy jurisdiction. Amedisys also argues that JPMorgan, as a non-debtor, cannot

avail itself of the “related to” jurisdiction of the bankruptcy court. Both of these arguments are

unconvincing: “The potential for [defendant’s] being held liable to the nondebtors in claims for

contribution and indemnification, or vice versa, suffices to establish a conceivable impact on the

estate in bankruptcy.” In re Dow Corning, 86 F.3d at 494. Based upon our holding in In re Dow

Corning, Amedisys’s arguments regarding the supposedly negligible impact of the claims on the

estate and regarding JPMorgan’s status as a non-debtor fail.

        Amedisys’s arguments about whether such claims for contribution and indemnification

would be “allowable” as claims against the bankruptcy estate are not relevant—as stated by this

Court in In re Dow Corning, id., the “conceivable impact” of a claim on a bankruptcy estate, rather

than its allowability as a claim on the estate’s assets, is the touchstone of “related to” jurisdiction.

Amedisys argues that underlying this Court’s decision in In re Dow Corning is the fact that the

contribution claims would have numbered in the thousands; a finding that the bankruptcy court

lacked subject matter jurisdiction over those thousands of claims would have jeopardized the

debtor’s reorganization plan. While we noted our concern for this issue in that case, see id., we did
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not base our holding solely on that consideration. See id. (holding that “[t]he potential for Dow

Corning's being held liable to the nondebtors in claims for contribution and indemnification, or vice

versa, suffices to establish a conceivable impact on the estate in bankruptcy”).

       The standard for determining a bankruptcy court’s jurisdiction is whether a case could

“conceivably have any effect on the estate,” not whether it would definitely affect it in a material

way. Id. at 489 (internal quotation marks omitted). Our Circuit “does not require a finding of

definite liability of [an] estate as a condition precedent to holding an action related to a bankruptcy

proceeding.” Id. at 491 (alteration in original) (internal quotation marks omitted).

       Finally, and separately, it was Amedisys who, after filing the first lawsuit, moved to have the

case referred to bankruptcy court. Amedisys has previously argued that the claims were core, or at

least “related to,” claims falling under the bankruptcy court’s jurisdiction. Whether the bankruptcy

court has competent jurisdiction is a separate issue, but barring claim preclusion on the basis of

incompetent jurisdiction would reward Amedisys for first moving to refer the case to bankruptcy

court and then arguing that the bankruptcy court does not have competent jurisdiction over the case.

The district court did not err in finding that the third prong of claim preclusion is met. For these

reasons, we affirm the district court’s judgment that claim preclusion applies.

                                                  IV.

       Finally, Amedisys contends that JPMorgan waived its claim preclusion defense by failing to

“seek an order of reference to the bankruptcy court once this matter transferred to the Southern

District of Ohio,” and, by such failure, acquiesced to Amedisys’s decision to litigate similar claims

in two separate fora. Simultaneously maintaining separate actions, or claim-splitting, is generally
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prohibited, but Amedisys relies on a Fifth Circuit case holding that it is permitted where the

“defendant[ has] agree[d] or acquiesce[d] in the splitting of the claim.” Matter of Super Van, Inc.,

92 F.3d 366, 371 (5th Cir. 1996). The court in Super Van noted that it was joining “the First, Fourth,

Seventh, and Ninth Circuits in adopting Section 26(1)(a) of the Restatement [(Second) Judgments].”

Id. The Super Van court noted further that “[d]espite being fully informed and having ample

opportunity to do so, none of the defendants objected to the splitting of the claims. In fact, they,

through counsel, actually stated a preference for the splitting.” Id. The logical corollary to Super

Van is that lodging an objection to claim-splitting is sufficient to overcome an argument that the

defendant acquiesced to the splitting.

       Here, JPMorgan moved to transfer the second case to the Ohio district court; in so doing,

JPMorgan objected to Amedisys’s attempted claim-splitting. Amedisys argues that this motion was

insufficient to defeat Amedisys’s argument that JPMorgan had acquiesced to simultaneous litigation,

and that JPMorgan also should have sought “an order of reference transferring [the second case] to

the bankruptcy court.” Amedisys seeks to have this Court impose an additional affirmative duty on

JPMorgan beyond the mere objection required by Super Van and the Restatement. Neither authority

is binding on this Court, but the policy of requiring only objection by a defendant in order to defeat

claim-splitting is a natural complement to the background principle that claim-splitting is generally

prohibited. Because JPMorgan did object to the second suit, we affirm the district court’s judgment.

                                                  V.

       This Court’s decision on the Ohio claims precludes Amedisys’s second suit raising Louisiana

state law claims. We AFFIRM the judgment of the district court.
