NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0985n.06
No. 11-5902
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
NATASHA B ROOKS; ETHEL BROOK S, dba Full L ine Maintena

nce, dba Pluml ine Dining , Tots and Volunteer

Temp, Plaintiffs,
I SAAC BROOKS, F ull L ine Maintena nce, dba Pluml ine Dining , dba Tots and Voluntee r Temp, Plaintiff-Appellant,

v. WHI RL POOLCORPOR ATI ON; MAYTAG CORPOR ATI ON; J ANI CE PAGE HOL L I NGSWORTH; GARY HOL L I NGSWORTH, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TENNESSEE

Be fore : MARTI

N and WHI TE, Circuit J udg es; ECONOMUS, District J udg e. *

PER CURI AM. I saac Br ooks, a pro se Tenne ssee resident, appea ls a district court judgme nt dismiss ing his civil action alleg ing violations of the Ra ckete er Influenc ed and Corrupt Org anizations Act (RI CO), 18 U.S.C. § 1961, et seq.; neg li g ent supervision; neg lige nt rete ntion; and brea ch of
contra ct.

The Honora

ble Peter C. Economus, United States Senior District J udg e for the Norther n * District of Ohio, sitting by desig nation.No. 11-5902 - 2 - I n Dec ember 2004, Br ooks, doing business as Temp Owned Tempora ry Service (TOTS), a Tenne ssee Corporation doing business in Madison Cou n t y , Tenne ssee, enter ed into a service ag ree ment with May

tag , which was later purcha sed by Whirlpool Corporation. I n 2010, Br ooks, doing business as TOTS, filed a civil action ag ainst Whirlpool , Gar y Hollingswor

th, and J anice Hollingswor

th (husband and wife)

. Br ooks alleg ed that from 1993 to 2008, he was for ced to pay

more than one milli on dollars to Gar y Hollingswor

th in ki ck backs, which had been demande d by J anice Hollingswor

th, who was a Whirlpool Human Resource Manag er, in order to protec t Br ooks’s business rela tionship. Br ooks’s amende d complaint alleg ed conspirac y and RI CO violations by the Hollingswor

ths; neg lige nt supervision and re tention by Whirlpool ; and bre ach of contra ct. The defe ndants filed a motion to dismiss the complaint o n re s j u dicata g rounds. I n 2008, “T.O.T.S., I nc.” had filed a complaint ag ainst Whirlpool and J anice Hollingswor th in t h e C i rcuit Court of Madison County , Tenne ssee, alleg ing a brea ch of contra ct and soug ht to rec over improper pay ments. The state court dismiss ed the action finding that T.O.T.S., Inc. had its corpor ate char ter revoke d in 1998, pr ior to e ntering into the service ag ree ment with Whirlpool in 2004. As a result, T.O.T.S., I nc. could not state a claim for brea ch of contra ct bec ause it wa s conducting business in violation of st ate law at t he ti me t he co n t ract was alleg edly formed. The state court also denied a reque st to substitut e Br ooks as a “re al party in interest.” T.O.T.S., Inc. appea led and the Tenne ssee Court of Appea ls aff

irmed the trial court’s decision. T. O.T.S. v. W hirlpool Corp., No. W2009- 01855-COA-R3-CV, 2009 WL4878585, at *4 (Te nn. Ct. App. Dec. 18, 2009)

. Br ooks filed a response to the defe ndants’ motion to dismiss asser ting that res judicata was not applicable to the case
. After consideration, the district court conclude d that Br ooks’s fede ral complaint was ba

rre d by the doctrine of re s judicata a nd dismiss ed the c ase. The doctrine of res judicata includes two kinds of prec lusion: “issue prec lusion” and “cla im prec lusion.” Migra v. W arren City Sch. Di s t

. B d

. of Educ. , 465 U.S. 75, 77 n.1 (1984). I ssue prec lusion is when a judgme nt fore closes “re litigati o n o f a matter that has been litigated andNo. 11-5902 - 3 - decide d.” Id

. “Claim prec lusion ref ers to the ef

fe ct o f a judgme nt in fore closing litigation of a matter that never has been litigate d, beca use of a deter mination that it s hould have be en adva nced in an ea rlier suit.” Id

. Under Tenne ssee law, a party asser ting a res judicata defe nse “must demonstrate (1) that a court of competent jurisdiction rende red the prior judgme nt, (2) that the prior judgme nt was final and

on the merits, (3) that both proce eding s involved the same parties or their privies, and (4) that both proce eding s involved the s ame cause of action.” Y oung v. Barrow , 130 S.W .3d 59, 64 (Tenn. Ct. App. 2003). The district court’s judgme nt is revie wed de novo. Kane v. Magna Mixe r Co. , 71 F.3d 555, 560 (6th Cir. 1995). On appea l, Br ooks challeng es the district court’s finding s as to the second, third, and fourth prong s of Tenne ssee’ s four- part res judicata test. Wit h respe ct to prong two, Br ooks asser ts that his
state court suit was dismiss ed beca use T.O.T.S., I nc. lacke d standing to bring the action. He asser ts that a dismiss al for lack of standing is a jurisdictional ruling and does not opera te as a judgme nt “on the merits.” Br ooks’s argument on this po int is unavailing beca use the state court’s order g ranting the defe ndant’s motion to dismiss , and dismiss ing the case with pr ejudice, stated that “the Court f inds that the P laintiff cannot state a c ause of action for

brea ch of c ontrac t,” not that the case was being dismiss ed for lack of standing

. Acc ordin gl y , the district court proper ly conclude d that the state court’s dismiss al was an adjudication “on the merits” pu rs u an t t o state law. See Dye r v. Intera Corp ., 870 F.2d 1063, 1067 ( 6th Cir. 1989). Wit h respe ct to prong three , Br ooks asser ts that the state cause of action does not involve the

same parties as the fede ral cause of action and that he is not a privy of T.O.T.S., Inc. “I n the context of both res judicata and collater al estoppel, the conce pt of privity rela tes to the subject matter of the litigation.” State ex rel. Cihlar v. Crawf ord , 39 S.W .3d 172, 180 (Tenn. Ct. App. 2000) ( citationsNo. 11-5902 - 4 - omitted). “Privity connotes an identity of interest, that is, a mutual or succe ssive interest to the same rig hts.” Id . (citations omitted). The district court did not err in concluding that Br ooks was either the same party or a privy
to the state cause of action. Br ooks’s own aff idavit, filed in the state cou rt action, aver s that T.O.T.S., I nc. beg an as a corpor ation of which he was the orig inal founder and that he continued to do business as the same entity once the corpor ate char ter expired. Br ooks’s alleg ati o n s as a s ole proprietor of TOTS in the fede ral cause of action are the same alleg ations that he made on behalf of T.O.T.S., I nc. in the state cause of action. There fore , Br ooks is a privy to the subject matter of the state litiga tion. Finally , with respe ct to prong four, Br ooks asser ts that the fede ral case is not the same cause of action as the state case beca use the fede ral case cover s a di ff er ent time fra

me, names Gar

y Hollingswor

th as a defe ndant, and alleg es a RI CO violati o n
. T h i s ar g ument is unavailing

. Reg arding the time fra

me, Br ooks’s fede ral action alleg ed no fac ts that occur red afte r Fe bruar

y 2008, when he filed the state action. Reg arding differ ent claims and defe ndants, Br ooks could have named Gar y Hollingswor

th as a defe ndant or asser

ted a RI CO violation in his state court action, but failed
to do so. Res judicata prohibits re- litigation of all claims that wer e actua lly litigated as we l l as claims that should have be en litiga ted in a prior a ction. See Kane , 71 F.3d at 560. The district cour

t’s judgme nt is affirmed.