UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Joseph Odish, Cranbrook Capital 

Consulting Group, LLC, 

Plaintiffs, 

v. 

Apple, Inc., Timothy Cook, 

Northrop Grumman Corp., Wesley 

Bush, Nuance Communications, 

Inc. Cognitive Code Corp., Leslie 

Spring, Mimi Chen, John Chen, 

Salvatore Difazio, Robert Rosen, 

International Business Machines 

Corp, Joel Bock, Patrick Miller, 

Oracle Corp., U.S. Dentons, 

Defendants. 

________________________________/

Case No. 15-cv-11955 

Hon. Judith E. Levy 

Mag. Judge Mona K. Majzoub 

MEMORANDUM AND ORDER 

DISPOSING OF [10], [12] & [16] 

Plaintiffs Joseph Odish and Cranbrook Capital Consulting Group, 

LLC initiated this lawsuit on June 1, 2015, and filed their first 

amended complaint against seventeen individual and corporate 

defendants, bringing claims involving violations of securities, anti-trust, 

and civil rights laws, fraud, and conversion, as well as retaliation 

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against a federal whistleblower, and a claim of patent manipulation. 

(Amended Compl. Dkt. 5, Aug. 24, 2015.) Summons for each of the 

defendants were issued on June 4, 2015 (Dkt. 6), although no notice of 

service appears yet on the docket. Nonetheless, counsel for defendants 

Cognitive Code, Salvatore Difazio, Leslie Spring, Mimi Chen, and John 

Chen (collectively, “Cognitive Code defendants”) has filed an 

appearance in this matter. (Dkt. 11.) 

Before the Court is the Cognitive Code defendants’ motion to 

dismiss this case and sanction plaintiffs. (Dkt. 10). Also before the 

Court are plaintiffs’ request to strike their first amended complaint and 

motion for leave to file a second amended complaint. (Dkt. 12, 16). 

For the reasons provided below, defendants’ motion is GRANTED 

in part and DENIED in part, and plaintiffs’ motion is GRANTED in 

part and DENIED in part. The Court also grants the Cognitive Code 

defendants leave to move the Court for an award of fees and costs. 

I. BACKGROUND 

Plaintiffs Joseph Odish, an attorney licensed in Michigan, and his 

wholly owned company, Cranbrook Capital Consulting Group, LLC, are 

no strangers to the Eastern District of Michigan. This matter follows 

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seven prior cases brought by one or both of these plaintiffs in this 

District, including one, No. 14-cv-14886, before this Court.1 As for active 

litigation, in addition to the above-captioned matter, which the Court 

will on occasion refer to as “Odish 8” when necessary for clarity, 

plaintiff Odish has renewed an earlier qui tam action, Odish 4, against 

 

1 (1) Joseph Odish, Sahar Abroo, and Cranbrook Capital Consulting Group, 

LLC v. Robert Rosen, Rosen and Associates, P.C. and John Does 1-50, No. 13-cv13799, filed Sept. 6, 2013, terminated Apr. 17, 2014—dismissed for lack of subject 

matter jurisdiction, (“Odish 1”); (2) Joseph Odish and Cranbrook Capital Consulting 

Group, LLC v. Morganthaler Ventures, Gary Morganthaler, Gaye Morganthaler, 

David Jones, John Does 1-20, and Peregrine Semiconductor, Inc., No. 13-cv-14026, 

filed Sept. 19, 2013, consolidated with (3) No. 14-cv-10283 on Feb. 12, 2014, 

terminated Mar. 11, 2015—dismissed for lack of personal jurisdiction, (“Odish 

2&3”); (4) Cranbrook Capital Consulting Group, LLC, United States of America ex 

rel. Joseph Odish v. Cognitive Code Corp., Inc., Northrop Grumman Corp., Inc., 

Nuance Communications, Inc., Leslie Spring, Mimi Chen, John Chen, Sal Difazio, 

Robert Rosen, and John Bourbeau, Jr., 14-cv-10736, filed Feb. 18, 2014, terminated 

Dec. 03, 2015—notice of voluntary dismissal, (“Odish 4”); (5) Joseph Odish and 

Cranbrook Consulting Group, PLLC v. Cognitive Code Corporation, Inc, John 

Bourbeau, Jr., Mimi Chen, Sal Difazio, John Chen, Leslie Spring, and Apple, Inc., 

No. 14-cv-12382, filed June 18, 2014, terminated June 25, 2014—notice of voluntary 

dismissal, (“Odish 5”); (6) Joseph Odish and Cranbrook Capital Consulting Group, 

LLC v. Dick & Miller, P.C., Patrick Miller, Don Davidson, MEI Defense 

Technologies, Inc., and Intellitar, Inc., No. 14-cv-12571, filed July 1, 2014, 

terminated Nov. 10, 2014—notice of voluntary dismissal (“Odish 6”); (7) Joseph 

Odish and Cranbrook Capital Consulting Group, LLC v. Nuance Inc., Apple Inc, 

Northrop Grumman Corp., Inc., Timothy Cook, Thomas Beaudoin, Wesley Bush, 

Cognitive Code Corp., Inc., Leslie Spring, Robert Rosen, Howard Friedman, 

Salvatore Difazio, John Chen, and Mimi Chen, No. 14-cv-14886, filed Dec. 23, 2014, 

terminated May 15, 2015—dismissed under Fed. R. Civ. P. 4(m) for failure to 

prosecute (“Odish 7”). 

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the corporate defendants in Odish 8, and that matter, No. 15-cv-13395 

(“Odish 9”), is also presently before this Court.2 

The above-captioned matter—and, indeed much of the afore 

mentioned litigation—arises from a business relationship that began 

between plaintiffs and the Cognitive Code defendants in early 2011 and 

ended in March 2012. (See, e.g., Am. Compl. ¶¶ 10, 261, 268.) Plaintiffs 

assert claims and injuries arising from Odish’s allegedly having become 

“a shareholder and board member of a tech startup Cognitive Code[] 

that in the previous year had become a vendor and approved 

subcontractor for Northrop Grumman.” (Id. at ¶ 10).) From what the 

Court is able to glean from an amended complaint rife with incomplete 

sentences, pleading paragraphs whose numbers are anything but 

sequential, and references to unnumbered exhibits, plaintiffs’ claims 

center around a technology called “Silvia,” purportedly created by 

Cognitive Code and allegedly similar to the software known as “Siri” 

featured in products sold by Apple, Inc. (See, e.g., Am. Compl. ¶ 216). 

Apparently, defendants Apple, Nuance, and International Business 

 

2 Joseph Odish v. Northrup Grumman Corp., Cognitive Code Corp., Inc., 

Nuance Communication, Inc., and Apple, Inc., No. 15-cv-13395, filed Sept. 28, 2015, 

(“Odish 9”). 

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Machines Corp., presumably along with Apple CEO, defendant Cook, 

are implicated in this matter because of alleged conflicts of interest 

swirling around Apple’s acquisition of the “Siri” software from Nuance 

and an alleged patent infringement by the owners of “Siri” against the 

owners of “Silvia.” (See, e.g., id. at ¶¶ 342, 271.) The patent in dispute 

was purportedly issued on February 28, 2012, as No. 8126832. (Id. at ¶ 

714.)3 Plaintiffs also assert conspiracy and fraud on the part of 

defendants Spring and Bock with regard to this and related patents. 

(Id. at 715-16.) The Cognitive Code defendants are alleged to be vendors 

and approved subcontractors of defendant Northrop Grumman and its 

CEO defendant Bruce. (See, e.g., Id. at ¶¶ 10, 14-15, 18.) 

Plaintiffs allege that Odish and Cognitive Code executed a Letter 

of Intent in March 2011 (“LOI”) that obligated Odish to pay $175,000 to 

Cognitive Code in exchange for equity in the company—a tech startup 

at the time—and to participate in business engagements with the 

company. (See, e.g., id. at ¶¶ 15-17.) Plaintiffs allege that the parties 

 

3 There is a patent assigned to Cognitive Code Corp. that lists Leslie Spring 

as the inventor associated with this patent number. It was filed on March 6, 2008, 

and published on Sept. 25, 2008. No activity is associated with this patent on Feb. 

28, 2012. USPTO Patent Full-Text and Image Database (available at 

http://patft.uspto.gov/netahtml/PTO/search-bool.html). 

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executed an addendum to the LOI (“Addendum”) on March 18, 2011, 

and that this addendum provided “dual signature rights” for defendant 

Spring and Odish to control business initiatives of Cognitive Code. (Id.

at ¶¶ 197-98.) Additionally, the amended complaint asserts that on 

April 10-11, 2011, plaintiffs received from the Cognitive Code 

defendants documentation of their stock interests in defendants’ 

company via email. (Id. at ¶¶ 212-13.) At this same time, plaintiffs 

allege, Odish, who had initially served as “in-house counsel” to 

Cognitive Code, “left his practice of law and dedicated his full time to 

Cognitive Code, spending over 2000 hours during the following year” as 

an employee for the company. (Id. at ¶ 19.) According to the complaint, 

shortly thereafter, on April 17, 2011, Odish, his former associate John 

Bourbeau, and Cognitive Code signed an agreement (“April 17 

Agreement”) regarding option rights for 75,000 shares. (Id. at ¶¶ 375-

76). Plaintiffs also allege that the shares they were granted outright or 

to which they were given options were non-dilutable. (See, e.g., id. at ¶¶ 

376, 459-60, 469, 486.) 

The complaint describes a souring of the relationship with 

defendants beginning sometime late in 2011, and culminating in legal 

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demands in March 2012. (See, e.g. id. at 456-62). These disputes 

ultimately led plaintiffs to initiate a lawsuit in the Central District of 

California on May 6, 2013, seeking a 37.5 percent share in Cognitive 

Code, Odish’s “dual signature” rights under the Addendum, and a board 

seat. (Def. Mem. Exs. 1, 3 at 4; see also section I.A infra.) 

Plaintiffs allege that their former attorney, defendant Rosen, “was 

involved in the conspiracy” to “strip Odish of his rights”—presumably 

with regard to his purported shares and signature authority in 

Cognitive Code—and also participated in a conspiracy to defraud the 

United States Government vis-à-vis its contracts with the named 

corporate defendants in health care, criminal justice, and defense 

contracts. (See, e.g., Am. Compl. ¶¶ 22-28.) Plaintiffs also refer 

repeatedly to the first qui tam action, Odish 4, in their amended 

complaint, alleging attorney misconduct against defendant Rosen, a 

criminal conspiracy by all defendants against United States 

government interests, and actions taken by all defendants to 

manipulate and fraudulently register patents. (¶¶ 32, 40, 232-36, 243, 

282, 339, 607, 651-56, 706-25.) 

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A. The California Case 

Plaintiffs reference this lawsuit, C.D. Cal. No. CV 12-09069 

(“California Case”), numerous times in their amended complaint. (See, 

e.g., Am. Compl. ¶¶ 9, 11, 34, 502, 527, 552, 635, 647, 654, 708, 720, 

723, 774.) The California Case was filed by Odish, John Bourbeau, and 

Cranbrook Capital Consulting Group, LLC on October 22, 2012, against 

the Cognitive Code Defendants and was dismissed on May 27, 2015, 

when the court granted defendants’ motion for summary judgment. The 

dismissal was affirmed on July 20, 2015, in response to plaintiffs’ Rule 

60 motion. (Def. Mem. Exs. 3, 7,8; C.D. Cal. No. CV 12-09069.)4 The 

California court held, and this Court adopts as facts alleged in the 

pleadings, that, for reasons grounded in the California State statute 

governing attorney conduct, the LOI and April 17, 2011 agreement 

referred to in the amended complaint were void and unenforceable. 

(Def. Mem. Ex. 3 at 10.) For similar reasons, the California court held 

that the Addendum and the April 10, 2011 email were also 

 

4 “[D]ocuments that a defendant attaches to a motion to dismiss are 

considered part of the pleadings if they are referred to in the plaintiff's complaint 

and are central to her claim.” Venture Global Eng'g, LLC v. Satyam Computer 

Servs. Ltd., No. 10-15142, 2014 WL 7013607, at *4 n.5 (E.D. Mich. Dec. 11, 2014) 

(quoting Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir.1997)). 

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unenforceable. (Id. at 12-13.) The California lawsuit brought by 

plaintiffs against the Cognitive Code defendants is pending appeal 

before the Ninth Circuit Court of Appeals, but will not be fully briefed 

until February 26, 2016. Case No. 15-55950, 9th Cir., NOA filed June 

19, 2015. 

The California court held that none of the asserted agreements 

and emails implying entitlement to shares of Cognitive Code, rights to 

patents controlled by defendants, or decision-making authority 

regarding Cognitive Code were valid. (Def. Mem. Exs. 3, 8.) The 

California court determined that the alleged agreements and 

entitlements at the center of that litigation were the result of attorney 

misconduct in violation of California law, including a breach of Odish’s 

fiduciary duties toward his Cognitive Code clients, and were therefore 

invalid. (Id. Ex. 3 at 9-10.) The California court also reasoned that 

Odish was not acting in his clients’ (the Cognitive Code defendants’) 

interests, because assertions that he was entitled to non-dilutable 

shares of Cognitive Code and decision-making authority “would impair 

Cognitive Code’s ability to attract further investment” and “impede 

Cognitive Code’s ability to conduct its affairs.” (Id. Ex. 3 at 12.) 

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Finally, since the California court declared the alleged agreements 

between Odish and the Cognitive Code defendants to be voidable, it also 

dismissed the plaintiffs’ causes of action related to those alleged 

agreements. (Id. Ex. 3 at 18.) These claims included various contract 

torts, a prayer for injunctive relief to enforce the terms of the 

agreements and cancel stocks and warrants issued without Odish’s 

authority, as well as claims predicated on his alleged status as a 

stockholder. (Id.) The latter claims in particular “fail[] because the 

agreements for Cognitive Code stock are voidable.” (Id.) Finally, the 

court dismissed claims for “intentional misrepresentation,” “negligent 

misrepresentation,” and “suppression and concealment of the fact that 

Spring lacked authority to enter into the contracts” because plaintiffs 

put forth no evidence to support those claims, and because Odish’s own 

conduct “was manifestly unreasonable.” (Id. Ex. 3 at 19.) 

The California court made additional findings relevant to the 

present matter when it ruled on plaintiffs’ Rule 60 motion. Namely, in 

evaluating new evidence raised by Odish—a 2015 declaration by 

attorney Jason Green—the court explained that information therein 

was available to plaintiffs in 2013 when Green provided his first 

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declaration, and, in any event, there was no demonstration of due 

diligence—that the information provided by Green could not have been 

discovered at the time he submitted his 2013 declaration. (Id. Ex. 8 at 

6-7.) Finally, the court found no instances of fraud, misrepresentation, 

or misconduct on the part of any of the defendants, who include the 

Cognitive Code defendants, Rosen, Northrop Grumman, Nuance, the 

Morganthalers, and Apple. (Id. Ex. 8 at 7.) 

B. Litigation before this Court 

On September 28, 2015, three days after the Cognitive Code 

Defendants filed their reply brief in this matter, plaintiff Odish once 

more took aim against the corporate defendants, firing off another 

arrow, Odish 9, from his litigation quiver. (See note 2 supra.) Plaintiff 

admits early in Odish 9 that the action is a renewal of Odish 4. (Odish 

9, Dkt. 1 at 2.) Adhering to what appears to have become his modus 

operandi, observed now for the third time in matters before this Court, 

Odish has already filed a notice of intent to amend Odish 9 before the 

proverbial ink has dried on the original complaint or service of the 

original complaint on any defendants—and in this case, even before a 

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summons has been issued. (Id., Dkt. 4, Oct. 12, 2015; Odish 8, Dkt. 5; 

Odish 7, Dkt. 2.) 

C. Causes of Action 

As best the Court can determine, plaintiffs bring the following 

claims in the amended complaint: 

1. “Respondeat Superior/Agency” against all defendants (Am. 

Compl. ¶¶864-68) ; 

2. Declaratory Judgment to Seat a Grand Jury against 

Defendants Northrop Grumman, Nuance, Cognitive Code, 

and Apple (id. at ¶¶ 869-76); 

3. Violation of 42 U.S.C. § 1985 against the Cognitive Code 

Defendants, Rosen, and “their employees, agents and coconspirators” for preventing FBI and SEC agents from 

conducting an investigation (id. at ¶¶ 877-83); 

4. Duplicative of Count 3 (id. at ¶¶ 884-90); 

5. Violation of 42 U.S.C. § 1983 against the same defendants as 

Counts 3 and 4 for an unspecified constitutional or statutory 

violation (id. at ¶¶ 891-96); 

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6. Fraud against the Cognitive Code defendants and Rosen for 

“[a]ll of the misrepresentations and omissions detailed 

above. . . .” (id. at ¶¶ 897-914); 

7. [Cause of Action 15] Constructive Trust related to the 

Property and Securities Alleged by Plaintiffs (id. at ¶¶ 915-

20); 

8. [Cause of Action 16] Damages against all defendants for all 

actions alleged (id. at 921-23); 

9. [Cause of Action 17] Violation of the Sherman Anti-Trust 

Act, 15 U.S.C. §§ 1 et seq. against defendants Apple, 

Nuance, Northrop Grumman, “and their agents and 

employees” (id. at ¶¶ 924-35); 

10.[Cause of Action 25] Violations of § 20(a) of the Securities 

Exchange Act of 1934, 15 U.S.C. §§ 78a et seq. against the 

individual defendants and Northrop Grumman (id. at ¶¶ 

936-43); 

11.[unnumbered] Violation of Whistleblower Protection for 

Employees of Publicly Traded Companies, 18 U.S.C. § 

1514A against defendants Cognitive Code, Northrop 

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Grumman, Apple, and Nuance “and their agents” (id. at ¶¶ 

944-50); and 

12.[unnumbered] Violation of 53 U.S.C. § 297, Patent 

Manipulation, against the Cognitive Code defendants (id. at 

¶¶ 951-58). 

II. DEFENDANTS’ MOTIONS 

Defendants move the Court to dismiss this matter pursuant to 

Fed. R. Civ. P. 12(b)(1), 12(b)(6), and 41(a)(1)(B). They also move the 

Court to identify Odish as a “vexatious litigant” and impose a sanction 

barring him from filing any additional civil actions in this District 

without leave of court. (Dkt. 10 at 1-3). 

Plaintiffs oppose the motion in a brief that asserts defendants 

have brought their motion to distract the Court from their own 

wrongdoing. (Pl. Oppos. 8-12.) Plaintiffs oppose defendants’ assertion of 

claim and issue preclusion on the grounds that their counts of fraud, 

whistleblower retaliation, “equitable estoppel,” and “detrimental 

reliance” have not been asserted previously in any litigation against 

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these parties.5 (Id. at 12-13.) Plaintiffs oppose the imposition of 

sanctions, but also argue that should the Court contemplate a sanction 

limiting their rights to file claims in the District, it should exclude from 

such a sanction the right to re-file the qui tam action—which plaintiffs 

have already refilled as Odish 9. (Id. at 13-14.). Plaintiffs argue, 

without citing any caselaw in support, that defendants’ motion is an 

untimely Rule 56 motion. (Id. at 14-15.) And, finally, they assert that 

public policy demands consideration of the rights of whistleblowers to 

press their actions. (Id. at 15-16.) 

The Cognitive Code defendants reiterate in their reply brief that 

plaintiffs’ claims are entirely precluded through the California court’s 

ruling, because the alleged facts all occurred between 2011 and 2013, 

well before the California court issued its final judgment, and either 

were raised, or should have been raised, in the context of that litigation. 

(Reply Mem. 1-5.) Defendants also assert that plaintiffs did not oppose 

their arguments regarding subject-matter jurisdiction and the 

applicability of Rule 41(a)(1)(B). (Id. at 5-6.) Finally, defendants cite 

 

5 The Court has found no instance or reference to “equitable estoppel” or 

“detrimental reliance” in plaintiffs’ amended complaint. 

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plaintiffs’ request to strike their first amended complaint due to 

“errata,” as well as the hundreds of attached, but unreferenced, 

exhibits, as evidence of the vexatious quality of their litigation efforts. 

(Id. at 6-7 (citing Dkt. 12).) 

A. Legal Standards 

The grounds raised by the Cognitive Code defendants for 

dismissal present different legal standards. The Court addresses first 

the distinct nature of the legal standards governing motions to dismiss 

under Rule 12(b)(1), compared with Rule 12(b)(6), and then addresses 

the legal standards governing the doctrines of issue and claim 

preclusion underlying defendants’ motion to dismiss. Legal standards 

for Rule 41(a)(1)(B) follow. 

1. Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1) 

“’[A] plaintiff must possess both constitutional and statutory 

standing in order for a federal court to have jurisdiction.” Loren v. Blue 

Cross & Blue Shield of Mich., 505 F.3d 598, 606 (6th Cir. 2007). 

Constitutional standing requires three elements: (1) that the plaintiff 

has suffered “an invasion of a legally protected interest, which is 

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concrete and particularized . . . and . . . actual or imminent”; (2) that the 

injury is “fairly . . . trace[able] to the challenged action of the 

defendant”; and (3) that a favorable decision must be likely to redress 

that injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) 

(internal quotations omitted) (alteration in original). When a court’s 

subject-matter jurisdiction is challenged under Fed. R. Civ. P. 12(b)(1), 

the plaintiff has the burden to prove jurisdiction. Moir v. Greater 

Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). 

A motion to dismiss under Rule 12(b)(1) can be on a facial or 

factual basis. See, e.g., RMI Titanium Co. v. Westinghouse Elec. Corp., 

78 F.3d 1125, 1134 (6th Cir. 1996). The facial attack preserves 

“safeguards to the plaintiff,” in that allegations in the complaint are 

presumptively true, while under a factual attack, the “the trial court is 

free to weigh the evidence and satisfy itself as to the existence of its 

power to hear the case.” Id. (quoting Mortensen v. First Federal Savings 

and Loan Ass’n, 549 F.2d 884, 890 (3d Cir. 1977). The Sixth Circuit has 

explained the crux of a 12(b)(1) motion and its distinction from other 

dispositive motions as follows: 

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[I]n a Rule 12(b)(6) motion in which matters outside the 

record are relied upon as they were here, the moving party . . 

. had the burden of showing there are no genuine issues as to 

any material facts, as the motion shall be treated as one for 

summary judgment. Fed.R.Civ.P. 56(c). Conversely, where 

subject matter jurisdiction is challenged under Rule 12(b)(1), 

. . . the plaintiff has the burden of proving jurisdiction in 

order to survive the motion. Perhaps even more importantly, 

when a Rule 12(b)(6) motion is converted to a Rule 56 motion 

for summary judgment, the court, upon finding genuine 

issues as to material facts, must deny the motion; whereas on 

a Rule 12(b)(1) challenge to subject matter jurisdiction, the 

court is empowered to resolve factual disputes.

Id. at 1134-35 (quoting Rogers v. Stratton Industries, Inc., 798 F.2d 913 

(6th Cir. 1986) (emphasis in original)). 

When Rule 12(b)(6) is raised alongside Rule 12(b)(1) in a motion to 

dismiss, courts must first address the Rule 12(b)(1) issue before 

addressing the validity of the claim itself. Moir, 895 F.2d at 269 (citing 

Bell v. Hood, 327 U.S. 678, 682 (1946)). The preclusive effect of any 

factual findings made in support of a Rule 12(b)(1) ruling are limited to 

the jurisdictional question. U.S. v. Ritchie, 15 F.3d 592, 598 (6th Cir. 

1994). A dismissal under Rule 12(b)(1) may afford the plaintiff the 

opportunity to re-plead the matter to cure the lack of subject-matter 

jurisdiction. Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 

(6th Cir. 1990). 

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2. Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) 

When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 

the Court must “construe the complaint in the light most favorable to 

the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,

684 F.3d 605, 608 (6th Cir. 2012). Moreover, documents attached to a 

plaintiff’s pleading are incorporated into the pleading, but if such an 

attachment provides facts that conflict with the pleadings, the facts 

alleged in the attachment prevail over those alleged in the complaint. 

Williams v. CitiMortgage, Inc., 498 F. App'x 532, 536 (6th Cir. 2012) 

(citing cases). 

“To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to relief that 

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A 

plausible claim need not contain “detailed factual allegations,” but it 

must contain more than “labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). 

While a court is generally constrained to the pleadings when 

considering a motion to dismiss under Rule 12(b)(6), matters of public 

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record, including the existence of judicial proceedings and court 

opinions may be taken into account. Winget v. JP Morgan Chase Bank, 

N.A., 537 F.3d 565, 576 (6th Cir. 2008). Moreover, “a defendant may 

introduce certain pertinent documents” referenced by the plaintiff in his 

pleadings but not attached to them, and these documents may be 

considered in a 12(b)(6) motion when they are central to the claims. 

Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997); In re Omnicare, 

Inc. Sec. Litig., 769 F.3d 455, 466 (6th Cir. 2014). 

3. Issue and Claim Preclusion 

Issue and claim preclusion, often referred to as res judicata and 

collateral or direct estoppel,6 are doctrines governing the effect of a 

prior judgment in foreclosing present litigation—or relitigation—of a 

matter. Heylinger, 126 F.3d at 852 (citing Migra v. Warren City School 

Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984)). These doctrines arose in 

common law and rest in principles of judicial economy most succinctly 

described as “a losing litigant deserves no rematch after a defeat fairly 

 

6 “[I]n the interests of precision and clarity,” the Court will “refrain from 

using the predecessors of those terms, whose meanings have become so convoluted.” 

Heylinger v. State University and Community College System of Tennessee, 126 F.3d 

849, 852 (6th Cir. 1997) (quoting Barnes v. McDowell, 848 F.2d 725, 728 n.5 (6th 

Cir. 1988)). 

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suffered.” B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S.Ct. 1293 

(2015) (quoting Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 

104 (1991)). Issue preclusion prevents relitigation of a matter already 

determined by a final judgment, even if the issue arises in a different 

claim. Heylinger, 126 F.3d at 852 (citing Migra, 465 U.S. at 77 n.1); 

Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Claim preclusion 

“foreclos[es] litigation of a matter that has never been litigated, because 

of a determination that it should have been advanced in an earlier suit,” 

and it applies irrespective of whether the subsequent litigation raises 

the same issues. Id. (quoting Migra, 465 U.S. at 77 n.1); Taylor, 553 

U.S. at 892. In other words, these related doctrines “encourage[] 

reliance on judicial decisions, bar[] vexatious litigation, and free[] the 

courts to resolve other disputes.” Brown v. Felsen, 442 U.S. 127, 131 

(1979). 

Both issue and claim preclusion can be properly raised under Rule 

12(b)(1) to challenge the court’s subject-matter jurisdiction. See, e.g., In 

re Graves, 282 F. App’x 432 (6th Cir. 2008); 5 Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed. 1997). 

These issues can also be addressed under a Rule 12(b)(6) motion to 

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22 

dismiss. See, e.g., Donohue ex rel. Estate of Donohue v. United States, 

No. 1:05 CV 175, 2006 WL 2990387, at *3 (S.D. Ohio Oct. 18, 2006) 

(citing Westwood Chemical Co., Inc. v. Kulick, 656 F.2d 12247, 1227 

(6th Cir.1981)). If the doctrine is applied to a motion to dismiss for lack 

of subject-matter jurisdiction under Rule 12(b)(1), the preclusive effect 

of the court’s ruling is limited to the issue of jurisdiction and does not 

prevent the plaintiff from repleading to cure the lack or jurisdiction or 

raise the matter in a court that does have jurisdiction. Ritchie, 15 F.3d 

at 598. 

A claim is precluded when four required elements are present: 

(1) a final decision on the merits by a court of competent 

jurisdiction; (2) a subsequent action between the same 

parties or their “privies”; (3) an issue in the subsequent 

action which was litigated or which should have been 

litigated in the prior action; and (4) an identity of the causes 

of action. 

Browning v. Levy, 283 F.3d 761, 771-72 (6th Cir. 2002) (quoting

Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir. 1997)). In 

particular, the fourth element is satisfied if “the claims arose out of the 

same transaction or series of transactions or whether the claims arose 

out of the same core of operative facts.” Id. at 773-74 (quoting In re 

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23 

Micro-Time Mgmt. Sys., Inc., 983 F.2d 1067 (Table), 1993 WL 1067, at 

*5 (6th Cir. 1993)). 

Issue preclusion entails the following elements: 

(1) the question in this case is the same as the one raised in 

the earlier litigation; (2) the answer given in the earlier 

litigation was necessary to the decision; (3) that decision was 

a final judgment on the merits; and (4) the affected party 

had a “full and fair opportunity” to litigate the issue in the 

prior litigation. 

United States v. United Technologies Corp., 782 F.3d 718, 725 (6th Cir. 

2015) (citing Kosinski v. C.I.R., 541 F.3d 671, 675 (6th Cir. 2008). The 

legal theories in which the issues arose in the prior litigation, compared 

to the subsequent litigation, are immaterial to issue preclusion, as long 

as the above conditions are met. Id. The essence of issue preclusion is to 

“prevent[] the second court from ‘deciding the same factual issues that 

were decided earlier.’” Id. at 729 (quoting Falconer v. Meehan, 804 F.2d 

72, 76 (7th Cir. 1986)). 

A judgment retains its preclusive effect even when an appeal is 

pending. Smith v. S.E.C., 129 F.3d 356, 363 n.7 (6th Cir. 1997); Erebia 

v. Chrysler Plastic Products Corp., 891 F.2d 1212, 1216 n.1 (6th Cir. 

1989). Importantly, the preclusion applies “not only to bar the parties 

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24 

from relitigating issues that were actually litigated but also to bar them 

from relitigating issues that could have been raised in an earlier action.” 

J.Z.G. Res., Inc. v. Shelby Ins. Co., 84 F.3d 211, 214 (6th Cir. 1996) 

(emphasis in original) (citing Commissioner v. Sunnen, 333 U.S. 591, 

597 (1948). Because of the powerful effect these doctrines can have on 

“grounds and defenses not previously litigated,” courts are warned to 

invoke them “only after careful inquiry.” Brown v. Felsen, 442 U.S. 127, 

132 (1979). 

Finally, courts may raise claim preclusion sua sponte and dismiss 

a matter under Rule 12(h)(3) if there is no subject-matter jurisdiction. 

Agg v. Flanagan, 855 F.2d 336, 344 (6th Cir. 1988) (Contie, J. 

dissenting) (discussing cases and predicting that “as courts become 

increasingly concerned with their interests in forestalling repetitive 

litigation, this action will become more common”). 

4. The Two-Dismissal Rule 

Federal Rule 41(a)(1)(B) provides that in the case of a voluntary 

dismissal by a plaintiff, “if the plaintiff previously dismissed any 

federal- or state-court action based on or including the same claim, a 

notice of dismissal operates as an adjudication on the merits.” This 

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two-dismissal rule has the effect of preventing a further action on the 

same claim. Wright & Moore, 9 Fed. Prac. & Proc. Civ. § 2368 (3d ed. 

1997). Rule 41(a)(1)(B) applies to situations in which a prior action is 

dismissed before process is served, and only when the defendants in 

both actions “are the same, substantially the same, or in privity in both 

actions.” Id.; Evans v. Laborers’ Dist. Council & Contractors’ Pension 

Fund of Ohio, 602 F. App’x 608, 615 (6th Cir. 2015). The two-dismissal 

rule was instituted for the practical necessity of “prevent[ing] an 

unreasonable use of dismissals” to excessively harass defendants by 

bringing multiple suits against them that do not reach a resolution. 

Evans, 602 F. App’x at 614 (internal quotation omitted). 

B. Analysis 

1. Subject-matter jurisdiction 

Defendants plainly raise their 12(b)(1) motion on factual grounds, 

rather than facial ones. They argue that plaintiffs lack constitutional 

standing because there is no injury in fact traceable to defendants’ 

actions—that is, all of plaintiffs’ claims derive from allegations that 

they own Cognitive Code stock, but that these claims are precluded by 

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26 

the California court’s judgment. (Def. Mem. 16-18.) Defendants’ 

assertions plainly contradict plaintiffs’ repeated claims of entitlement 

to, or actual ownership of, shares in Cognitive Code. Plaintiffs counter 

that the California Case has no preclusive effect here, because “a 

majority of those claims arose after last amended complaint and include 

actionable conduct since this action was filed.” (Reply Mem. 12-13.) 

Plaintiffs assert Fed. R. Civ. P. 15 and Lawson v. FMR, LLC,7 as legal 

authority for their position, but they do not specify which claims from 

which amended complaint in which proceeding before which court saves 

this matter, Odish 8, from dismissal for lack of subject-matter 

jurisdiction through claim preclusion. 

The Court must resolve these material issues of fact in order to 

determine if subject-matter jurisdiction exists to hear this case. 

a. Impact of the California Litigation 

As recited in section I.A supra, the California Case features 

prominently in plaintiffs’ amended complaint, yet plaintiffs did not 

 

7 134 S.Ct. 1158 (2014) (holding that whistleblower protection under the 

Sarbanes-Oxley Act, 18 U.S.C. § 1514A(a), extended to employees of private 

contractors and subcontractors serving public companies). 

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attach the opinions issued by the California court granting defendants 

summary judgment and affirming that decision to their complaint. The 

Cognitive Code defendants attach to their motion to dismiss both 

decisions in the California Case. In holding that “a defendant may 

introduce certain pertinent documents if the plaintiff fails to do so,” the 

Sixth Circuit explained that “[o]therwise, a plaintiff with a legally 

deficient claim could survive a motion to dismiss simply by failing to 

attach a dispositive document upon which it relied.” Weiner, 108 F.3d at 

89. The Sixth Circuit adopted the Seventh Circuit’s approach in such 

situations and considers “[d]ocuments that a defendant attaches to a 

motion to dismiss [] part of the pleadings if they are referred to in the 

plaintiff’s complaint and are central to her claim.” Id. (quoting Venture 

Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 

1993)); see also Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 441 (6th 

Cir. 2012). Additionally, if such an attached document is “inconsistent 

with the allegations of the complaint, the exhibit controls.” Carrier 

Corp., 673 F.3d at 441 (quoting Mengel Co. v. Nashville Paper Prod. & 

Specialty Workers Union, No. 513, 108 F.3d 86, 89 (6th Cir. 1955)). 

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The Sixth Circuit has cautioned against using statements in an 

attachment to trump alleged facts in the pleadings when it is “not a 

legally dispositive document,” id. at 441-42, but here the attachment is 

a final decision—and a reconsideration affirming that decision by a 

federal court—involving many of the same facts at issue in this matter. 

Therefore, the Court holds that the facts found by the California court 

and holdings made therein that contradict assertions in the pleadings 

are to control over the pleadings. 

b. Claims and Issues Against the Cognitive Code 

Defendants Precluded by the California Decision 

Claims raised in the above-captioned matter will be dismissed for 

lack of subject-matter jurisdiction if they are precluded by the 

California Case. To reiterate, the required elements for preclusion are: 

(1) a final decision on the merits by a court of competent 

jurisdiction; (2) a subsequent action between the same 

parties or their “privies”; (3) an issue in the subsequent 

action which was litigated or which should have been 

litigated in the prior action; and (4) an identity of the causes 

of action. 

Browning, 283 F.3d at 771-72. The first element has been satisfied by 

the discussion in sections I.A and II.B.1.a supra. 

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 As for the second element, the California Case was brought by 

plaintiffs Odish and Cranbrook Capital Consulting8 against the 

Cognitive Code defendants (Cognitive Code Corp., Leslie Spring, Mimi 

Chen, John Chen, and Salvatore Difazio). Therefore, the second element 

is satisfied regarding claims brought here against these defendants. 

 Turning next to the fourth element, that “the claims arose out of 

the same transaction or series of transactions or whether the claims 

arose out of the same core of operative facts,” Id. at 773-74, the Court 

finds that plaintiffs’ amended complaint largely addresses the same 

transactions and arises from the same core operative facts as the 

California Case. First, the California court found voidable the series of 

so-called agreements dated between March and April 2011—the LOI, 

Addendum, April 10 email, and April 17 Agreement—which are all 

central to plaintiffs’ claims here against the Cognitive Code defendants. 

Second, the California court also held that since those four agreements 

were voidable, all claims plaintiffs asserted that arose from those 

 

8 The third plaintiff in the California Case, John Bourbeau, has since 

appeared as a defendant in two of the cases brought by plaintiffs in this District. 

See note 2 supra. Since he is not a party to this matter, the Court does not address 

preclusion with regard to him. 

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agreements were without merit. Third, the California court 

reconsidered its decision less than two months after plaintiffs filed this 

matter and just one month before plaintiffs filed their amended 

complaint, and rejected plaintiffs’ “newly discovered evidence” 

submitted on June 16, 2015, in support of their Rule 60 motion as 

containing neither new information nor information that was 

inaccessible to plaintiffs earlier in the litigation. These findings by the 

California court demonstrate that the core of operative facts 

surrounding the transactions between plaintiffs and the Cognitive Code 

defendants were duly presented and fully litigated, and that even after

plaintiffs filed this matter, the California court held that there were no 

new or newly discovered facts that warranted a different outcome. In 

other words, in so far as this case seeks redress for transactions 

between plaintiffs and Cognitive Code between early 2011 and July 

2015, when the California court issued its opinion on the Rule 60 

motion, there is an identity of the causes of action between this matter 

and the California Case for the purposes of claim preclusion. 

 Finally, for similar reasons, the third element for preclusion—the 

presence of issues, which were or should have been litigated in the prior 

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action—is also satisfied. In this matter, as far as the Court can discern 

from plaintiffs’ amended complaint and their briefing in opposition to 

defendants’ motion, their claims against the Cognitive Code defendants 

arise from their assertions that Odish is a shareholder in Cognitive 

Code and has been wrongly denied his entitlements derived from that 

status and other promises made by defendants. Furthermore, even 

concerns related to patents owned by or controlled by defendants were 

addressed in the California Case (see Def. Mem. Ex. 3 at 3); therefore, 

any claim derived from defendants’ patents should have been raised in 

the California Case as well. 

 The analysis regarding which issues are precluded by the 

California Case further defines the scope of what is precluded here. To 

reiterate, the elements of issue preclusion are: 

(1) the question in this case is the same as the one raised in 

the earlier litigation; (2) the answer given in the earlier 

litigation was necessary to the decision; (3) that decision was 

a final judgment on the merits; and (4) the affected party 

had a “full and fair opportunity” to litigate the issue in the 

prior litigation. 

United Technologies Corp., 782 F.3d at 725. Having already established 

that element three is satisfied, element four is also satisfied, as 

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plaintiffs’ issues were subjected to cross-claims for summary judgment, 

as well as a motion to reconsider. Regarding the first two elements, the 

questions at the heart of plaintiffs’ claims here are the same as the 

claims adjudicated by the California court: namely, did the alleged 

transactions and agreements between plaintiffs and the Cognitive Code 

defendants dating from March and April 2011 entitle Odish to be a 

shareholder, employee, or board member of defendants’ corporation, and 

did those alleged agreements provide him with decision-making 

authority in the company. The California court answered these 

questions unequivocally, “no”; therefore, any claims in the present 

matter are precluded if they require an answer different from the 

California court’s to any of those questions. 

Plaintiffs’ efforts to oppose the preclusive effect of the California 

Case are unavailing. First, their invocation of Fed. R. Civ. P. 15, which 

governs amendments of pleadings, is inapplicable because preclusion 

applies if the issues were raised or could have been raised in the prior 

litigation, and attaching new legal theories to the core operative facts 

does not cure their preclusion problem. United Technologies Corp., 782 

F.3d at 728-29 (“Issue preclusion does not disappear merely because the 

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33 

losing party puts on a better case the second time around.”) (citing 

cases). Second, plaintiffs argue that their claims regarding 

whistleblower retaliation are not subject to preclusion, but they fail to 

explain how they have whistleblower standing, aside from the 

precluded reliance on the voidable agreements, as an employee under 

18 U.S.C. § 1514A, or the expanded definition held by Lawson, 134 S. 

Ct. at 1176. Third, plaintiffs’ representations in their documents filed 

since the California court’s July 2015 denial of their Rule 60 motion are 

particularly disingenuous as they persist in asserting rights and 

entitlements flatly rejected by the California court, rather than 

distinguishing for this Court which of their assertions stands 

independent from the rulings in the California Case. (See, e.g. Pl. 

Oppos. Mem. 4 (asserting Odish’s status as “an employee, Shareholder 

and Board Member of Cognitive Code in March 2011” and his “dual 

signature and review rights”); Am. Compl. ¶¶ 15-16 (asserting the 

same).) 

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c. Plaintiffs’ Causes of Action Against the Cognitive 

Code Defendants 

Plaintiffs raise twelve “causes of action” in their complaint, which 

the Court addresses in turn for subject-matter jurisdiction. 

1. “Respondeat Superior/Agency” against all defendants: 

This is styled as a cause of action, but it merely states the 

association of the individually named defendants to their corporate 

employers and is not otherwise a justiciable claim, as it specifies no 

injury attributable to defendants that the Court could redress. The 

Court lacks subject-matter jurisdiction over this “claim”. 

2. Declaratory Judgment to Seat a Grand Jury against 

Defendants Northrop Grumman, Nuance, Cognitive Code, 

and Apple; 

Fed. R. Crim. P. 6 governs grand juries, and that rule only 

pertains to criminal proceedings (id. Rule 1), which this is not. The 

above-captioned matter is not the correct form for seeking an 

indictment or otherwise prosecuting criminal matters. The Court lacks 

subject-matter jurisdiction over this “claim”. 

3. Violation of 42 U.S.C. § 1985 against the Cognitive Code 

Defendants, Rosen, and “their employees, agents and coconspirators” for preventing FBI and SEC agents from 

conducting an investigation; 

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Section 1985(1) prohibits “two or more persons” to act with “force, 

intimidation, or threat” to interfere with the ability of federal officers to 

carry out their duties. And while § 1985 is to be construed to have broad 

applicability, see, e.g., Windsor v. The Tennessean, 719 F.2d 155, 161 

(6th Cir. 1983), a plaintiff must be an individual who holds “any office, 

trust, or place of confidence under the United States” to bring a claim 

under § 1985(1) regarding impediments to her ability to carry out her 

duties. Lewis v. News-Press & Gazette Co., 782 F. Supp. 1338, 1342 & 

n.5 (W.D. Mo. 1992) (discussing cases). Plaintiffs have not alleged that 

they hold such an office in the United States; therefore, they lack 

standing on this claim and the Court lacks subject-matter jurisdiction. 

4. Duplicative of Count 3; 

The Court lacks subject-matter jurisdiction for the same reasons 

as in Count 3. 

5. Violation of 42 U.S.C. § 1983 against the same defendants as 

Counts 3 and 4 for an unspecified constitutional or statutory 

violation; 

Claims brought under § 1983 must show “1) the deprivation of a 

right secured by the Constitution or laws of the United States and 2) 

[that] the deprivation was caused by a person acting under color of state 

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36 

law.” St. v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). A 

cognizable claim under § 1983 brought against a private entity must 

show that such a defendant was “exercis[ing] powers which are 

traditionally exclusively reserved to the state.” Id. (quoting Ellison v. 

Garbarino, 48 F. 3d 192, 195 (6th Cir. 1995)). Plaintiffs have asserted 

neither of these two prongs to set forth a claim under § 1983; therefore, 

there is no cognizable claim, leaving the Court without subject-matter 

jurisdiction on this claim. 

6. Fraud against the Cognitive Code defendants and Rosen for 

“[a]ll of the misrepresentations and omissions detailed 

above. . . .”; 

As explained in section II.B.1.a-b supra, the California court held 

that claims dependent on the transactions between plaintiffs and the 

Cognitive Code defendants from March and April 2011 were voidable. 

Here, plaintiffs claim that their assertions of “fraud, misrepresentation, 

and [] omission” stem from implied contractual and contractual 

relationships with defendants. (Am. Compl. ¶ 900.) Such issues are 

precluded; therefore the Court lacks subject-matter jurisdiction with 

regard to the Cognitive Code defendants. 

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7. [Cause of Action 15] Constructive Trust related to the 

Property and Securities Alleged by Plaintiffs; 

Plaintiffs assert claims on property—presumably stock, options, 

and revenues from patents—“they were unlawfully stripped of by 

Defendants.” (Am. Compl. ¶ 916.) These claims are precluded because 

the California court already determined that plaintiffs’ claims to such 

property are void. The Court lacks subject-matter jurisdiction for this 

claim. 

8. [Cause of Action 16] Damages against all defendants for all 

actions alleged; 

Plaintiffs seek damages arising from representations “made 

intentionally, willfully and maliciously and have caused Plaintiff to 

suffer humiliation, outrage and indignation.” (Am. Compl. 922.) The 

Court cannot discern what concrete and particularized injury is 

described by this cause of action, and in so far as defendants’ alleged 

actions are grounded in the core of operative facts adjudicated by the 

California court, they are precluded. The Court lacks subject-matter 

jurisdiction over this “claim”. 

9. [Cause of Action 17] Violation of the Sherman Anti-Trust 

Act, 15 U.S.C. §§ 1 et seq. against defendants Apple, 

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38 

Nuance, Northrop Grumman, “and their agents and 

employees”; 

As far as the Court can glean from plaintiffs’ amended complaint, 

their injury from any anti-competitive actions by defendants is 

predicated upon Odish being a shareholder at Cognitive Code. Any 

cause of action predicated on such a fact is precluded by the California 

Court’s holdings. The Court lacks subject-matter jurisdiction over 

Cause of Action 17. 

10.[Cause of Action 25] Violations of § 20(a) of the Securities 

Exchange Act of 1934, 15 U.S.C. §§ 78a et seq. against the 

individual defendants and Northrop Grumman; 

Plaintiffs allege here that defendants “[m]ade untrue statements 

of a material fact or omitted to state a material fact . . . or . . . [e]ngaged 

in acts, practices and a course of business that operated as a fraud and 

deceit upon Plaintiffs in connection with their purchase and sale of 

Cognitive Code Corporation Securities.” (Am. Compl. ¶ 929.) Such 

allegations are precluded by the California court’s holdings that 

plaintiffs’ agreements with defendants were voidable, because that 

court’s determination is an essential fact underlying the validity of 

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these claims. The Court therefore lacks subject-matter jurisdiction on 

this count as well. 

11.[unnumbered] Violation of Whistleblower Protection for 

Employees of Publicly Traded Companies, 18 U.S.C. § 

1514A against defendants Cognitive Code, Northrop 

Grumman, Apple, and Nuance “and their agents”; 

As explained in section II.B.1.b supra, plaintiffs have not 

explained how they have whistleblower standing without reliance on 

issues precluded by the California court’s ruling that the March and 

April 2011 agreements between Odish and the Cognitive Code 

defendants are voidable. The Court lacks subject-matter jurisdiction for 

this claim against the Cognitive Code defendants. 

12.[unnumbered] Violation of 35 U.S.C. § 297, Patent 

Manipulation, against the Cognitive Code defendants. 

The Patent Code provides, in part, that an individual “who enters 

into a contract with an invention promoter and who is found by a court 

to have been injured by any material false or fraudulent statement or 

representation” may recover for the actual damages or a statutory 

amount in a civil action against the invention promoter. 35 U.S.C. § 

297(b). Such a claim is predicated upon there being a valid contract 

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40 

regarding the patent in question, and the California court determined 

that plaintiffs did not have cognizable rights to any patents promoted 

by the Cognitive Code defendants. Therefore, a precluded issue 

underlies this claim, and the Court lacks subject-matter jurisdiction. 

In summation, the Court lacks subject-matter jurisdiction on each 

and every claim raised by plaintiffs in their amended complaint against 

the Cognitive Code defendants and hereby grants defendants’ motion to 

dismiss under Rule 12(b)(1). 

2. The Cognitive Code Defendants’ Rule 12(b)(6) 

Motion 

Since the Court lacks subject-matter jurisdiction on all claims 

brought against the Cognitive Code defendants, the Cognitive Code 

defendants are dismissed and the analysis need go no further. However, 

even if the claims were not dismissed for lack of subject-matter 

jurisdiction, the Court also finds that, for the same reasons explained in 

section II.B.1.c supra, plaintiffs have in all cases failed to state a claim 

upon which relief can be granted, and the claims against the Cognitive 

Code defendants would also be dismissed under Rule 12(b)(6). 

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3. Defendants’ Rule 41(a)(1)(B) Motion 

Fed. R. Civ. P. 41(a)(1)(B) provides an alternative avenue to 

address the preclusive nature, not of matters decided by a previous 

court, but rather of matters previously raised and voluntarily dismissed 

by plaintiffs. In the interests of judicial economy, the Court briefly 

addresses the applicability of Rule 41(a)(1)(B)—the two-dismissal rule—

to the nine cases plaintiffs have filed against many of the same 

defendants in this District in less than three years. 

The two-dismissal rule operates when there is a second voluntary 

dismissal of the same claim against defendants who “are the same, 

substantially the same, or in privity in both actions.” Wright & Moore, 9 

Fed. Prac. & Proc. Civ. § 2368 (3d ed. 1997); Evans, 602 F. App’x at 615. 

Here, plaintiffs voluntarily dismissed a prior case in this district, Odish 

5 (see note 1 supra), against the Cognitive Code defendants, Apple, Inc. 

and John Bourbeau on June 22 and June 25, 2014, by notices of 

voluntary dismissal prior to service. Plaintiffs voluntarily dismissed two 

other lawsuits in this district. Odish 6 was voluntarily dismissed on 

November 4, 2014, on the day following an order to show cause why the 

case should not be dismissed for failure to prosecute. However, that case 

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42 

was brought against different defendants than those in the present 

case, Odish 8, or Odish 5. By contrast, Odish 4 was a qui tam action 

brought against the Cognitive Code defendants, along with defendants 

to the current action, Northrop Grumman Corp., Nuance 

Communications, Inc., and Rosen, and it was dismissed voluntarily on 

December 3, 2014, also on the heels of an order to show cause and prior 

to service. (Case No. 14-cv-10736, Dkt. 31-32.) 

The question before the Court, then, is whether this second 

voluntary dismissal of a qui tam action against the same Cognitive 

Code defendants as in Odish 5 qualifies under Rule 41(a)(1)(B) because 

it was “based on or include[ed] the same claim.” The Sixth Circuit has 

used the phrase “based on the same transaction” to explain the meaning 

of “same claim” as used in Rule 41(a)(1)(B). Evans, 602 F. App’x at 614; 

Demsey v. Demsey, 488 F. App’x 1, 3 (6th Cir. 2012) (citing Anderson v. 

Aon Corp., 614 F.3d 361, 365 (7th Cir. 2010); Randall v. Merrill Lynch,

820 F.2d 1317, 1318–19 (D.C.Cir.1987)). Such an interpretation 

comports with the Second Restatement of Judgments, which explains, 

in the context of effects of a judgment, that “the claim extinguished 

includes all rights of the plaintiff to remedies against the defendant 

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43 

with respect to all or any part of the transaction, or series of connected 

transactions, out of which the action arose.” Restatement (Second) of 

Judgments § 24 (1982). 

Although the types and causes of action in Odish 4 and Odish 5 

are distinct—a qui tam case asserting injury on behalf of the federal 

government in the case of Odish 4, and a host of federal statutory as 

well as common-law claims in Odish 5—the two cases recount 

substantially similar transactions between plaintiffs and defendants. 

Both rely on the narrative described in section I supra regarding the 

relationship between plaintiffs and the Cognitive Code defendants, and 

the alleged subsequent false dealings between the Cognitive Code 

defendants and various government contractors over patents tied to the 

Siri and Silvia technologies. (No. 14-cv-12382, Dkt. 1; No. 14-cv-10736, 

Dkt. 1). 

While the Court finds there is a sufficient basis to determine that 

Rule 41(a)(1)(B) applies to Odish 4 and Odish 5, with the voluntary 

dismissal of Odish 4 on December 3, 2014 acting as an adjudication on 

the merits, the Court will not rule on this basis. Seeing as the Court 

lacks jurisdiction to consider the merits of the present matter, the 

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44 

preclusive nature of these prior cases and claims does not influence the 

outcome here. In any event, such a determination would either be an 

additional, redundant reason the Court lacks subject-matter 

jurisdiction, or an inappropriate consideration of the merits. 

III. IMPACT OF CLAIM PRECLUSION ON SUBJECT-MATTER 

JURISDICTION REGARDING OTHER DEFENDANTS 

From the analysis in section II.B.1 supra of claims and issues 

precluded by the California court’s litigation, the Court turns to the 

question of to what extent these holdings must direct a dismissal for 

lack of subject-matter jurisdiction under Rule 12(h)(3). The remaining 

defendants have not been served in this case, nor have they appeared 

on their own accord, as the Cognitive Code defendants, to accept the 

case and oppose the claims against them. Nonetheless, under Rule 

12(h)(3), “[i]f the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” 

The Court declines to dismiss this action against the remaining 

parties for lack of subject-matter jurisdiction. First, there is no motion 

before the Court setting forth the facts and legal arguments to 

challenge subject-matter jurisdiction. In order to find that any of the 

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California court’s holdings or findings of facts acted to preclude claims 

raised here against the remaining defendants, there would need to be 

showing that these remaining defendants were in privity with the 

Cognitive Code defendants such that the California Case had served as 

an adjudication with regard to any claims against them as well. The 

Court finds that a more prudent course of action regarding the 

remaining defendants is to allow plaintiffs an opportunity to amend 

their complaint to more clearly articulate the justiciable claims that 

may still lie against these defendants. Nonetheless, should a second 

amended complaint still be “so attenuated and insubstantial as to be 

absolutely devoid of merit,” the Court will not hesitate to dismiss the 

case sua sponte against the remaining defendants as well. Keeran v. 

Office of Pers. Mgmt., 827 F.2d 770 (6th Cir. 1987) (quoting Hagans v. 

Lavine, 415 U.S. 528, 536-7 (1974)). 

IV. PLAINTIFF’S REQUEST TO STRIKE AND MOTION FOR 

LEAVE TO AMEND 

Plaintiffs filed their complaint in this matter on June 1, 2015, and 

filed an amended complaint on August 24, 2015. (Dkt. 1, 5). On August 

31, 2015, five days after defendants filed their motion, plaintiffs sought 

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to strike their amended complaint through document styled as a “Notice 

of Errata and Privileged Information in First Amended Complaint: 

Request for Removal of Document and it Being Struck from the Record.” 

(Dkt. 12). Plaintiffs’ counsel (Odish) explained that their first amended 

complaint should “be stricken from the record on basis of innocent 

Errata and Privileged and potentially prejudicial information.” (Id.). On 

September 2, 2015, plaintiffs submitted their motion for leave to file a 

second amended complaint, but without attaching the proposed 

document as required by E.D. Mich. L.R. 15.1. (Dkt. 16). Defendants 

oppose plaintiffs’ motion. (Dkt. 28). 

Amendment of pleadings is governed by Fed. R. Civ. P. 15, which 

states in part that “[a] party may amend its pleading once as a matter 

of course within: (A) 21 days of serving it, or (B) . . . 21 days after 

service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” 

Fed. R. Civ. P. 15(a)(1). Other amendments may be made “only with the 

opposing party’s written consent or the court’s leave.” Id. at (a)(2). As 

Odish has already learned from the order issued by Hon. Paul J. 

Komives, U.S. Magistrate Judge, in Odish 2, “Rule 15(a)(1) does not 

provide for a right to file a second amended pleading under any 

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circumstances.” Odish et al. v. Peregrine Semiconductor, Inc. et al., No. 

13-cv-14026, Dkt. 49, E.D. Mich. Nov. 17, 2014, at 1 (quoting Stuart v. 

Fisher, No. 1:02-cv-00020, 2013 WL 4591005, at *5 (D. Idaho Aug. 27, 

2013); citing Hurst v. Powell, No. 7:13-CV-1, 2013 WL 4763743, at *2 

(M.D. Ga. Sept. 4, 2013)). 

Rule 15(a)’s mandate “is to be heeded”—that leave to amend “shall 

be freely given when justice so requires.” Humantech, Inc. v. 

Caterpillar, Inc., No. 11-14988, 2014 WL 346010, at *1 (E.D. Mich. Jan. 

30, 2014) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The Sixth 

Circuit has reinforced the “liberality in allowing amendments to a 

complaint.” Janikowski v. Bendix Corp., 823 F.2d 945, 951 (6th Cir. 

1987). If the motion is to be denied, “there must be ‘at least some 

significant showing of prejudice to the opponent.’” Id. (quoting Moore v. 

City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986). “In the absence of 

any apparent or declared reason—such as undue delay, bad faith, or 

dilatory motive on the part of the movant, repeated failure to cure 

deficiencies by amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowance of the amendment, futility of the 

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amendment, etc.—the leave sought should, as the rules require, be 

‘freely given.’” Foman, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)). 

Here, to grant plaintiffs leave to amend—at least with regard to 

the Cognitive Code defendants—would be to turn a blind eye to their 

well-documented (see notes 1-2 supra) pattern of ineffective lawsuits 

pressing increasingly well-worn claims, at least an essential subset of 

which have now reached final adjudication through the California Case. 

Moreover, since the Cognitive Code defendants already prevailed on 

summary judgment before the California court regarding the 

transactions at the heart of plaintiffs’ complaint, and no matter how 

plaintiffs would seek to rename their claims and recast the facts, there 

is no plausible objective expectation that they can defeat the substantial 

preclusive effect of the California court’s ruling. See Dubuc v. Green Oak 

Twp., 312 F.3d 736, 751 (6th Cir. 2002) (holding that district court did 

not abuse discretion to deny leave to amend a second time in part 

because the claims were precluded by a prior decision). 

Indeed, the California court’s specific finding in its July 2015 

decision on plaintiffs’ Rule 60 motion, that there were no new facts or 

facts that could not have been discovered with diligence that would 

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change the outcome of its ruling, is particularly compelling here. 

Plaintiffs filed their amended complaint a month after the California 

court issued its Rule 60 opinion, and they had not yet served any 

defendants when they issued their amended complaint; therefore, they 

had ample opportunity, and were under no time pressure, to amend 

their complaint in a way that carefully articulated the claims not 

adjudicated by the California court and independent of fact findings 

made by that court. Moreover, the inclusion in the amended complaint 

of allegations directly contradicted by the California court’s rulings is at 

best a gross oversight and at worst a deliberate misrepresentation to 

the Court in violation of Rule 11. Should plaintiffs prevail before the 

Ninth Circuit on their appeal pending in the California Case, the 

impact of the two-strike rule as discussed in section II.B.3 supra would 

still significantly curtail their ability to raise issues not precluded by 

rule 41(a)(1)(B). 

Additionally, the Court understands that plaintiffs may have 

failed to include their second amended complaint due to a 

misunderstanding with the Court. (Dkt. 16.) However, for the reasons 

provided, plaintiffs cannot cure the jurisdictional problems of their 

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claims against the Cognitive Code defendants; therefore, this incident of 

misunderstanding does not otherwise persuade the Court to grant leave 

to amend the complaint against these defendants. 

As for the claims against the remaining defendants, while there 

may be a colorable avenue for the Court to identify the privity alleged 

by plaintiffs between the remaining defendants and the Cognitive Code 

defendants, the standard applied in such a decision requires finding 

that “the allegations of a complaint are totally implausible, attenuated, 

unsubstantial, frivolous, devoid of merit, or no longer open to 

discussion.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (citing 

Hagans v. Lavine, 415 U.S. 528, 536–37 (1974)). This may not be an 

impossible hurdle with plaintiffs’ claims here, but at this stage of the 

litigation—when the remaining defendants have not filed their 

appearance let alone moved to dismiss the matter—a sua sponte

dismissal here would not be “in accordance with our traditional 

adversarial system of justice because [it] cast[s] the district court in the 

role of ‘a proponent rather than an independent entity’ . . . [is] unfair to 

the litigants and ultimately waste[s], rather than save[s] judicial 

resources.” Tingler v. Marshall, 716 F.2d 1109, 1111 (6th Cir. 1983), 

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abrogated by statute on other grounds, (quoting Franklin v. State of 

Oregon, State Welfare Division, 662 F.2d 1337, 1342 (9th Cir. 1981)). 

Therefore, in the interests of preserving the adversarial process, 

the Court grants plaintiffs leave to amend their complaint. However, 

given the extensive impact of claim and issue preclusion here as well as 

the significant problems in form and content in the first amended 

complaint, this leave is granted subject to the following conditions: 

1. There can be no factual allegations in the amended 

pleadings that contradict this ruling, contradict the final 

adjudication of the California Case, or rely on answers to 

questions that contradict the California court’s rulings or 

this ruling. 

2. Plaintiffs may allege no claims against the Cognitive Code 

defendants, as they are dismissed from this case. 

3. Plaintiffs may not exceed twenty pages in filing their second 

amended complaint, and these twenty pages must otherwise 

entirely comport with L.R. 5.1 governing the filing of papers 

in this Court. 

Failure to abide by any of the above conditions will constitute a 

violation of the Court’s express order. 

V. SANCTIONS 

Defendants have also moved the Court to impose sanctions on 

plaintiffs. In particular, they move the Court to restrict plaintiffs’ 

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ability to file future lawsuits in this District. (Def. Mem. 21-24.) The 

Court deems defendants’ motion to be a motion under Rule 11; however, 

Rule 11(c)(2) requires that such motions “be made separately from any 

other motion. . . .” The Court strikes this portion of defendants’ motion 

as to form, and separately issues an order pursuant to Rule 11(c)(3) for 

plaintiffs to show cause. 

The Court also hereby lifts the ban imposed by the order of 

October 8, 2015 on substantive filings in this matter. 

IT IS SO ORDERED. 

Dated: October 28, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on October 28, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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