NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0040n.06

No. 19-3722

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KAREN CHONGAH HAN,

Plaintiff-Appellant,

v.

HANKOOK TIRE CO., LTD.,

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE 

NORTHERN DISTRICT OF 

OHIO

BEFORE: SUHRHEINRICH, DONALD, and MURPHY, Circuit Judges. 

SUHRHEINRICH, Circuit Judge. This is the second time that Karen Han has filed the 

present claims against Hankook Tire Company. In the first case, Han brought her claims jointly 

with Peninsula Asset Management, a company she owned that was registered in the Cayman 

Islands. When that case was filed, no one noticed that the presence of alien companies on both 

sides of the dispute (Hankook is a South Korean entity) deprived the federal court of diversity 

jurisdiction. That jurisdictional defect became apparent only after the court granted Hankook’s 

summary judgment motion and Han appealed. To preserve its summary judgment win, Hankook 

argued that the court could dismiss Peninsula and retain jurisdiction over Han’s claims. Han 

objected to that proposal, contending that Peninsula was “indispensable” to the case. The court 

agreed with Han and dismissed the first case for lack of subject-matter jurisdiction.

When Han refiled her claims against Hankook in the present case, she purported to pursue 

them individually and as the “real party in interest” for Peninsula. Finding this assertion to be 
No. 19-3722, Han v. Hankook Tire Co., Ltd.

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inconsistent with her prior representation that Peninsula was indispensable, the district judge 

applied the doctrine of judicial estoppel and dismissed the case with prejudice. 

Han argues that the district judge erred because her present claims are not inconsistent with 

the stance she took in the prior case. She also contends that, even if judicial estoppel applies, the 

court should have dismissed the matter without prejudice. Because the district judge properly 

applied judicial estoppel to dismiss Han’s claims with prejudice, we affirm. 

I.

In 2004, Karen Han and Peninsula Asset Management (Cayman) Ltd. (a Cayman Islands

company owned entirely by Han) filed a lawsuit in the Northern District of Ohio claiming that 

Hankook Tire Company, Ltd. (a South Korean company) breached a contract and committed fraud. 

The claims arose from a business relationship between Peninsula and Hankook’s subsidiary, Ocean 

Capital Investment Limited. In a lengthy opinion, the district court granted summary judgment in 

Hankook’s favor. Memorandum Opinion, Peninsula Asset Mgmt. (Cayman) Ltd. v. Hankook Tire 

Co., No. 5:04-cv-1153 (N.D. Ohio, Oct. 13, 2006), ECF No. 184.

After they lost on summary judgment, Han and Peninsula appealed to this court. Without 

reaching the merits of the appeal, we determined that “[b]ecause there are alien corporations on 

both sides of the controversy, this case lacks the complete diversity required for a federal court to 

exercise diversity jurisdiction under [28 U.S.C.] § 1332(a)(2).” Peninsula Asset Mgmt. (Cayman) 

Ltd. v. Hankook Tire Co., 509 F.3d 271, 272 (6th Cir. 2007). Accordingly, we remanded the case 

“for consideration of the need to dismiss for lack of subject matter jurisdiction.” Id. at 273. 

On remand, Hankook argued that, although Peninsula was non-diverse, the court could 

retain jurisdiction over Han’s claims because Peninsula was a “nominal” or “dispensable” party. 

Motion to Dismiss Dispensable Party, Peninsula Asset Mgmt. (Cayman) Ltd. v. Hankook Tire Co., 
No. 19-3722, Han v. Hankook Tire Co., Ltd.

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No. 5:04-cv-1153 (N.D. Ohio, Dec. 20, 2007), ECF No. 215, at ID# 8670. In support, Hankook 

asserted that Peninsula had ceased doing business and “had been wrapped up” before the lawsuit 

was filed. Id. at ID# 8671. As Hankook noted, a court has the authority to dismiss a dispensable 

party to preserve diversity jurisdiction. Id. (citing Fed. R. Civ. P. 21; Newman-Green, Inc. v. 

Alfonzo-Larrain, 490 U.S. 826, 832 (1989)).

Facing a loss on the merits, Han contended that Peninsula was “indispensable” and

deprived the court of diversity jurisdiction. Response in Opposition to Motion to Dismiss 

Dispensable Party, Peninsula Asset Mgmt. (Cayman) Ltd. v. Hankook Tire Co., No. 5:04-cv-1153 

(N.D. Ohio, Jan. 2, 2008), ECF No. 216, at ID# 8683. According to Han, Peninsula was “an 

essential party in Plaintiffs’ main claim—breach of contract” because that claim was “based on 

the contract between Peninsula and [Hankook’s subsidiary] Ocean Capital Investment (L) 

Limited.” Id. at ID# 8683–64. Han made clear that, although Peninsula was “dormant businesswise,” it “exist[ed] for [the purposes of] this lawsuit,” i.e., the 2004 case. Id. at ID# 8682. 

The district judge agreed with Han and “reject[ed] the notion that Peninsula is a dispensible 

[sic] or nominal party.” Memorandum Opinion and Order, Peninsula Asset Mgmt. (Cayman) Ltd.

v. Hankook Tire Co., No. 5:04-cv-1153 (N.D. Ohio, Feb. 1, 2008), ECF No. 219, at ID# 8703. 

Because Peninsula was non-diverse and indispensable, the court dismissed the 2004 case for lack 

of jurisdiction. Id.

Nearly ten years later, Han initiated the present case by refiling her claims against 

Hankook. In the present complaint, Han asserts her claims both individually and “as the real party 

in interest” for Peninsula, which according to Han is now “defunct.” Id., ID# 3.

As the district court was analyzing Hankook’s motion to dismiss, it discovered that Han 

avoided summary judgment in the prior case by arguing that her claims could not proceed without 
No. 19-3722, Han v. Hankook Tire Co., Ltd.

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Peninsula. Based on that fact, the district judge concluded that “allowing Han to proceed on this 

action without the presence of Peninsula would give Han the unfair advantage of essentially having 

a second bite of the apple.” Id. To prevent that “unseemly maneuver,” the court applied the 

doctrine of judicial estoppel and dismissed Han’s claims with prejudice. Id. at 279. Han filed a 

motion for reconsideration, which the court denied. 

In this appeal, Han challenges the district court’s application of judicial estoppel to dismiss 

her claims. We review questions of judicial estoppel de novo. In re Ohio Execution Protocol, 860 

F.3d 881, 891 (6th Cir. 2017) (en banc).

II.

When a party convinces a court to take a certain position, and later advocates an 

inconsistent position, the court can apply the doctrine of judicial estoppel to prevent that party 

from playing “fast and loose” with the courts. Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598–

99 (6th Cir. 1982). There is no set formula for assessing when judicial estoppel should apply. New 

Hampshire v. Maine, 532 U.S. 742, 750 (2001). However, courts usually focus on three factors. 

First, “a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id. Second, 

a court should review “whether the party has succeeded in persuading a court to accept that party’s 

earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would 

create ‘the perception that either the first or the second court was misled.’” Id. (quoting Edwards, 

690 F.2d at 599). Finally, the court should evaluate whether the party advancing an inconsistent 

position would gain an unfair advantage if allowed to proceed with that argument. Id. at 751.

This case meets the first factor: Han has advocated inconsistent positions. When the prior 

case was remanded to consider whether Peninsula’s presence deprived the court of diversity 

jurisdiction, Han argued that Peninsula was “indispensable” because she could not pursue the 
No. 19-3722, Han v. Hankook Tire Co., Ltd.

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contract claims on Peninsula’s behalf. Now, however, Han asserts that she is the “real party in 

interest” for Peninsula and can litigate the contract claims on its behalf. 

Despite Han’s argument to the contrary, the fact that Peninsula is now “defunct” does not 

harmonize her contradictory positions. When Hankook argued in the prior case that Peninsula was 

no longer in business and therefore “nominal,” Han argued that Peninsula was “essential” to the 

contract claim and continued to exist for the purposes of the lawsuit, even though it was already 

“dormant business-wise.” She now asserts that the simple lapse of Peninsula’s registration 

automatically (without any formal transfer of assets or assignment of contract rights) made her the 

“real party in interest” to Peninsula’s claims. If that were true, Peninsula should have been 

considered nominal in the first case, as Hankook contended.

The second factor of the estoppel test is also met. The district judge in the prior case 

concluded that Peninsula was indispensable and dismissed the case for lack of jurisdiction. If Han 

prevailed on her present claims, it would create the impression that the court had been misled, 

either in the prior case or the present one. 

The third factor is satisfied as well. Han would gain an unfair advantage from being 

permitted to pursue her claims as the real party in interest for Peninsula. The claims that form the 

basis of Han’s present complaint lost on summary judgment in 2006. To circumvent that result, 

Han took the unusual step of arguing that the court in which she filed her complaint lacked 

jurisdiction. If she had argued at that time that she was the “real party in interest” for Peninsula, 

it is likely that the court would have dismissed Peninsula, retained jurisdiction over Han’s claims, 

and reaffirmed the grant of Hankook’s summary judgment motion. 

Because Han previously disavowed the capacity to bring the claims she sets out in the 

present complaint, dismissal with prejudice is the only adequate sanction. See Chambers v. 
No. 19-3722, Han v. Hankook Tire Co., Ltd.

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NASCO, Inc., 501 U.S. 32, 45 (1991) (observing that “outright dismissal of a lawsuit,” although it 

is a “particularly severe sanction” is “within the court’s discretion”). To sidestep the summaryjudgment loss in the first case, Han argued that she (1) lacked the capacity to pursue claims on 

behalf of Peninsula and (2) had no individual claims that could be adjudicated without Peninsula. 

See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 572 (2004) (holding that a party is 

dispensable if its “interests are severable and a decree without prejudice to their rights may be 

made” (quoting Horn v. Lockhart, 84 U.S. 570, 579 (1873))). Those representations fundamentally 

eviscerate Han’s present claims. 

Finally, to be clear, the district court did not dismiss the case for lack of jurisdiction. 

Contra Han’s Reply Brief at 12. The district court discussed whether judicial estoppel could be 

applied to questions of subject-matter jurisdiction, but only to distinguish the cases Han cited on 

that issue. As discussed above, the application of judicial estoppel in this case goes directly to the 

merits of Han’s claims.

III.

Therefore, we AFFIRM the district court’s dismissal of Han’s complaint with prejudice.