NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1159n.06 No. 11-3697 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

COSMI CHROME, I

NC.; 4136624 CANADA, I NC .; GOL D TOUCH, I

NC., Plaintiffs-Appellants,

v. S P E C T R A C H R O M E , L L C ; D A N I E L A

. M CL AUGHL I N; BROWN BROTH ERS CO L L I SI O N REPAI R CENTER, I

NC. ; J AMES HERBERT BROWN, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E N O R T H E R N D I S T R I C T O F O H I O

BEFORE: CLAY and WHIT E, Circuit Judges; HOOD, District Judge. * HELE NE N . W HI TE , C ir c ui t J ud g e. Plaintiffs Cosmichrome, Inc., 4136624 Canada , Inc., and Gold Touch, Inc. (Plaintiffs), three corpor ations involved in the manufa cture or sale of spray -on chrome technolog y under the brand name Cosmichrome (Cosmichrome p ro du ct ), challeng e the district court’s dismi ssal of t heir complaint. We AFF I RM the di strict court’s dismi ssal insofar as it was based on a finding that it lacke d persona l jurisdiction over Def endants, VACATE the district

c o u r t’ s d is mi s sal insofar as it was enter ed with prejudice based on statute-of- limit ations g rounds, and REMAND for

entry of judg ment dismiss ing this ac tion without prejudice.

The Honora

ble J oseph M

. Ho od, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 11-3697

Cosmichrome, Inc . v. Spec tra Chrome, LL C I. This case cente rs on a dispute betwee n competitors in spray -on chrome technology , a plating sy stem designed to coat almost any surfa ce with a durable , metallic finish. In J uly 2009, Gold Touch and 4136624 Canada filed suit in Ohi o s t ate court (the state court) ag ainst, inter alia , Spectra Chrome, a F lorida-ba sed compa ny that marke ts a competingchrome product unde r its own name; Br own Br others Colli sion Repair Center, Inc. (B rown Br others), a Florida corpor ation that used to be a fre quent customer of Cosmichrome p ro duct but was later discovere d to have alleg ed ties to Spectra Chrome; and two Florida residents—a Br own Br others share holder and Spectra Chrome’s founder (collec tively , Def

endants). In their state-c o u rt complaint, Gold Touch and 4136624 Canada asser ted claims ag ainst Def endants under Ohio’s Dec eptive Trade Practice s Act, Ohio Rev. Code § 4165.02, and commonlaw claims for product disparag ement and defa mation based on alleg ati o n s th a t: (1) Spectra Chrome, in collusion with Br own Br others, attempted to pass off Cosmichrome-plated samples to prospec tive
customers as being sprayed with its own product; and (2) Spectra Chrome made false, defa matory , and misleading statements on its website about Cosmichrome product. In Fe bruar y 2010, the state

co u rt d i smissed the action on Def endants’ motion without prejudice based on a lack of persona l jurisdiction over De fenda nts. 1 One y ear later, in Fe bruar y 2011, Plaintiffs filed this action in the Norther n District of Ohio ag ainst Defe ndants, asser ting the same claims and nearly identical alleg ations that they had ra ised in state court, as well as a claim under section 45 of the L anham Act, 15 U.S.C. § 1127, for dece ptive Although the state court’s order does not state the basis for dismiss al, the parties ag ree that 1 the dismissal was based on a lack of persona l jurisdiction over Def endants.No. 11-3697

Cosmichrome, Inc . v. Spec tra Chrome, LL C and unfair competition. On April 22, 2011, Def endants moved to dismiss this action under Fe dera l 2 Rules of Civil Procedur e 12(b)( 2) and (6) for lack of persona l jurisdiction and failure to state a claim

on three alternate g round s : (1) collater al estoppel prec luded Plaintiffs from bring ing this action beca use the state court’s dismiss al of their prior action, which Def endants purported (and Plaintiffs do not dispute) was ba sed on a la ck of persona l jurisdiction in Ohio, was bindingin fede ral c ourt; (2) even if the state-c ourt decision did not have prec lusive eff ect in fede ral court with respe ct to the jurisdiction question, no persona l jurisdiction exis ts over any defe ndant in Ohio; and (3) if the court deter mines that pers o n al jurisdiction exis ts, Plaintiffs’ claims wer e time-barr ed on statute-oflimit ations g rounds. I t is undisputed that Plaintiffs’ opposition was due by May 23, 2011, but they failed to file one

. See N.D. Ohio L ocal Civ. R. 7.1(d). T hr e e d a y s a f te r Pl a in tif fs’ opposition was due, the district court g rante d Def endants’ motion, dis m i s s ed the action on all three g rounds raised by Def endants, and enter ed a separ ate dismiss al order pursuant to Fe dera l Rule of Civil Procedur e 58. See Cosmichrom e, Inc . v. Spec tra Chrome, LLC , 11-cv- 422 (N.D. Ohio May 26, 2011). Plaintiffs timely moved to amend or alter the judgme nt, pursuant to Fe dera l Rule of Civil Procedur e 59(e) , on the basis that the district court err ed in ruling that their claims wer e time-barr ed. In the l ast sentenc e of their m otion, Plaintiffs opined, wit hout further explanation, that “[s] ince the [c] ourt has deter mined that it does not have persona l jurisdiction over the De fenda nts, this case should be dismissed without prejudice or transfe rre d to

Section 45 of the L anham Act is the act’ s definitions a nd leg islative-intent provision. See 2 L anham Act, Pub. L

. No. 79-489, § 4 5 , 6 0 S tat. 443 (1946) (codifie d as amende d at 15 U.S.C. § 1127). In their opening appellate brie f, P laintiffs now assert that their L anham Act claim arises under section 43(a) , which is codified at 15 U.S.C. § 1125, based on Spectra Chrome’s alleg ed false desig nation of the orig in of its samples to prospective c ustomers.No. 11-3697

Cosmichrome, Inc . v. Spec tra Chrome, LL C the Middle District of Florida .” PI D 209–10 (R. 18). The district court denied Plaintiffs’ Rule 59(e) motion. This t imely

appea l followed. II. We revie w de novo a district court’s dismiss al for lack of persona l jurisdiction and for failure
to state claim. City of Monroe Emps. Ret. Sys. v. Br i d g est one Corp. , 399 F.3d 651, 664 (6th Cir. 2005). A plaintiff’ s failure to oppose di smissal in t he district cour t ordinarily

waives a n appellate challeng e, see, e.g. , Humphrey v. U.S. Attorney Gen.’ s Office , 279 F. App’x 328, 331 (6th Cir. 2008) (unpublished); Kusens v. Pascal Co. , 448 F.3d 349, 368 (6th Cir. 2006); W illiams v. W

CI Steel Co. , 170 F.3d 598, 607 (6th C i r. 1999) (per curiam), and raising an issue for the first time in a post-dismiss al Rule 59(e) motion does not proper ly prese rve a plaintiff’s arguments for appea l, see 3 Nat’l Ecological Found. v. Alexande r , 496 F.3d 466, 477 (6th Cir. 2007); Thurman v. Y ellow Freight Sys., Inc. , 97 F.3d 833, 835 (6th Cir. 199 6 ). Neve rtheless, the district court did not g rant Def endants’ motion to dismiss based on a finding that Plaintiffs had waived opposition to dismiss al. We exercise our discretion to consider Plaintiffs’ arg uments in this appea l to promote finality in this litigation as the issues require no further fac tual development and have been sufficie ntly prese nted for our revie w. See In re M

orris , 260 F.3d 654, 664 ( 6th Cir. 2001). On appea l, Plaintiffs abandon any challeng e to the district court’s dismiss al o f t heir complaint on the basis that it lacked pe rsonal jurisdiction over D efe ndants. Ther efor e, the district Plaintiffs do not challeng e the district cour t’s denial of the ir Rule 59(e) motion, ex pressly 3 abandon their L anham Act claim in their opening appellate brief, and raise no identifiable argument that their common-law product disparag ement claim is timely aside from ref ere ncing that claim in passing in an argument heading

. As a result, they have waived these issues for our revie w. See Fe d. R. App. P. 28(a) (9); United States v. Stewart , 628 F.3d 246, 256 (6th Cir. 2010); Marks v. Newcourt Credit Grp., Inc. , 342 F.3d 444, 462 ( 6th Cir. 2003).No. 11-3697

Cosmichrome, Inc . v. Spec tra Chrome, LL C court’s persona l-jurisdiction ruling “stands for purposes of this appea l,” W hite Oak Prop. Dev ., LLC

v. W ash. Twp., Ohio , 606 F.3d 842, 854 (6th Cir. 2010), and we aff irm the district court’s dismiss al

on this basis

. Ho we ver, having found that it lacke d persona l jurisdiction over Def endants, the district court erre d in proce eding any fu rt h er b y rul ing that Plaintiffs’ claims wer e ti me-ba rre d on statute-of- limit ations g rounds and dismiss ing their complaint with prejudice

. S ee R u h rgas AG v. Marathon Oil Co. , 526 U.S. 574, 584 (1999) (“Persona l jurisdiction . . . is an essential e lement of the jurisdiction of a district court, withou t wh i ch t h e court is power less to proce ed to an adjudication.” (citation, ellipses, and internal quotation marks omitted)); Nafzig er v. Mc Dermott Int’l, Inc. , 467 F.3 d 514, 520 (6th Cir. 2006) (“[T]his circ uit’s case law instructs that even if the district court had been corr ect in concluding that it lacke d persona l jurisdictio n o v e r [t he defe ndants], the court’s dismiss al on that g round should have been without, not with, prejudice .”); Intera Corp.

v. Hende rson , 428 F.3d 605, 620–21 (6th Cir. 2005) (“[D]ism issals for lack of persona l jurisdiction should be made ‘without prejudice .’

. . . Fur thermore , up o n a d eter

mination that persona l jurisdiction is lacking , a court should not dismiss a case on the merits, espec ially when it appea rs that another court with appropr iate jurisdiction may resolve the issues betwee n the parties .”). Thus, having deter

mined that it lacke d persona l jurisdiction over Def endants, the district court should have either dismi ssed t he ac tion without prejudice, see I ntera Corp. , 428 F.3d at 620, or, in the i ntere st

o f j u s tice, transfe rre d it to a court that has persona l jurisdiction over Def endants pursuant to 28 U.S.C. §§ 1406(a) or 1631, see Rom an v. Ashcroft , 340 F.3d 314, 328–29 & n.11 (6th Cir. 2003). Plaintiffs argue that the district court err ed in failing to transfe r t h i s case to the Middle District of Florida

. We revie w a district court’s decision to dismiss a complaint, rathe r than transfe rNo. 11-3697

Cosmichrome, Inc . v. Spec tra Chrome, LL C the case , for abuse of discretion. First of Mich. Corp. v. Bramlet , 141 F.3d 260, 262 (6th Cir. 1998). Be cause Plaintiffs never moved for a transfe r, they cannot now contend that the district court abused

a discretion that it wa s never asked to e x erc ise. See A llstat e Ins. Co. v. Gree n , 831 F.2d 145, 148 4 (6th Cir. 1987) (“We cannot charg e the district judge with having abused a discretion she was never asked to exercise[.]”). Al t h o u gh a district court has the power to sua sponte transfe r a case , in decidingwhether

to gr ant Def

endants’ motion to dismiss there was no rea son for the district c ourt to presume that Plaintiffs wanted their case transfe rre d to the Middle District of Florida

. This is particula rly the case beca

use Plaintiffs did not see k a transfe r and chose to file this action in the Norther n District of Ohio afte r t heir prior state-c ourt action had been dismi ssed based on the l ack

o f p ersonal jurisdiction. See Erdman v. Erdman , 173 F.3d 854, 1999 WL 183405, at *1 (6th C i r. Mar. 16, 1999) (table decision) (“[The plaintiff] contends that the dis t ri ct court should have sua sponte transfe rre d the case to Texas, or al l o we d h i m time to make a transfe r motion. As [t he plaintiff] chose to file the case in Michig an, rathe r than in Texas, there was no rea son for the district court to pre sume that [he] wanted the case transfe rre d.”); Caldwell v. Palmetto State Sav. Bank of S.C. , 811 F.2d 916, 919 (5th Cir. 1 9 8 7 ) (per curiam) (ruling that a district court did not abuse its discretion in failing to sua s p o n t e o rd er a transfe r); Thornton v. W alter , 774 F.2d 1164, 1985 WL 13711, at *2 (6th Cir. Sept. 17, 1985) (pe r cur iam) (table decision) ( same).

We do not prec lude the possibili ty that a district court’s failure to sua sponte transfe r a case 4 may constitute an abuse of discretion wher e the interest of justic e clearly war rant a transfe r, cf. Daniel v. Am. Bd. of Emerge ncy Med. , 428 F.3d 408, 435 (2d C ir. 2005) (“ A ‘compelling reason’ for transfer is ge nera lly

acknow ledg ed whe n a plaintiff’ s case , if dismiss ed, would be ti me-ba rre d on ref iling in the proper forum.” (citations omitted)), and the court was awa re of such circ umstances. But, we need not r eac h this question here be cause no compelling rea son for a transfe r wa s raised.No. 11-3697

Cosmichrome, Inc . v. Spec tra Chrome, LL C Moreove r, in the last sentenc e of their Rule 59(e) motion, Plaintiffs asser ted for the first time, without further explanation, that “this case should be dismiss ed without prejudice or transfe rre d.” In other words, Plaintiff f ailed to a dvance any argument in the district c ourt that a transfe r was the only appropr iate opti on. Given these circ umstances, we find no abuse of discretion insofar as t he district court dec lined to transfe r this case

. III. For the fore g oing r easons, we AFF I RM in part, VACATE in par t, and REMAND for entry of judg ment dismiss ing this ac tion without prejudice.