E B - B R A N P R O D U C T I O N S , Incorporated v. W A R N E R / E L E K T R A / A T L A N T I Ccorporation

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0407n.06
Filed: June 19, 2007
Nos. 05-2699 and 06-1670
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
E B - B R A N P R O D U C T I O N S ,
INCORPORATED,
Plaintiff-Appellant,
v.
W A R N E R / E L E K T R A / A T L A N T I C
CORPORATION, et al.
Defendants-Appellees. (05-2699)
_________________
E B - B R A N P R O D U C T I O N S ,
INCORPORATED,
Plaintiff-Appellant,
v.
W A R N E R / E L E K T R A / A T L A N T I C
CORPORATION; WARNER-TAMERLANE
PUBLISHING, INCORPORATED; CINRAM
I N T E R N A T I O N A L ; I V Y H I L L
CORPORATION; ATLANTIC RECORDING;
LAVA RECORDS; WARNER MEDIA
SERVICES; JOHN DOE; JANE DOE; TOP
DOG RECORDS, INCORPORATED;
ROBERT J. RITCHIE,
Defendants-Appellees. (06-1670)
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN

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Nos. 05-2699 and 06-1670
Eb-Bran Productions, Inc. v. Warner/Elektra/Atlantic Corp.
The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern*
District of Ohio, sitting by designation.
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Before: ROGERS and COOK, Circuit Judges; and DOWD, District Judge.*
PER CURIAM. Eb-Bran Productions, Inc. (“Eb-Bran”) appeals the district court’s orders
denying its motion to remand and granting the defendants’ motion for summary judgment. Eb-Bran’s
attorneys appeal the district court’s order granting the defendants’ motion for sanctions pursuant to
Fed. R. Civ. P. 11. Having reviewed the record and the applicable law, and with the benefit of the
parties’ briefs, we determine that no jurisprudential purpose would be served by a lengthy panel
opinion. With the following qualification, we affirm the district court’s judgments for the reasons
stated in that court’s opinions.
In granting summary judgment against Eb-Bran, the district court concluded that (1) the res
judicata effect of Ritchie v. Williams (Ritchie I), 395 F.3d 283 (6th Cir. 2005), barred the claims
against Ritchie, Top Dog, Warner/Elektra/Atlantic Corp., Warner Media Services, Lava Records, Ivy
Hill, Inc., and Cinram International; (2) the res judicata effect of the pre-removal state-court
proceedings in Ritchie I barred the claims against Warner-Tamerlane; and (3) a stipulated order
entered by the district court in Ritchie I barred Eb-Bran’s claim against Atlantic Recording Corp. We
express no opinion on the overall soundness of the district court’s res judicata analysis: Eb-Bran
makes a proper challenge to only one aspect of the analysis, and that challenge fails, so we affirm.

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Nos. 05-2699 and 06-1670
Eb-Bran Productions, Inc. v. Warner/Elektra/Atlantic Corp.
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The only res judicata argument Eb-Bran properly raises on appeal is that under Michigan law,
a dismissal based on the statute of limitations is not a decision “on the merits.” See Verbrugghe v.
Select Specialty Hosp., 715 N.W.2d 72, 80 (Mich. Ct. App. 2006). No matter which of the defendants
Eb-Bran means to target with this argument, it fails. Warner-Tamerlane was dismissed from the pre-
removal state-court litigation because Eb-Bran failed to state a claim against it, not because of the
statute of limitations. As for the remaining defendants, Michigan’s characterization of a judgment
based on the statute of limitations is unimportant because a federal court applies federal law in
determining the preclusive effect of a prior federal judgment (like Ritchie I), at least where
jurisdiction in the prior litigation was based on a federal question. See Blonder-Tongue Labs., Inc.
v. Univ. of Ill. Found., 402 U.S. 313, 324 n.12 (1971) (“It has been held in non-diversity cases since
Erie R. Co. v. Tompkins, that the federal courts will apply their own rule of res judicata.” (citation
omitted)); Restatement (Second) of Judgments § 87 (“Federal law determines the effects under the
rules of res judicata of a judgment of a federal court.”); Remus Joint Venture v. McAnally, 116 F.3d
180, 184 n.5 (6th Cir. 1997) (endorsing § 87); cf. J.Z.G. Res., Inc. v. Shelby Ins. Co., 84 F.3d 211, 213
(6th Cir. 1996) (endorsing § 87 in the context of successive diversity actions). Under federal law,
summary judgment based on the statute of limitations is a final judgment on the merits for res judicata
purposes. Nathan v. Rowan, 651 F.2d 1223, 1226 (6th Cir. 1981).
All of Eb-Bran’s other res judicata arguments are either woefully underdeveloped or raised
for the first time in the reply brief. The former are deemed waived, e.g., McPherson v. Kelsey, 125
F.3d 989, 995–96 (6th Cir. 1997), and we may—and do—decline to consider the latter, e.g., Osborne

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Nos. 05-2699 and 06-1670
Eb-Bran Productions, Inc. v. Warner/Elektra/Atlantic Corp.
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v. Hartford Life and Accident Ins. Co., 465 F.3d 296, 301 (6th Cir. 2006); Radvansky v. City of
Olmstead Falls, 395 F.3d 291, 318 & n.23 (6th Cir. 2005) (citing Fed. R. App. P. 28 and other
authority).
Finally, the stipulated order entered by the district court in Ritchie I precludes Eb-Bran’s suit
against Atlantic Recording Corp.
With the foregoing additional reasoning, we affirm the judgments of the district court and
deny all pending motions.

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