GODLEY v. AMERITECH CORP., 1999 U.S. App. LEXIS 5983 (6th Cir.  March 30, 1999) (Unpublished)-Plaintiff sued in State Court for severance claiming breach of implied contract. Defendant removed the case claiming ERISA preempts Defendant's clams. Defendant moved for dismissal under Rule 12(b)(6) claiming ERISA preemption. The Court converted the motion to a motion for summary judgment. Judge granted Plaintiff's Motion for time to respond to Defendant's Motion for Summary Judgment. Since the Plaintiff never responded the Court granted the motion for summary judgment. Plaintiff never appealed the Court's ruling.

Instead the Plaintiff sued again in federal court claiming Defendant violated Plaintiff's ERISA rights. District Court dismissed second suit claiming res judicata. Sixth Circuit affirmed. "Where two successive suits seek recovery for the same injury, a judgment on the merits operates as a bar to the later suit, even though a different legal theory of recovery is advanced in the second suit.  Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 319-21, 71 L. Ed. 1069, 47 S. Ct. 600 (1927)