# Grado, M.D. v. Medical, Industrial, and Scientific Products Corporation

> District Court, S.D. Ohio · August 5, 2025

URL: https://www.frixlaw.com/law-library/cases/11114890

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 5, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11114890

## How later opinions describe it (automated extraction)

- holding that after an arbitrator found the defendant to be in default for failure to pay fees, the defendant could not seek to compel arbitration
- explaining that, after Morgan, courts no longer consider whether the movant’s conduct has prejudiced the opposing party
- explaining that, after Morgan, courts no longer consider whether the movant’s conduct has prejudiced the opposing party

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

GORDON GRADO, M.D., et al.,

Plaintiffs,
Case No. 1:24-cv-158
v.
JUDGE DOUGLAS R. COLE
MEDICAL, INDUSTRIAL, AND
SCIENTIFIC PRODUCTS
CORPORATION, et al.,

Defendants.
OPINION AND ORDER
Defendant Jose Rodriguez moves to dismiss wholesale the claims Plaintiffs
Gordon Grado, M.D. and his company, Centro de Especialidad Oncologica (CdEO),
have asserted against him. But because Rodriguez has abjectly failed to develop any
of his arguments, the Court declines to do so. Accordingly, for the reasons explained
more fully below, the Court DENIES Rodriguez’s Motion to Dismiss (Doc. 32). That
said, one of Rodriguez’s grounds for dismissal warrants further inquiry. In particular,
the Court needs clarity on whether Rodriguez is seeking to compel arbitration and, if
so, whether he may have waived the right to arbitrate through litigation conduct or
otherwise (and, more fundamentally, whether this Court, or instead the arbitrator, is
the appropriate decisionmaker on that issue). So the Court will set an in-person
hearing in the near future.1

1 And the Court advises Rodriguez (who is proceeding pro se) to attend that hearing, either
personally or through counsel, or risk the consequences of failing to participate in this
litigation, which could include entry of default judgment against him.
BACKGROUND2
This case revolves around Dr. Grado and his company’s efforts to acquire a
linear accelerator machine (LINAC) for their oncology clinic in Aguascalientes,
Mexico. (Op. & Order, Doc. 33, #236–37). Grado and CdEO (which is Grado’s wholly-

owned company) perhaps could have sought to purchase the LINAC from Defendants
Suleiman Refaei and Jordan Medical Group, LLC (JMG)—a seller of medical
equipment (and also Defendants in this lawsuit, as explained below). (Am. Compl.,
Doc. 11, #74). But after past attempts to procure medical equipment from Refaei and
JMG went awry, Grado “determined that he would never engage in dealings [with
them] again.” (Id. at #76). So this time around, Grado sought out Rodriguez and MIS

to procure the machine, and in doing so he let them know “he would not do business
with Refaei or JMG.” (Id.). According to Grado, “Rodriguez, personally and [on] behalf
of MIS” told Grado and CdEO that “MIS owned title” and possessed a LINAC
available “for immediate sale.”3 (Id. at #75).
Based on these (mis)representations, Grado (whether personally or on behalf
of his company is not entirely clear) executed a purchase agreement with MIS on

2 As the Court mentioned in its previous Opinion and Order, (Doc. 33, #236 n.1), concerning
Defendants Refaei and JMG’s Motion to Dismiss, (Doc. 20), because this matter is before the
Court on a motion to dismiss, the Court accepts the well-pleaded allegations in the Complaint
as true, Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). But in
reporting the background here based on those allegations, the Court reminds the reader that
they are just that—allegations.
3 Rodriguez made other representations as well. For example, that the LINAC had been
“inspected,” de-installed correctly, and was being “properly stored.” (Doc. 11, #75).
June 5, 2020, through which he purchased the LINAC for $145,000.4 (Id.; Purchase
Agreement, Doc. 11-1, #90–92).5 Grado’s plan was to transfer ownership of the LINAC
to CdEO (his company), and CdEO was then going to use it to replace a broken

machine at the clinic. (See Doc. 11, #78).
But Grado’s plan hit a snag. That’s because, even though he paid in full,
Rodriguez and MIS never delivered the LINAC. (Id. at #75–77). Perhaps that’s
because Rodriguez and MIS never actually had one. (Id. at #76). Behind the hollow
promises of the Purchase Agreement, Rodriguez and MIS were engaged in more
complicated machinations. In reality, they did not own or possess a LINAC as they
had represented; rather, Refaei and JMG did. (Id.). That’s not to say Rodriguez and

MIS did not intend to deliver a LINAC to Grado. In fact, Rodriguez and MIS entered
into two agreements with Refaei and JMG in an effort to secure delivery of a LINAC
to Grado—a Sale Agreement, (Doc. 11-2), and a Third-Party Beneficiary Agreement,
(Doc. 11-3).6 (See Doc. 33, #236–37). And, as will prove important later, the Third-
Party Beneficiary Agreement specified that the LINAC was being kept in storage at
9823 Cincinnati Dayton Road, West Chester Township, Ohio. (Doc. 11-3, #97). (It may

4 Rodriguez and MIS accepted that payment and then transferred some or all of it to Refaei
and JMG. (Doc. 11, #77). Grado also ended up paying $4,000 in storage fees. (Id. at #75).
5 The Court may rely on the Purchase Agreement, as well as the Sale Agreement and Third-
Party Beneficiary Agreement described below. That’s because (1) they are written
instruments that are referenced and attached to the Amended Complaint, and (2) they serve
as the basis for Plaintiffs’ claims. Anderson v. ABF Freight Sys., Inc., No. 1:23-cv-278, 2024
WL 51255, at *1 n.3 (S.D. Ohio Jan. 4, 2024); Fed. R. Civ. P. 10(c).
6 The Sale Agreement is dated July 22, 2020, (Doc. 11-2, #94), and the Third-Party
Beneficiary Agreement October 12, 2020, (Doc. 11-3, #97), respectively.
still be there today.) So, at least based on these agreements, the Defendants seemed
to have a plan to deliver the LINAC to Grado.
But apparently the plan went awry.7 Grado never received a LINAC, whether

from Rodriguez and MIS, or from Refaei and JMG. (Doc. 11, #77). What’s more, he
also did not receive a refund. Rather, Refaei and JMG demanded $25,000 more from
him. (Id.). And once Refaei’s and JMG’s involvement became clear to Grado, that
became its own separate problem, as Grado had (perhaps wisely if the allegations in
the Complaint are accurate) disavowed transacting with them. (Id. at #76). Indeed,
Grado claims that all Defendants knew that he “would not enter into any transaction
if he were aware that either Refaei or JMG were involved.” (Id.).

In the end, Grado and CdEO were forced to look elsewhere for a LINAC. (See
id. at #78). The delays and separate business dealings to obtain that LINAC subjected
them to additional regulatory hurdles and caused them to lose business and clientele
in the interim. (Id.). As a result, Grado and CdEO initiated this action on March 25,
2024. (Doc. 1). In Plaintiffs’ eleven-count Amended Complaint, they assert eight
claims against Rodriguez and MIS: (1) breach of contract as to the Purchase

Agreement (Count I); (2) fraudulent inducement (Count II); (3) negligent
misrepresentation (Count III); (4) promissory estoppel (Count IV); (5) unjust
enrichment (Count V); (6) fraudulent misrepresentation (Count VIII); (7) breach of

7 MIS separately sued JMG and Refaei for failing to provide the LINAC to MIS for transfer
to Grado, but the case was dismissed for failure to prosecute. (Doc. 33, #239; Order
Dismissing Action for Failure to Prosecute, Med., Indus. & Sci. Prods., Inc. v. Jordan Med.
Grp., LLC, No. 1:21-cv-555 (S.D. Ohio Oct. 18, 2022), Doc. 22).
contract as to the Sale Agreement and Third-Party Beneficiary Agreement (Count
IX); and (8) civil conspiracy (Count X).8 (Doc. 11, #78–87).
After some difficulty effectuating service, (see generally Doc. 29), Rodriguez

and MIS (Rodriguez’s company) were finally served on October 2, 2024. (See Docs. 30,
31). MIS had until October 23, 2024, to answer, but it did not do so. (Doc. 31). A few
weeks later, Plaintiffs applied to the Clerk for entry of default against MIS, (Doc. 34),
and the Clerk did so on November 21, 2025, (Doc. 37).
As for Rodriguez, he’s opted to proceed pro se and now moves to dismiss. (Doc.
32). The motion leaves much to be desired. In it, Rodriguez broadly asserts what seem
to be nine purported grounds for dismissal. (See id.). But those grounds overlap and

muddle concepts. And, perhaps more problematically, Rodriguez devotes only a few
sentences to each. He does not attack specific claims, but rather directs his fire at the
Amended Complaint as a whole. And he cites no legal authority. Simply put,
Rodriguez failed to fully develop any of his arguments.
Beyond that, after Plaintiffs responded, (Doc. 38), Rodriguez also passed up his
opportunity to develop his positions in a reply. So, as things stand, Rodriguez has, at

best, provided outlines of arguments—perhaps gestures toward arguments would be

8 Plaintiffs also assert seven claims against both Refaei and JMG, and one claim against JMG
but not Refaei. (Doc. 11, #81–87). Of those eight total claims, the Court has dismissed four,
but allowed four to proceed. (Doc. 33, #260–61). The Court found that “the claim-preclusive
effect of the judgment in MIS’s case against JMG and Refaei” barred Plaintiffs’ promissory
estoppel (Count IV), unjust enrichment (Count V), trespass to chattel (Count VI), and
conversion (Count VII) claims, as asserted against Refaei and JMG. (Id.). See also supra note
7. But the Court permitted the following claims against Refaei and/or JMG to move forward:
fraudulent misrepresentation (Count VIII), breach-of-third-party-beneficiary contract (Count
IX), civil conspiracy (Count X), and the tortious interference (Count XI) claims. (Doc. 33,
#260–61).
a more accurate description. But that is a problem. Under the party-presentation
principle, the Court is not in “the business of making arguments for parties”—even
pro se parties. Brashear v. Pacira Pharms., Inc., No. 1:21-cv-700, 2024 WL 3860465,

at *4 n.5 (S.D. Ohio Aug. 19, 2024); cf. United States v. Sineneng-Smith, 590 U.S. 371,
375–76 (2020) (explaining that courts may have a “modest initiating role” in
departing from the party-presentation principle in pro se criminal and habeas cases).
Nonetheless, the motion, such as it is, is ripe for review.
LEGAL STANDARD
The Court construes Rodriguez’s motion to dismiss as arguing that the Court

lacks personal jurisdiction over him under Federal Rule of Civil Procedure 12(b)(2) in
addition to pressing several arguments under Rule 12(b)(6).9 So the Court will
address the legal standards that apply to both, starting with personal jurisdiction.
A. Rule 12(b)(2) Standard.
Under Federal Rule of Civil Procedure 12(b)(2), “in the face of a properly

supported motion for dismissal [for lack of personal jurisdiction], the plaintiff may
not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts
showing that the court has jurisdiction.” Theunissen v. Matthews, 935 F.2d 1454,
1458 (6th Cir. 1991) (emphasis added). Or, said slightly differently, if “[p]resented
with a properly supported 12(b)(2) motion and opposition,” “[t]he plaintiff bears the

9 What Rodriguez actually says is that the “Court lacks subject matter jurisdiction over the
claims, as Defendant [] Rodriguez has never conducted business in the state of Ohio, nor has
any part of the alleged dispute occurred within this jurisdiction.” (Doc. 32, #232). Plaintiffs
assessed that Rodriguez intended to make personal jurisdiction argument, not a subject-
matter jurisdiction one. (Doc. 38, #314). The Court agrees.
burden of establishing that [such] jurisdiction exists.” Id. (emphasis added); see also
Malone v. Stanley Black & Decker, Inc., 965 F.3d 499, 504 (6th Cir. 2020) (explaining
that “[m]otions to dismiss under Rule 12(b)(2) involve burden shifting” and that after

a plaintiff makes a prima facie showing in the complaint, “[t]he burden then shifts to
the defendant, whose motion to dismiss must be properly supported with evidence”).
The nature of the plaintiff’s burden turns on how the Court chooses, in its
discretion, to handle the motion. Malone, 965 F.3d at 505. Before trial, the Court may
decide to resolve the question on the written submissions, to permit additional
discovery, or to hold an evidentiary hearing. Id. If the Court holds an evidentiary

hearing, “the plaintiff may not stand on his pleadings but must, by affidavit or
otherwise, set forth specific facts showing that the court has jurisdiction” by a
preponderance of the evidence. Theunissen, 935 F.2d at 1458, 1465. But if the Court
“rules on written submissions alone, the burden consists of a prima facie showing
that personal jurisdiction exists.” Schneider v. Hardesty, 669 F.3d 693, 697 (6th Cir.
2012) (cleaned up). And a plaintiff may rely on just her allegations to meet that prima
facie burden. Malone, 965 F.3d at 505. So when, as here, a defendant has neither

submitted an affidavit nor requested a hearing on the topic, the Court rules on a Rule
12(b)(2) motion without consideration of any averments that merely contradict those
jurisdictional allegations. See id. at 505–06. Additionally, the Court views the
pleadings in a “light most favorable to the nonmovant.” Carbone v. Kaal, 140 F.4th
805, 809 (6th Cir. 2025).10

B. Rule 12(b)(6) Standard.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a “complaint must present sufficient facts to ‘state a claim to relief that is plausible
on its face.’” Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d 315, 319 (6th Cir.
2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In assessing plausibility, the
Court “construe[s] the complaint in the light most favorable to the plaintiff.” Bassett
v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (quotation
omitted).
A court analyzing a motion to dismiss generally must confine its review to the
pleadings. Armengau v. Cline, 7 F. App’x 336, 343 (6th Cir. 2001). But if the pleadings

reference a document that “is integral to the claims,” the Court may consider that
document “without converting a motion to dismiss into one for summary judgment.”
Com. Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 335–36 (6th Cir. 2007); Fed.
R. Civ. P. 10(c). These “written instruments are records falling within a narrowly
defined class of legally significant documents on which a party’s action or defense is

10 The Court notes, however, that at the motion-to-dismiss stage this is a threshold inquiry
and that a plaintiff must still, by a preponderance of the evidence, prove that personal
jurisdiction exists at trial. Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th
Cir. 1989).
based.” Anderson v. ABF Freight Sys., Inc., No. 1:23-cv-278, 2024 WL 51255, at *9
(S.D. Ohio Jan. 4, 2024) (cleaned up). “[T]hey often create or define legal rights or
obligations, or define or reflect a change in legal relationships.” Id. (cleaned up).

“Even so, a court will not credit a document attached to a motion to dismiss [or other
briefing] that is not integral to or referenced in the complaint, or is otherwise unlike
quintessential examples of written instruments—for example, when the exhibit is
unsigned and undated (i.e., lacks self-verifying qualities).” Washington v. City of
Cincinnati, No. 1:23-cv-230, 2024 WL 474403, at *2 (S.D. Ohio Feb. 7, 2024) (cleaned
up).

C. Pro Se Status.
One final point about the legal standards at issue here bears mention.
Rodriguez is proceeding pro se, which means that the Court construes his filings
liberally. Hankins v. Waddle, No. 1:21-cv-474, 2023 WL 3995931, at *1 (S.D. Ohio
Apr. 19, 2023) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). But liberal
construction does not mean that the Court develops arguments from scratch on

substantive law. See Johnson v. Stewart, No. 08-1521, 2010 WL 8738105, at *3 (6th
Cir. May 5, 2010). And pro se litigants still must comply with the procedural rules
that govern civil cases. McNeil v. United States, 508 U.S. 106, 113 (1993).
LAW AND ANALYSIS
While Rodriguez styles his motion to dismiss as advancing nine separate
grounds for dismissal, so far as the Court can tell, he asserts only six independent

grounds for dismissing Plaintiffs’ claims against him. (See Doc. 32, #231–33). First,
he takes issues with the Amended Complaint’s factual assertions, multiple times.
(See e.g., id. at #231 (“Plaintiffs’ assertions are factually inaccurate … built on
misrepresentations and unfounded allegation.”), 232 (“Plaintiffs have provided no

evidence to substantiate their claims.”)). Second, he argues that there is a contract
only between Grado and MIS, and that claims involving CdEO should be dismissed.
(Id. at #231). Third, he states that he signed the contract between Grado and MIS in
his “corporate capacity” so “[t]here is no basis to hold [him] personally liable.” (Id. at
#231–32). Fourth, he states that the Purchase Agreement had an arbitration
agreement (although he does not move to compel arbitration), rendering this Court
an improper venue. (Id. at #232). Fifth, he argues that Grado’s claims are time-barred

under the Purchase Agreement’s one-year statute of limitations. (Id.). Finally, he
states that the Court lacks personal jurisdiction over him. (Id.); see also supra note 9.
The Court starts with Rodriguez’s jurisdictional and venue-related arguments, then
moves on to his other purported grounds for dismissing the Amended Complaint.
None have merit.

A. Subject-Matter Jurisdiction and Choice of Law.
As explained in the Court’s previous Opinion and Order, the Court has subject-
matter jurisdiction under 28 U.S.C. § 1332(a)(3). (Doc. 33, #243 n.6). The Court also
previously decided to apply Ohio contract law (at least for the claims involving
Defendants Refaei and JMG). (Id. at #242 n.5). The Court found that Ohio is the
“forum with the most significant relationship[] to Plaintiffs’ claims” because “this
matter arises out of the Ohio Defendants’ (JMG’s and Refaei’s) refusal to deliver the
LINAC” and the harms resulting from the actions that occurred in Ohio. (Id.). Still
the Court reserved the right to revise and reconsider that determination. (Id.).
Since then, it has come to the Court’s attention that the Purchase Agreement

between Grado and MIS contains a choice-of-law provision identifying Illinois law.11
(Doc. 11-1, #92). Rodriguez does not address, or seek to enforce, this choice-of-law
provision. Plaintiffs, however, argue that Ohio law applies “because there is no
‘reasonable basis’ for this choice-of-law provision.” (Doc. 38, #312 n.4).
In the Court’s view, this is, at least currently, much ado about nothing.
Plaintiffs claim Ohio law applies; Rodriguez is perhaps best described as agnostic.
But neither has offered any reason why deciding that issue—i.e., which state’s law

applies—matters to any issue currently before the Court. So far as the Court can tell,
nothing about either Grado’s or Rodriguez’s current arguments turns, in any way, on
any unique aspect of either Ohio or Illinois law. Thus, at least for the time being, the
Court declines to revisit its earlier determination. If at some point the difference
actually matters, the Court leaves the parties free to re-raise the issue then.

B. Arbitration Provision and Venue Argument.
Under the Federal Arbitration Act (FAA), if a party moves to compel
arbitration, the Court “must refrain from further action and must first determine
whether there is a written agreement to arbitrate between the parties.” Southard v.
Newcomb Oil Co., LLC, No. 19-5187, 2019 WL 8111958, *4 (6th Cir. Nov. 12, 2019)

11 The provision states: “This agreement shall be governed by and interpretated in accordance
with the laws of the state of Illinois.” (Doc. 11-1, #92).
(cleaned up). Here, the Purchase Agreement clearly contains an arbitration provision
that appears to apply to the present dispute. (Doc. 11-1, #92). So arguably, that is the
end of the matter.

But there are also reasons to doubt that is the case. First, Rodriguez may not
actually be moving to compel arbitration.12 True, he points to the arbitration
provision and says that the Court should dismiss this case, but he says that is because
the provision makes “this court an improper venue.” (Doc. 32, #232). That seems to
raise a challenge to venue under Federal Rule of Civil Procedure 12(b)(3). But if that’s
his argument, it doesn’t work. “[P]arties should not use Rule 12(b)(3) to raise an
arbitration agreement.” Boykin v. Fam. Dollar Stores of Mich., 3 F.4th 832, 838 (6th

Cir. 2021).
Of course, Rodriguez is proceeding pro se, and thus gets the benefit of liberal
construction. So perhaps the Court could read Rodriguez as impliedly requesting the
Court to compel arbitration under 9 U.S.C. § 4. See id. at 837–38; Witemyre v. GE
Flight Efficiency Servs., Inc., No. 1:21-cv-314, 2021 WL 3079884, at *4, *6 (S.D. Ohio
July 21, 2021) (explaining “dismissal … is an available remedy if the Court enters an

order compelling arbitration”). But if that’s the case, things get a bit more
complicated. For example, the default rule is that “if the party opposing arbitration
raises a genuine issue of material fact relating to whether the instant dispute is
subject to arbitration, the court ‘shall proceed summarily to the trial thereof.’ But if

12 Perhaps because an arbitration already occurred. (See Doc. 38, #315–16). Although, in
contrast, Rodriguez claims that Plaintiffs are “in breach of the agreed arbitration provision”
because they “failed to file any claim.” (Doc. 32, #232). The parties’ disagreement on this point
further indicates why record evidence is needed to resolve this particular disagreement.
no such dispute exists, then the court ‘shall make an order directing the parties to
proceed to arbitration in accordance with the terms of the agreement.’” Witemyre,
2021 WL 3079884, at *4. In other words, the default rule is that courts, not

arbitrators, decide substantive arbitrability questions. But the parties can change
that default through the terms of their arbitration agreement. No one has addressed
whether that has occurred here.
That may be because Plaintiffs, for their part, don’t appear to argue that the
claim is not arbitrable. That is, they are not challenging the scope of the arbitration
agreement. Rather, they seem to argue that, not only is arbitration appropriate, but
it has already occurred. (Doc. 38, #315–16). And they further claim that Rodriguez

and MIS skunked that process by being “obstructionist, non-compliant with
deadlines, willfully disobey[ing] arbitrator orders until threatened with sanctions,
and … refus[ing] to pay even one penny of the arbitration fee and cost obligations.”
(Id. at #316 (emphasis omitted)). Plaintiffs go on to contend that, as a result of
Rodriguez’s and MIS’s behavior, the arbitrator dismissed the arbitration without
prejudice. (Id.). And they argue that Rodgriguez’s and MIS’s “conduct”—i.e., failure

to pay fees—is an abandonment (perhaps waiver may be a more accurate term) of the
right to arbitrate. (Id. (citing cases)).
That argument has at least some traction. “[E]ven where a dispute is subject
to an arbitration agreement, a party can waive its ability to assert its rights under
that agreement.” Witemyre, 2021 WL 3079884, at *4. And a party waives its “right to
arbitrate by acting inconsistently with that right.” Morgan v. Sundance, Inc., 596
U.S. 411, 419 (2022); see also Schwebke v. United Wholesale Mortg. LLC, 96 F.4th
971, 974 (6th Cir. 2024) (explaining that, after Morgan, courts no longer consider
whether the movant’s conduct has prejudiced the opposing party). Along these lines,

Plaintiffs correctly note that a failure to pay required arbitration fees is behavior that
courts have treated as inconsistent with an intent to arbitrate. See, e.g., Thomas D.
Philipsborn Irrevocable Ins. Tr. v. Avon Cap., LLC, No. 11-c-3274, 2012 WL 4513903,
at *5 (N.D. Ill. Oct. 1, 2012).
But that only raises further questions. Courts often treat waiver arguments as
implicating questions concerning procedural arbitrability, which are “presumptively
for the arbitrator, not for the judge” to decide. Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79, 85 (2002). Still, that’s not always the case, for instance where a party’s
litigation conduct evinces waiver. In re Chrysler Pacifica Fire Recall Prods. Liab.
Litig., __ F.4th __, 2025 WL 1904525, at *2–3 (6th Cir. 2025) (“[C]ourts—and not
arbitrators—decide whether a party has waived its right to compel arbitration
through litigation conduct inconsistent with that right.”). As for whether failure to
pay arbitration amounts to a situation the Court, rather than the arbitrator, can

decide, it appears to be fact dependent. Compare Sink v. Aden Enters., Inc., 352 F.3d
1197, 1199, 1201 (9th Cir. 2003) (holding that after an arbitrator found the defendant
to be in default for failure to pay fees, the defendant could not seek to compel
arbitration), with Dealer Comput. Servs, Inc. v. Old Colony Motors, Inc., 588 F.3d 884,
886–87 (5th Cir. 2009) (determining “[p]ayment of fees is a procedural condition
precedent that the trial court should not review” (but where the arbitrator had
apparently not decided the issue of default)), and Union Cent. Life Ins. Co. v. Andraos,
No. 1:09-cv-758, 2011 WL 6091771, at *5 (S.D. Ohio Oct. 21, 2011) (deciding that
“whether defendants’ nonpayment of arbitration fees amounts to a waiver of

arbitration should be decided by the arbitrator, and not this Court,” while recognizing
Sink’s distinguishing facts), R&R adopted, No. 1:09-cv-758, 2011 WL 6100275 (S.D.
Ohio Dec. 7, 2011).
But the problem for both parties—or really for the Court—is that the record
provides no basis on which the Court could muddle its way through these various
procedural thickets. As a result, and to err on the side of caution if Rodriguez is in
fact moving to compel arbitration, the Court will set an in-person hearing to

(1) determine if Rodriguez is trying to compel arbitration, (2) hear evidence
concerning the alleged already-completed arbitration proceedings (along with any
arbitral orders entered in that arbitration), and (3) determine whether this Court
may, or whether an arbitrator instead must, decide whether Rodriguez has waived
his right to arbitrate. The parties should be prepared to offer evidence or guidance on
all three topics.

C. Personal Jurisdiction.
Next, Rodriguez advances a personal jurisdiction argument, which he has
failed to support in any meaningful way. (See Doc. 32, #232). He merely asserts that
he “has never conducted business in the state of Ohio” and argues the no part of this
“dispute occurred within this jurisdiction.” (Id.). He attaches no affidavits or evidence
to support those claims. So all the Court needs to assess is whether Plaintiffs have
made a prima facie showing of personal jurisdiction over Rodriguez in the Amended
Complaint—a “relatively slight” burden. Malone, 965 F.3d at 504–05 (quoting Am.
Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th Cir. 1988)). And because the Court

decides the personal jurisdiction issue without conducting an evidentiary hearing or
permitting jurisdictional discovery, where “the parties aver conflicting accounts of
the salient facts, the Court resolves those conflicts in [Plaintiffs’] favor.” Chulsky v.
Golden Corral Corp., 583 F. Supp. 3d 1059, 1069 (S.D. Ohio 2022).
Since the Court is sitting in diversity, to make a prima facie showing of
jurisdiction, Plaintiffs are required “to establish, with reasonable particularity,
sufficient contacts between [Rodriguez] and the forum state to satisfy the relevant

long-arm statute and the Due Process Clause.” Malone, 965 F.3d at 504. “Here, that
means showing that [Rodriguez] purposefully availed [him]self of the privilege of
conducting activities in the State of Ohio.” Id. The Court finds that, despite
Rodriguez’s entreaties, Plaintiffs have made the necessary prima facie showing.
1. Ohio’s Long-Arm Statute.

Ohio’s General Assembly amended Ohio’s long-arm statute, effective April 7,
2021. Chulsky, 583 F. Supp. 3d at 1071 n. 6. Compare Ohio Rev. § Code 2307.382(C)
(1988) (“When jurisdiction over a person is based solely upon this section, only a cause
of action arising from acts enumerated in this section may be asserted against him.”),
with Ohio Rev. § Code 2307.382(C) (2020) (“In addition to a court’s exercise of
personal jurisdiction under division (A) of this section, a court may exercise personal
jurisdiction over a person on any basis consistent with the Ohio Constitution and the
United States Constitution.”). While the “amendment [] raised the question whether
a court must separately analyze the jurisdictional exercise under both the long-arm
statute and the Due Process Clause,” Chulsky, 583 F. Supp. 3d at 1071 n. 6, in the

intervening years courts in this district have determined that such separate analyses
are unnecessary, see, e.g., Zahara Ariel LLC v. Lionsgate Ent. Corp., No. 2:23-cv-1916,
2023 WL 4706188, at *2 (S.D. Ohio June 14, 2023); Container Mfg. Ltd. v. Vobev,
LLC, No. 3:24-cv-150, 2024 WL 4444562, at *3–4 (S.D. Ohio Oct. 8, 2024). This Court
agrees and finds that the plain language of this update makes Ohio’s long-arm statute
coterminous with the limits of the federal Due Process Clause. See Ohio Rev. Code
§ 2307.382(C). So the Court engages only in the constitutional analysis at length

here.13 See Bridgeport Music, Inc. v. Still N the Water Pub., 327 F.3d 472, 477 (6th
Cir. 2003).
2. Due Process Clause.
To determine if a district court’s exercise of personal jurisdiction is consistent
with the Due Process Clause, the Court asks whether “the non-resident defendant

possesses such minimum contacts with the forum state that the exercise of
jurisdiction would comport with traditional notions of fair play and substantial
justice.” Chulsky, 583 F. Supp. 3d at 1075 (quoting Beydoun v. Wataniya Rests.
Holding, Q.S.C., 768 F.3d 499, 505 (6th Cir. 2014)). “Personal jurisdiction under the
Constitution comes in two flavors: (1) general personal jurisdiction (i.e., jurisdiction

13 But the Court notes that even if the Ohio statute required a separate analysis, the Court
would have personal jurisdiction under Ohio Revised Code § 2307.382(A), which confers
jurisdiction over persons “[t]ransacting any business in the state,” and which the Ohio
Supreme Court has broadly construed. Chulsky, 583 F. Supp. 3d at 1072–73.
independent of whether the cause of action arises out of the defendant’s contacts with
the forum state), and (2) specific jurisdiction (i.e., jurisdiction over a cause of action
that arises out of a defendant’s contacts with the forum state).” Baker v. Bensalz

Prods., Inc., 480 F. Supp. 3d 792, 801 (S.D. Ohio 2020) (citing Third Nat’l Bank in
Nashville v. WEDGE Grp., Inc., 882 F.2d 1087, 1089 (6th Cir. 1989)).
Start with general jurisdiction. It “exists when a defendant’s relationship with
the forum state is ‘so “continuous and systematic” as to render [it] essentially at home’
there.” Carbone, 140 F.4th at 810 (alteration in original) (quoting Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). Usually, for an individual,
that’s wherever they are domiciled. Goodyear Dunlop, 564 U.S. at 924. Here,

Rodriguez clearly is not domiciled in Ohio. The Amended Complaint states that he is
a resident of Chicago, Illinois, (Doc. 11, #73), and he has apparently been domiciled
in Brazil since October 2023, (Doc. 24-2, #173–77). So general jurisdiction does not
apply.
Instead, Plaintiffs must hang their hat on specific jurisdiction. To do so, they
“must establish a ‘substantial connection’ among ‘the defendant, the forum, and the

litigation.’” Carbone, 140 F.4th at 810 (quoting Walden v. Fiore, 571 U.S. 277, 284
(2017)). The Sixth Circuit uses a three-part test to determine whether such a
substantial connection exists: “(1) the defendant must have purposefully availed
himself of the privilege of acting in the forum state or purposefully caused a
consequence [there]; (2) the cause of action must arise from the defendant’s activities
there; and (3) the defendant’s acts or consequences must have a substantial enough
connection with the forum state to make the exercise of jurisdiction over the
defendant reasonable.” Baker, 480 F. Supp. 3d at 803. As to the first prong, purposeful
availment occurs “where the defendant ‘deliberately’ has engaged in significant

activities within a State … or has created ‘continuing obligations’ between himself
and residents of the forum.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76
(1985) (citations omitted). Turning to the second, the Sixth Circuit recently clarified
that this is a “lenient standard” that can be met when a plaintiff shows “that the
defendant purposefully directed communications into the forum, and those
communications form the heart of the cause of action.” Carbone, 140 F.4th at 814
(cleaned up). Finally, in assessing reasonableness, courts typically consider five

factors: “(1) the burden on the defendant; (2) the forum state’s interest in adjudicating
the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief;
(4) the interstate judicial system’s interest in obtaining the most efficient resolution
of controversies; and (5) the shared interest of the States in furthering fundamental
substantive social policies.” Auto Place, LLC v. Cargill, No. 1:19-cv-130, 2020 WL
1694996, at *5 (S.D. Ohio Apr. 7, 2020) (citing Burger King, 471 U.S. at 477).

Plaintiffs have satisfied their burden as to each of the three specific-
jurisdiction prongs. Starting with the first, the Amended Complaint alleges facts
showing that Rodriguez purposely availed himself of the privilege of acting in Ohio.
This lawsuit turns on Rodriguez’s alleged failure to deliver a LINAC. (Doc. 11, #77).
That makes the LINAC central to this dispute. And as to the LINAC, Plaintiffs allege
(and attach supporting documentation to suggest) that all Defendants, without
Grado’s or CdEO’s knowledge, entered into the Third-Party Beneficiary Agreement
concerning the LINAC that was supposed to go to Grado. (Id.). In other words,
Rodriguez allegedly sought to secure the LINAC that his contract with Grado

required of him, by contracting with an Ohio LLC and Ohio resident (i.e., by executing
the Third-Party Beneficiary Agreement and Sale Agreement). (Id. at #74; Doc. 33,
#243 n. 6). Further, and perhaps more importantly, the Third-Party Beneficiary
Agreement specified that Rodriguez’s co-Defendants would keep the LINAC destined
for Grado in storage at 9823 Cincinnati Dayton Road, West Chester Township, Ohio.
(Doc. 11, #77; Doc. 11-3, #97). In other words, Rodriguez deliberately engaged in
actions directed at satisfying his contractual obligations to Grado by arranging for

the LINAC’s storage in Ohio, and while it remained there, he had continuing
obligations between himself and the Ohio residents who were maintaining it. That’s
enough to show purposeful availment for pleading purposes.
Rodriguez generically resists this finding by claiming that he “has never
conducted business” in Ohio and that no “part of the alleged dispute occurred” here.
(Doc. 32, #232). But as explained, based on the pleadings, that’s just not the case. And

at the pleading stage Rodriguez can’t overcome the allegations in the Amended
Complaint merely by argumentation. At the very least, he would need to provide an
affidavit. Separately, while it is true that “the mere existence of a contract with a
citizen of a foreign state is not enough to show purposeful availment,” Baker, 480 F.
Supp. 3d at 804, here the claims go beyond a contract between parties. Rather, the
item at the center of this dispute, the LINAC, was stored in Ohio, and Rodriguez
agreed for it to be stored there. So the Court finds that Plaintiffs’ Amended Complaint
satisfies the first part of the specific jurisdiction test.
Plaintiffs succeed on the second and third parts of the test as well. Rodriguez

communicated with Ohio parties to have the LINAC stored in Ohio—this is exactly
“the heart of the cause of action.” Carbone, 140 F.4th at 814 (quoting Intera Corp. v.
Henderson, 428 F.3d 605, 617–18 (6th Cir. 2005)). And as to whether exercise of
jurisdiction over Rodriguez is reasonable, the Court finds it is. While there may be a
substantial burden for any defendant living in Brazil to participate in a litigation in
Ohio (or any state for that matter), Ohio has an interest in adjudicating this dispute
because it concerns a piece of equipment stored within its borders. Additionally,

regarding the interstate judicial system’s interest in efficient resolution of this
controversy, it strikes the Court as most efficient to handle all of Plaintiffs’ claims
against the multiple Defendants in this action together. The Court, in sum, finds that
it has specific personal jurisdiction over Rodriguez.
D. Statute-of-Limitations Argument.

Rodriguez’s statute-of-limitations argument is an “affirmative defense[], on
which a [he] bears the ultimate burden of proof.” Rembisz v. Lew, 590 F. App’x 501,
503 (6th Cir. 2014). And while such defenses “are susceptible to resolution on a motion
to dismiss,” that’s normally the case only “if a plaintiff affirmatively pleads himself
out of court.” Id. at 504.
Here, Rodriguez has done nothing more than point to the presence of a
contractually agreed upon statute of limitations, which is shorter than the statutory
limitations period. (Doc. 32, #232; Doc. 38, #313–14; see also Doc. 11-1, #92 (“No
claim … arising out of or in any way connected with this agreement or the Equipment
furnished to buyer may be brought more than one (1) year after the cause of action

has accrued.”14)). Grado entered into the Purchase Agreement with MIS on June 5,
2020. (Doc. 11, #75). But when was the Purchase Agreement actually breached? In
other words, at what point did Rodriguez’s and MIS’s non-delivery amount to a
breach? Did the arbitration the parties (allegedly) engaged in toll the statute of
limitations? These are questions for which the Court currently has no answers.
Plaintiffs are correct that Rodriguez’s argument “necessarily requires the Court to go
beyond the pleading,” (Doc. 38, #312), but where the Court would go at this point is

unclear. Rodriguez’s statute-of-limitations argument is thus premature.
E. Arguments Rooted in Inappropriate Factual Disputes.
The standard at this stage of the litigation is plausibility, not proof. Iqbal, 556
U.S. at 678. And when considering a motion to dismiss, the Court’s role is “to examine
the complaint” and discern whether a cognizable claim exists; its role is not to weigh

the evidence. Perry v. United Parcel Serv., 90 F. App’x 860, 861 (6th Cir. 2004).
Rodriguez fundamentally misunderstands that motion-to-dismiss standard. Despite
his assertions that Plaintiffs’ claims are “factually inaccurate,” (Doc. 32, #231), the
Court construes the Amended Complaint in the light most favorable to Grado and
CdEO, not the light most favorable to Rodriguez. Bassett, 528 F.3d at 430. More than

14 Additionally, the Court questions whether this provision was even triggered given that the
LINAC was never “furnished” to Grado or CdEO. (See Doc. 11-1, #92)
that, the Court assumes the well-pleaded allegations are true. Id. So all of Rodriguez’s
accusations of factual inaccuracies are misplaced and not proper grounds for
dismissal. He will have a chance to prove up his competing version of the facts during

discovery.
F. Contract between Grado and MIS.
As Plaintiffs point out, it’s not clear from Rodriguez’s Motion whether he “is
arguing [CdEO] has no standing to pursue its claims against him, or that it is not the
real party in interest.” (Doc. 38, #309). But either way, as Plaintiffs also note, the
Court previously handled and rejected similar arguments (albeit from other

Defendants and concerning the Third-Party Beneficiary Agreement rather than the
Purchase Agreement). (See Doc. 33, #243–46). That same analysis applies with equal
force here. Therefore, Rodriguez’s argument fails.
G. Corporate Veil Argument.
Rodriguez claims he acted in his corporate capacity and should receive the

protections of “the corporate veil of [MIS].” (Doc. 32, #231–32). But much like co-
Defendant Refaei, “all allegations discussing [Rodriguez’s] actions are best
understood as alleging that he took personal actions that harmed Plaintiffs.” (Doc.
33, #246; see also Doc. 11, #75 (“Rodriguez, personally and [on] behalf of MIS,
represented to Dr. Grado and [CdEO] …”), 77 (“Rodriguez … accepted full payment
[and] never delivered the LINAC.”)). Accordingly, “the Court declines to analyze those
issues because the plausible inferences drawn from the Amended Complaint permit

the Court to conclude for the purposes of a Rule 12(b)(6) motion” that Plaintiffs sued
Rodriguez “for his personal actions.” (Doc. 33, #248 n. 9). Like his co-Defendants,
Rodriguez may re-raise these arguments at the summary-judgment stage and
reference evidence to support his claims that he acted in his corporate capacity. (Id.

a #247–48).
* * *
Altogether, Rodriguez argued for the Court to wholesale dismiss Plaintiffs’
Amended Complaint; instead, the Court wholesale rejects his motion. Rodriguez’s
arguments are underdeveloped. And while the Court can perhaps conceive of various
arguments under which he may have prevailed, “under the party-presentation
principle, the Court cannot enter the business of making arguments for parties.”

Cincinnati Enquirer v. United States Dep’t of Just., No. 1:23-cv-682, 2025 WL 71677,
at *6 (S.D. Ohio Jan. 10, 2025) (quotation omitted); cf. Sineneng-Smith, 590 U.S. at
375–76. That is true of pro se litigants, just like any other litigant. See Young Bok
Song v. Gipson, 423 F. App’x 506, 510 (6th Cir. 2011) (“While courts are properly
charged with protecting the rights of all who come before it, that responsibility does
not encompass advising litigants as to what legal theories they should pursue.”).

H. Entry of Default Against MIS.
The pleadings are now settled and discovery is set to begin for three of four of
Defendants in this suit. What about the fourth? Recall that, after an arduous path to
effectuate service, Plaintiffs served MIS on October 2, 2024. (Doc. 31; see also Docs.
25, 29). MIS had until October 23, 2024, to answer. (Doc. 31). It didn’t do so.
When a defendant fails to “plead or otherwise defend” in a timely manner, Fed.
R. Civ. P. 55(a), a plaintiff must take two steps to advance an action. First, the
plaintiff must seek an entry of default from the Clerk of Court. Fed. R. Civ. P. 55(a);

S.D. Ohio Civ. R. 55.1(a). Second, after the Clerk enters default against a defendant,
the plaintiff must then move for default judgment within a reasonable time
thereafter. Fed. R. Civ. P. 55(b); S.D. Ohio Civ. R. 55.1(b).
Plaintiffs have done the former, but not the latter. On November 13, 2024,
Plaintiffs applied to the Clerk to enter default against Defendant MIS. (Doc. 34). The
Clerk filed an entry of default a few days later. (Doc. 37). At that point in time, MIS
was several weeks late in failing to answer. (See Doc. 31).

Now, it’s been several months since the Clerk entered default against MIS, but
Plaintiffs have yet to move for default judgment. So Plaintiffs must take the second
step if they wish to advance their claims against MIS. Otherwise, the Court will find
Plaintiffs have failed to prosecute their claims against MIS. Accordingly, the Court
ORDERS Plaintiffs, within twenty-one days (on or before August 26, 2025), to
either (1) move for default judgment, or (2) show good cause in writing why the Court

should not find they’ve failed to prosecute their claims against MIS.
CONCLUSION
For the reasons given above, the Court DENIES Rodriguez’s Motion to
Dismiss (Doc. 32). Because Defendant MIS is in default, the Court also ORDERS
Plaintiffs to either (1) move for default judgment, or (2) show good cause in writing
why the Court should not find they’ve failed to prosecute their claims against MIS
within twenty-one days (on or before August 26, 2025). Consistent with this
Opinion and Order, the Court will reach out to the parties to set an in-person hearing
concerning the arbitration issue.
SO ORDERED.

August 5, 2025
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

26

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11114890. Public record. Not legal advice.