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Meisner v. Zymogenetics, Inc.

United States District Court, D. South Carolina, Columbia Division

November 25, 2014

RHONDA MEISNER, Plaintiff,
v.
ZYMOGENETICS, INC., a wholly owned subsidiary of Bristol-Myers Squibb, ZYMOGENETICS, LLC, a wholly owned subsidiary of Zymogenetics, Inc., and TRACEY CALDERAZZO, Defendants.

OPINION AND ORDER

CAMERON McGOWAN CURRIE, Senior District Judge.

This matter is before the court on motion of Plaintiff Rhonda Meisner ("Meisner") to alter or amend the judgment pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. ECF No. 296. The challenged judgment was entered based on the Opinion and Order of September 22, 2014 ("Dispositive Order"). ECF No. 288 (Dispositive Order); ECF No. 289 (Judgment). The Dispositive Order (1) affirmed the Magistrate Judge's denial of Meisner's motions to amend her complaint and to reconsider denial of her motion to amend, (2) adopted in full the Magistrate Judge's Report and Recommendation ("Report") on the parties' cross-motions for summary judgment, (3) granted Defendants' motion for summary judgment on all claims, (4) denied Meisner's cross-motion for summary judgment, and (5) addressed other pending motions.[1] See ECF No. 288 (Dispositive Order); ECF No. 257 (Report). Meisner's present motion challenges various aspects of the Dispositive Order. For reasons set forth below, Meisner's motion to alter or amend the judgment is denied.

STANDARD

In the caption and opening paragraph of her motion to alter or amend, Meisner indicates that she is relying on both Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. ECF No. 296 at 1. As Meisner notes, a court may alter or amend a judgment under Rule 59(e) in the following three circumstances: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available previously; or (3) to correct a clear error of law or prevent manifest injustice. See ECF No. 296 at 5 (addressing only Rule 59(e) in discussion of standards); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (setting out three grounds for altering or amending a judgment). To the extent she relies on Rule 59(e), Meisner appears to rely solely on the third ground. ECF No. 296 at 5 (stating, in discussing standard, that court "relied on perjured declarations and evidence that conflicted with the previous findings of the Magistrate Judge during status hearings, " failed to rule on Meisner's arguments that Defendants submitted perjured declarations, and should reconsider its prior decision "to prevent a manifest injustice").

Meisner does not address the standards for a Rule 60(b) motion in her opening memorandum or otherwise address that rule beyond her initial reference to it. She does, however, state in her reply that she is relying on Rule 60(b) to the extent she seeks modification of the judgment based on allegations defense counsel suborned perjury. ECF No. 302 at 1-3 (reply argument based, in part, on cases applying Rule 60(b) as interpreted under the South Carolina Rules of Civil Procedure); id. at 6 ("To get a ruling on the intrinsic and extrinsic fraud is a proper reason... to request a ruling via a Rule 59(e) and 60(b) motion.").[2]

DISCUSSION

I. Allegations of Perjured Declarations

Meisner first argues that the court erred in failing to rule on her allegations that Defendants submitted and relied on perjured declarations signed by her former supervisor, Jeff Fortino ("Fortino").[3] ECF No. 296 at 1, 6-10 (arguing defense counsel suborned perjury with respect to one or more of these declarations). Meisner's premise, that the court has not ruled on this issue, is in error.

Although the court also supplemented the Report (primarily to address Meisner's objections), it adopted the Report in full. ECF No. 288 at 12 ("Having fully considered both the evidence and arguments, the court adopts the recommendations of the Report for the reasons stated in the Report and as further addressed below."). The Report addressed Meisner's allegations of suborned perjury as follows:

As an initial matter, Meisner appears to argue that the defendants' motion for summary judgment should be denied based on her allegations that Fortino's declaration consists of perjured statements and that defendants' counsel has aided and suborned it. The court has reviewed all of Meisner's alleged support for such serious allegations and finds them to be either wholly without merit or a tenuous stretch at best.

ECF No. 257 at 7 n.5. In light of the court's adoption of the Report and its reasoning, this footnote is part of the court's ultimate decision.

Meisner's argument is also unpersuasive to the extent it challenges the substance of this ruling, At best, Meisner points to evidence which might conflict with Fortino's stated recollections of certain events (thus raising a dispute of fact as to those issues), one misstatement he corrected through a subsequent declaration, and one arguable misstatement that suggests a dispute as to symantics.[4]

None of these conflicts or misstatements suggest perjury by Fortino, much less subornation of perjury by defense counsel. Further, as Defendants note, neither the Report nor the Dispositive Order rely on any of the allegedly false statements in Fortino's declarations. See ECF No. 300 at 2-3 n.2. It follows ...


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