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Meisner v. Zymogenetics, Inc.

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

September 15, 2016

Rhonda Meisner, Plaintiff,
Zymogenetics, Inc, a wholly-owned subsidiary of Bristol Myers Squibb, Inc; Zymogenetics, LLC, a wholly owned subsidiary of Zymogenetics, Inc.; Bristol Myers Squibb, Inc.; Tracey Caldarazzo; Jeff Fortino; John Does and Jane Does 1-10 Whose name is unknown or as yet discovered, Defendants.


          CAMERON MCGOWAN CURRIE Senior United States District Judge

         Through this action, Plaintiff Rhonda Meisner (“Plaintiff”) seeks recovery from her former employers, Zymogenetics, Inc. and Zymogenetics, LLC[1]; their parent company Bristol Myers Squibb, Inc. (“BMS”); two former employees of Zymogenetics, Tracey Caldarazzo and Jeff Fortino; and John and Jane Does 1-10 (collectively “Defendants”). ECF No. 1, Attachment 1. She alleges breach of contract against Zymogenetics, tortious interference with contract against Tracey Caldarazzo, negligent retention of Caldarazzo (presumably by Zymogenetics), and civil conspiracy against Jeff Fortino and Bristol Myers Squibb[2]. The matter is before the court on Defendants' Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 8.

         In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), (g), D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation (“Report”). On June 2, 2016, the Magistrate Judge issued a Report recommending that Defendants' motion to dismiss be granted. ECF No. 34. Specifically, the Magistrate Judge recommended granting dismissal based on the doctrine of res judicata and, in the alternative, based on the statute of limitations.[3] The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so. Plaintiff filed objections on June 20, 2016. ECF No. 37. Defendants filed a reply on July 6, 2016. ECF No. 39. Plaintiff was granted permission to file a sur reply, and did so on July 28, 2016[4]. ECF No. 48.

         While the Motion to Dismiss was pending, but after the Magistrate Judge issued her Report, Plaintiff filed a Motion to Amend her Complaint. ECF No. 50. Defendants filed a response in opposition on August 29, 2016. ECF No. 51. Plaintiff filed her reply on September 9, 2016. ECF No. 52. As the motion to amend is necessarily intertwined with the motion to dismiss, both will be addressed in this Order.[5]

         I. Motion to Dismiss

         a. Standard

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'”) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         b. Discussion

         Plaintiff presents several objections to the Report, essentially arguing that the Magistrate Judge's findings regarding her claims were erroneous and that all claims should survive Defendants' motion to dismiss. The objections are discussed below in turn.

         i. Background

         Plaintiff first argues that several facts are inconsistent with the previous litigation. She alleges that Defendants are conflating her current slander claim with the one from the first suit, which in fact are two different instances of slander with different legal claims based on the second slander. Plaintiff argues the claims relating to the second slander could not have been brought in the first suit because she was not aware of it until a deposition in Plaintiff's prior lawsuit in this court, C/A No. 3:12-00684-CMC (“Meisner I”). Therefore, Plaintiff argues, res judicata does not apply because she did not learn the facts that form the basis of the new claims until after the time for amendment of her complaint in Meisner I had expired.[6]

         It is well established that res judicata applies not only to causes of action of which Plaintiff was aware, but also to all which arose out of the same transaction as the first suit. Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986) (“For purposes of res judicata, it is not necessary to ask if the plaintiff knew of his present claim at the time of the former judgment, for it is the existence of the present claim, not party awareness of it, that controls.”). It is therefore unpersuasive that, at the time Meisner I was filed, Plaintiff was unaware of the second alleged slander she assigns to Ms. Caldarazzo. The facts and any associated claims existed at the time of the first suit and Plaintiff learned of the second alleged slander during the pendency of Meisner I. Further, Plaintiff raised the facts and issues underlying the instant claims in her opposition to Defendants' motion for summary judgment in Meisner I. Just because the court did not consider these legal claims in the first suit does not mean that Plaintiff may bring them now. Plaintiff's objections regarding when she became aware of certain claims and her “opportunity to litigate” them are unavailing.

         ii. Federal Pleading Standard

         Plaintiff's next objection centers on the federal pleading standard as set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), as she seeks to amend the complaint to meet these standards. However, the Magistrate Judge did not decide the motion to dismiss on the basis that the Complaint did not meet the federal pleading standards; in fact, the Magistrate Judge specifically noted that pro se complaints were to be liberally construed. The Magistrate Judge determined that Plaintiff's claims were barred due to res judicata, not because of a failure to meet federal pleading standards.[7]

         iii. Res Judicata

         Plaintiff argues that res judicata does not apply to her claims, initially arguing that her first case was dismissed on procedural grounds, so that res judicata would not apply, and that South Carolina law, instead of federal law, should apply because her case was initially filed in state court. This court disagrees with both assertions for the reasons stated below and in the Magistrate Judge's Report.

         As an initial matter, this court has determined, consistent with the Magistrate Judge's Report, that federal res judicata law applies to the Meisner suits. While state res judicata law may apply when the first action is adjudicated in federal court based on diversity jurisdiction (see Q Int'l Courier Inc. v. Smoak, 441 F.3d 214, 218 (4th Cir. 2006)), the first suit here was filed in federal court based on federal question jurisdiction (for Plaintiff's federal discrimination claims). Taylor v. Sturgell, 553 U.S. 880, 891 (2008) (“For ...

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