United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER ON DEFENDANTS'
MOTION TO DISMISS AND MOTION TO AMEND
CAMERON MCGOWAN CURRIE Senior United States District Judge
this action, Plaintiff Rhonda Meisner
(“Plaintiff”) seeks recovery from her former
employers, Zymogenetics, Inc. and Zymogenetics,
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. 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.
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. 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. ECF No. 48.
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.
Motion to Dismiss
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).
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.
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.
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.
Federal Pleading Standard
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
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
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 ...