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Jane Doe 202a v. McGowan

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

February 13, 2017

Jane Doe 202a, Plaintiff,
v.
Leigh Ann McGowan, individually; Charles Francis Wholleb, individually; Anthony M. Doxey, individually; Michael Kouris, individually; City of North Charleston; Sandra J. Senn; Senn Legal, LLC; and Charleston County, Defendants.

          ORDER AND OPINION

          Richard Mark Gergel, United States District Court Judge

         I. Background

         This matter is before the Court on the Report and Recommendation ("R. & R.") of the Magistrate Judge (Dkt. No, 33) recommending that the Court grant with prejudice Defendants Sandra J. Senn and Senn Legal, LLC's motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 8.) Plaintiff filed objections to the R. & R. on January 23, 2017, and Defendants Sandra J. Senn and Senn Legal, LLC (the "Senn Defendants") filed a reply. (Dkt. Nos. 35, 37.) This Court adopts the R. & R. as the order of the Court and grants Defendants Sandra J. Senn and Senn Legal, LLC's motion to dismiss. (Dkt. No. 8.)

         Plaintiff has brought causes of action against the Senn Defendants under 42 U.S.C. § 1983 and for defamation under state law. (Dkt. No.l ¶¶ 227-232, 246-258.) Plaintiff has brought a related case against the Senn Defendants and others (Jane Doe 202 a v. Cannon et al, 2:16-cv-00530-RMG-MGB) and concedes that the defamation claims brought against the Senn Defendants here are the same as the claims in that suit. Plaintiff filed the same set of objections referenced below to the Serm Defendants' motion to dismiss in that parallel case. Some of Plaintiffs objections in that document are only applicable to Magistrate's Report and Recommendation for the Senn Defendants' motion to dismiss in that case.

         II. Facts

         Plaintiff alleges that she was wrongfully arrested in her home for assaulting a police officer in violation of a North Charleston City Ordinance after a warrantless intrusion into her home on March 27, 2014. (Dkt. No. 1.) Plaintiff alleges multiple violations of her constitutional rights in connection with the warrantless entry and arrest.

         Plaintiff alleges that Sandra J. Senn is a private citizen and Senn Legal, LLC is a domestic for-profit limited liability corporation with Sandra J. Senn as its principal. (Id. ¶¶5-7.) In 2014, the City of North Charleston and Defendants McGowan, Wholleb, Doxey, and Kouris hired the Senn Defendants to defend them in a legal action brought by the Plaintiffs mother.[1](Id. ¶ 140.) After retaining the Senn Defendants, the City of North Charleston and Defendants McGowan, Wholleb, Doxey, and Kouris "began a series of retaliatory acts against" the Plaintiff and her mother. (Id. ¶ 141.) Plaintiff alleges that Sandra J. Senn joined the other Defendants in retaliation by defaming the Plaintiff in writing. (Id.) Plaintiff alternatively alleges that Defendant Senn acted on her own behalf. (Id. ¶ 142.)

         Plaintiff alleges that the Senn Defendants falsely accused her of criminal acts, falsely denied that she sustained constitutional abuses, and disparaged Plaintiff to third persons in writing. (Id. ¶ 143.) Plaintiff alleges that Sandra J. Senn defamed Plaintiff both personally and on behalf of her clients. (Id. ¶¶ 246-58.) Plaintiff alleges that, because she asserted her rights, Defendant Senn wrote to third parties accusing the Plaintiff of lying, falsely reporting a crime against her, felonious abuse of a vulnerable adult (her mother), and other misconduct. (Id. ¶ 250.) Plaintiff alleges Defendant Senn defamed Plaintiff with actual malice. (Id. ¶¶ 255-256.) Plaintiff alleges that Defendant Senn allowed Defendant McGowan to give false testimony in a deposition. (Id. ¶ 256.) Plaintiff also alleges Defendant Senn is liable under § 1983 for actions she took on behalf of her clients that infringed on Plaintiffs constitutional rights. (Id. ¶¶ 227-232.)

         III. Legal Standard

         On a motion to dismiss under Rule 12(b)(6), a "complaint must be dismissed if it does not allege 'enough facts to state a claim to relief that is plausible on its face.'" Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting BellAtl. Corp. v, Twombly, 550 U.S. 544, 570 (2007)). "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6)... [a court] must determine whether it is plausible that the factual allegations in the complaint are 'enough to raise a right to relief above the speculative level."' Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). "In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party." Stansbury v. McDonald's Corp., 36 F.App'x 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).

         IV, Discussion

         a. Defamation Claims

         For the reasons listed in the R. & R., Plaintiffs defamation claims in this action are precluded as impermissible claim splitting since they are duplicative. Plaintiff has conceded that the defamation claims in this action are the same as the defamation claims in another lawsuit in front of this Court. See Jane Doe 202a v. Cannon et ah, 2:16-cv-00530-RMG-MGB, Dkt. No. 31 at 11. "[A] first lawsuit will bar a second lawsuit when there is: (i) 'an identity of the cause of action in both the earlier and the later suit; and [(ii)] an identity of parties or their privies in the two suits.'" Wellin v. ...


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