United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending that this action be
summarily dismissed with prejudice and without service of
process. For the reasons set forth below, the Court adopts
the Report and Recommendation, and dismisses this action with
prejudice and without service of process. Further, the Court
permanently enjoins Plaintiff from filing any future federal
action asserting the claims raised in the present action.
Insun Kim alleges Defendant Progressive Northern Insurance
Company ("Progressive") failed to pay damages
resulting from an automobile accident on September 7, 2014.
Plaintiff alleges she suffered personal injuries because of
the actions of another driver whom Progressive insured, yet
Progressive refused to settle her claims. Plaintiff
previously brought this same claim in the Charleston County
Court of Common Pleas, which granted Progressive's motion
to dismiss on July 14, 2016. Kim v. Progressive N. Ins.
Co., 2016-CP-100674 (S.C.C.P. July 14, 2016) (judgment
filed the following day). Plaintiff filed a federal action
the next morning, asserting claims for breach of contract,
bad faith refusal to pay benefits under an insurance policy,
negligence, and gross negligence, which the Court dismissed
on res judicata grounds on September 23, 2016.
Kim v. Progressive N. Ins. Co., Civ. No.
2:16-2561-RMG, 2016 WL 5346938 (D.S.C. Sept 23, 2016). On
September 28, 2016, Plaintiff emailed the Court stating that
she would "not accept" the judgment of the Court
and that "I will re file also that I can get my
compensation." Letter, Civ. No. 2:16-2561-RMG, Dkt. No.
23. As promised, on October 14, 2016, Plaintiff refiled the
same claim against the same Defendant. That action was also
dismissed with prejudice as barred by res judicata. Kim
v. Progressive N. Ins. Co., Civ. No. 2:16-3397-RMC, 2017
WL 773546 (D.S.C. Feb. 27, 2017). Plaintiff was admonished
"that any future attempt to refile this claim in federal
court may result in a pre-filing injunction under 28 U.S.C.
§ 1651(a)." Id. at*l.
7, 2017, the Court entered a final order affirming the final
decision of the Commissioner of Social Security wherein
Plaintiff was denied disability benefits. Kim v. Comm
'n Soc. Sec. Admin., Civ. No. 9:16-823-BM (D.S.C.
July 7, 2017). On August 2, 2017, shortly after Plaintiffs
claim for disability benefits was denied, Plaintiff once
again refiled her thrice-dismissed claim arising from the
automobile accident on September 7, 2014. On November 17,
2017, the Magistrate Judge recommended summary dismissal with
prejudice. Plaintiff timely objected to the Report and
Recommendation, arguing that her "lawsuit case was
poorly treated in terms of dismissing the lawsuit case
repeatedly with prejudice." (Dkt. No. 11.)
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 and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional
evidence is committed to its discretion, and any refusal will
be reviewed for abuse." Doe v. Chao, 306 F.3d
170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to
introduce new evidence after the magistrate judge has acted
are disfavored, " though the district court may allow it
"when a party offers sufficient reasons for so
doing." Caldwell v. Jackson, 831 F.Supp.2d 911,
914 (M.D. N.C. 2010) (listing cases).
admits this action is a duplicate of her previous actions
that were dismissed with prejudice because they were attempts
to obtain a different result than she obtained in state
court. Plaintiff admitted that she filed her second federal
action because she was unwilling to abide the previous
judgment of this Court. Letter, Civ. No. 2:16-2561-RMG, Dkt.
No. 23. The Court previously explained to Plaintiff that her
claim was litigated in state court and that this Court will
not give her a different result no matter how many times she
files this same claim. The Court also previously admonished
Plaintiff that future attempts to refile this claim in
federal court would result in a pre-filing injunction under
28 U.S.C. § 1651(a).
Plaintiff has refiled the claim. Plaintiffs claim was
previously dismissed with prejudice three times-once in state
court and twice in federal court. Plaintiff has now filed the
same claim for a fourth time.
determining whether a pre filing injunction is substantively
warranted, a court must weigh all the relevant circumstances,
including (1) the party's history of litigation, in
particular whether he has filed vexatious, harassing, or
duplicative lawsuits; (2) whether the party had a good faith
basis for pursuing the litigation, or simply intended to
harass; (3) the extent of the burden on the courts and other
parties resulting from the party's filings; and (4) the
adequacy of alternative sanctions." Cromer v. Kraft
Foods N. Am., Inc., 390 F.3d 812, 818 (4th Cir. 2004).
Here, Plaintiffs history of filing four duplicative actions
shows a history of vexatious litigation. Plaintiff has no
good faith basis for repeatedly refiling a claim that has
been dismissed with prejudice. Plaintiffs frivolous filings
have imposed a substantial burden on the Court. Plaintiff has
candidly stated her intention to refile this claim until she
obtains a result she likes. Thus, there are no adequate
sanctions other than a prefiling injunction. Finally, a
prefiling injunction limited only to claims previously
dismissed with prejudice is narrowly tailored to Plaintiffs
Court therefore finds that Plaintiff Insun Kim is a vexatious
litigant and, accordingly, Plaintiff Insun Kim is hereby
enjoined permanently from filing any federal action that
asserts claims against Progressive Northern Insurance
Company, or its affiliates, assignees, or successors,
relating to an automobile accident on September 7, 2014.