United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER ADOPTING REPORT
AND RECOMMENDATION ON MOTION TO REMAND (ECF
NO. 15) AND MOTION TO DISMISS (ECF NO. 5)
AND ADDRESSING MOTION FOR SANCTIONS (ECF NO.
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
this action, Plaintiff Rhonda Meisner
(“Plaintiff”) seeks recovery for claims arising
out of her prior employment and two earlier cases related to
that employment: Meisner v. Zymogenetics, Inc., C/A
No. 3:12-684-CMC (“Meisner I”); and
Meisner v. Zymogenetics, Inc., C/A No. 3:15-3523-CMC
(“Meisner II”). Like Meisner II,
the present action (“Meisner III”)
originated in state court and was removed based on the
assertion of diversity jurisdiction. Also like Meisner
II, whether diversity exists depends, in part, on
arguments non-diverse Defendants (attorneys who provided
representation in the prior cases) were fraudulently joined.
matter is before the court on Plaintiff's motion to
remand (ECF No. 15) and Defendants' motions to dismiss
(ECF No. 5) and for sanctions (ECF No. 6). For reasons
explained below, the motion to remand is denied, the motion
to dismiss is granted, and the motion for sanctions is
granted in part and denied in part.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(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 August 29, 2019, the Magistrate
Judge issued a Report recommending Plaintiff's motion to
remand be denied and Defendants' motion to dismiss be
granted. ECF No. 26. The Report declined to make a
recommendation on the motion for sanctions. Id. at
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 September 12, 2019. ECF No. 29. Defendants
filed a reply on September 26, 2019. ECF No. 30. The matter
is now ripe for resolution.
de novo review of Plaintiff's objections, the court
agrees with the recommendations in the Report and the
analysis as supplemented in this Order. Accordingly, the
court adopts and incorporates the Report by reference, denies
Plaintiff's motion to remand, and grants Defendants'
motion to dismiss. See Discussion §§
I-III. The court grants the motion for sanctions to the
extent it seeks attorneys' fees and expenses and denies
it in other respects, albeit with a warning the court may
enter a pre-filing injunction should the sanction of
attorneys' fees and expenses fail to deter Plaintiff from
pursuing further duplicative, frivolous, or vexatious
litigation relating to issues addressed in Meisner
I, II, or III. See Discussion
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).
Challenges to Removal Procedure
extent Plaintiff's objections suggest possible procedural
defects in removal, they are time-barred because her motion
to remand was filed more than thirty days after removal.
See 28 U.S.C § 1447(c) (“A motion to
remand . . . on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after
the filing of the notice of removal.”); ECF No. 1
(notice of removal filed May 29, 2019); ECF No. 15 (motion to
remand filed July 8, 2019). Plaintiff also fails to suggest
any non-frivolous procedural deficiency. For example, whether
Jackson Lewis P.C. was served is irrelevant as it is not
named as a Defendant. Likewise, Defendants were not obligated
to file proofs of service as such documents are not
“served” on them. See 28 U.S.C. §
1446(a) (requiring removing party to file “copies of
all process, pleadings and orders served upon him or
them” (emphasis added)). Finally, a failure to
attach all state-court filings required to be attached can be
cured. E.g. 14C Charles Alan Wright et al., Federal
Practice and Procedure § 3733 (4th ed.) (explaining
failure to file all state court papers with the notice of
removal is “curable in the federal court”).
Plaintiff's objections, therefore, fail to the extent
based on alleged procedural deficiencies.
Fraudulent Joinder of Attorney Defendants
she offers no actual argument, Plaintiff's objections
suggest disagreement with the recommendation the court find
the non-diverse, attorney Defendants were fraudulently
joined. The court has reviewed the Report's analysis of
this issue de novo and agrees with both the analysis and
recommendation. See Report at 5-10. The court,
therefore, adopts and incorporates the Report's
fraudulent joinder analysis.
Dismissal of Claims Against Diverse Defendants
objections also suggest disagreement with the recommendation
her claims be dismissed because they are precluded by the
decision in Meisner II. These objections are
overruled for reasons explained below.
Report agrees with Defendants' argument
“Meisner's claims are precluded by the previous
litigation in Meisner II.” ECF No. 26 at 11.
It notes “[t]he issues raised by Meisner . . . were
previously rejected . . . in an Opinion and Order denying
Meisner's motion to vacate in Meisner II[,
]” which “specifically rejected Meisner's
argument about the citizenship of the corporate
defendants.” Id. Based on that Opinion and
Order, the Report concludes Meisner “fails to plausibly
allege that the defendants injured her by lying or
misrepresenting the citizenship of the corporate