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Meisner v. Zymogenetics, Inc.

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

November 25, 2019

Rhonda Meisner, Plaintiff,
v.
Zymogenetics, Inc.; Zymogenetics, LLC; Bristol Myers Squibb, Inc.; Tracey Caldarazzo; Jeff Fortino; Stephanie Lewis, individually, in her capacity as managing principal of Jackson Lewis, LLP, and in her capacity as managing principal of Jackson Lewis, P.C.; Ellison McCoy, individually and in his capacity as office litigation manager of Jackson Lewis P.C.; John Doe 1-10; Jane Doe 1-10, Defendants.

          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. 6)

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         Through 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”).[1] 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.

         The 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.

         PROCEDURAL BACKGROUND

         In 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 12 n.4.

         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 September 12, 2019. ECF No. 29. Defendants filed a reply on September 26, 2019. ECF No. 30. The matter is now ripe for resolution.

         After de novo review of Plaintiff's objections, the court agrees with the recommendations in the Report and the analysis as supplemented in this Order.[2] 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 § IV.

         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).

         DISCUSSION

         I. Challenges to Removal Procedure

         To the 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.

         II. Fraudulent Joinder of Attorney Defendants

         While 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.

         III. Dismissal of Claims Against Diverse Defendants

         Plaintiff's 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.

         Recommendation.

         The 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 defendants.”

         Present ...


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