Jane Doe 202a v. Cannon et al
ORDER AND OPINION adopting 57 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 8 Motion to Dismiss. Plaintiff's defamation claims against the Senn Defendants are dismissed WITHOUT PREJUDI CE. If Plaintiff wishes to amend the Complaint to cure deficiencies in these pleadings, she must do so WITHIN 10 DAYS. Plaintiff's 42 U.S.C. 1983 and conspiracy claims against the Senn Defendants are dismissed WITH PREJUDICE. This Order has no effect on any claims in the parallel action (Jane Doe 202a v. Leigh Anne McGowan, 2: 16-cv-00777-RMG-MGB). Signed by Honorable Richard M Gergel on 2/14/2017.(ssam, )
USOC CLERK. CHARLESTON. Sc
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Jane Doe 202a,
20ll FEB' 4 Pt1 I: 31
Case No 2: 16-cv-00530-RMG
Al Cannon, Sheriff of Charleston County,
individually and in his official capacity,
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation ("R. & R.") of the
Magistrate Judge (Dkt. No. 57) recommending that the Court grant 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 amended objections to the R. & R. on January 23, 2017,
and Defendants Sandra 1. Senn and Senn Legal, LLC (the "Senn Defendants") filed a reply.
(Dkt. Nos. 67, 71.) 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 a related case against the Senn Defendants and others (Jane Doe
202a v. Leigh Anne McGowan, et aI., 2:16-cv-00777-RMG-MGB). Plaintiff concedes that the
defamation claims brought against the Senn Defendants here are the same as the defamation
claims in that suit. Plaintiff filed the same set of objections to the Senn Defendants' motion to
dismiss in that parallel case.
The Court adopts the facts as outlined in the R. & R. (Dkt. No. 57 at 2-5.)
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 Bell At!. 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)).
a. Defamation Claims
As outlined in the R. & R., Plaintiff has failed to state a claim against the Senn
Defendants for defamation because her Complaint does not state with specificity the time, place,
medium, and listener of the alleged defamatory statements. English Boiler & Tube, Inc. v. W C.
Rouse & Son, Inc., No. 97-2397, 1999 WL 89125, 172 F.3d 862 (Table) (4th Cir. 1999) (citing
Caudle v. Thomason, 942 F.Supp. 635, 638 (D.D.C.1996) ("in order to plead defamation, a
plaintiff should allege specific defamatory comments [including] 'the time, place, content,
speaker, and listener of the alleged defamatory matter. "') The Court will dismiss the defamation
claims without prejudice; Plaintiff may file a motion to amend her complaint with a proposed
amended complaint within ten days of this Order. Plaintiff should consider whether the absolute
privilege for statements related to judicial proceedings would render any proposed amendment
Plaintiffs Objections to the Magistrate's Recommendation
This Court reviews de novo any part of the R. & R. to which there has been proper
objection. Fed. R. Civ. P. 72(b)(2). Plaintiff claims that the "weakness of the report and
recommendation is that [it] requires the Plaintiff to allege detail of Senn's representative acts
which the Plaintiff cannot know beyond what is already alleged [and] fails to distinguish
between Senn ability [sic] to have representative capacity, as compared to the inability of Senn
Legal, LLC, to have any representative capacity." (Dkt. No. 67 at 2-3). If Plaintiff properly states
a claim for defamation in an amended Complaint, this Court will then consider whether any
privilege applies to the Senn Defendants, individually or collectively. Plaintiff has thus far failed
to state a claim for any tort against either of the Senn Defendants acting in any capacity.
Plaintiff apparently intends to argue that "To the extent any of Senn's tortious acts was
taken on behalf of clients who are not defendants in this case, her acts would be on behalf of
Senn Legal, LLC but no representative capacity would apply to this case. Nor would any
privilege issues apply in this case." (Id. at 5.) The Court encourages Plaintiff to closely review all
available legal authorities before pursuing the argument that Sandra J. Senn may not be protected
by the absolute privilege for statements made while she was representing other clients who are
not defendants in this case. See Restatement (Second) of Torts § 586 (1977) ("An attorney at law
is absolutely privileged to publish defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as
a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the
b. 42 U.S.C. § 1983 Claim
Plaintiff has failed to state a claim against the Senn Defendants under 42 U.S.C. § 1983
because she not sufficiently alleged that she was deprived of a constitutional right by a person
acting under color of state law. Dowe v. Total Action Against Poverty in Roanoke Valley, 145
F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983). A private attorney representing state
actors does not act under color of state law for § 1983 purposes. Jenkins v. McDonald Patrick
Poston Hemphill & Roper LLe, et al., No. 5:14-cv-04498-RMG-KDW at *3 (D.S.C. Feb. 5,
2015) Rep't & Recommendation adopted, No. 5: 14-cv-04498-RMG-KDW at *3 (D.S.C. Mar. 3,
2015) (citing Limehouse v. Delaware, 144 F. App'x 921, 923 (3d Cir. 2005».
i. Plaintiff's Objections to the Magistrate's Recommendation
Plaintiffhas objected to the R. & R. insofar as it determined that Defendant Senn was not
a state actor or acting under color of state law. Plaintiff has alleged only that Defendants Farmer,
Dyer Walters, McLauchlan, and Calvert are liable under § 1983, and that, to the extent those
defendants are not liable, Sandra J. Senn is "alternatively" liable if she "acted in a representative
capacity for one or more other Defendants under color of state law." (Dkt. No.1 at
Plaintiff acknowledges that she has made no § 1983 claims against Defendant Senn in her
individual capacity. (Dkt. No. 67 at 6.)
Plaintiff argues that if this litigation reveals that
Defendant Senn played a role in destroying evidence, she may have done so "in a representative
capacity for state actors" so her actions "will bear on the Second Cause of Action as part of the
conspiracy allegations." (Id.)
To the extent Plaintiff is asking the Court to keep the Senn Defendants in this lawsuit on
a conspiracy theory (and Plaintiff has provided no legal support for any other theoryl), she has
failed to meet her pleading burden to do so. Plaintiff can bring a private attorney into a civil
rights law suit on a conspiracy theory, Tower v. Glover, 467 U.S. 914, 919-20 (1984), but
Plaintiff must allege that the private attorney was "a willful participant in joint action with the
state or its agents." Dennis v. Sparks, 449 U.S. 24, 27 (1980) (allegation that private persons
conspired with judge in judicial bribery scheme sufficient for § 1983 purposes). Plaintiff also
must "assert facts from which this Court could infer a conspiratorial agreement." Wiggins v. 11
Kew Garden Court, 497 F. App'x 262, 264 (4th Cir. 2012). A bare assertion of conspiracy is
insufficient. Id. Plaintiff has not alleged facts sufficient to indicate that either Senn Defendant
had an agreement with other defendants (who were acting under the color of state law) to deprive
Plaintiff of her rights. Plaintiffs allegation at
256 of the Complaint that the Senn Defendants
allowed Defendant McGowan to falsely testify that she had not been deposed before when they
had deposed her in a previous case does not indicate to the Court that the Senn Defendants
conspired with Defendant McGowan to deprive Plaintiff of her constitutional rights in this case.
c. Conspiracy Claims
Plaintiff complains that it is not clear whether the Magistrate's R. & R. was intended to
affect claims against the Senn Defendants in the Second cause of action (Conspiracy) in addition
to the Fifth cause of action (the § 1983 claims discussed above). (Dkt. No. 67 at 6.) Plaintiff
insists now, in her objections to the R. & R., that she intended for the Second Cause of action in
her Complaint to allege conspiracy claims against the Senn Defendants. It is not obvious to this
1 Plaintiff cites only to Banks v. M u.s. c. , 444 S.E.2d 519, 521 (S.C. 1994) in her objections here. Banks
provides no support for Plaintiff's position.
Court that the Second cause of action in the Complaint contained conspiracy claims against
either Senn Defendant, but, for the reasons discussed above, Plaintiff has failed to allege facts
sufficient to state a conspiracy claim against either of the Senn Defendants.
Plaintiff has clarified in her objections to the R. & R. that she is not seeking any recovery
for spoliation claims. (Dkt. No. 67 at 7-8.) This Court need not consider at this time whether a
future spoliation instruction may be proper.
For the reasons above, the Court GRANTS the Senn Defendants' motion to dismiss.
Plaintiffs defamation claims against the Senn Defendants are dismissed WITHOUT
PREJUDICE. If Plaintiff wishes to amend the Complaint to cure deficiencies in these pleadings,
she must do so WITHIN 10 DAYS.
Plaintiffs 42 U.S.C. 1983 and conspiracy claims against the Senn Defendants are dismissed
WITH PREJUDICE. This Order has no effect on any claims in the parallel action (Jane Doe
202a v. Leigh Anne McGowan, 2: 16-cv-00777-RMG-MGB).
AND IT IS SO ORDERED.
United States District Court Judge
February It(, 2017
Charleston, South Carolina
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