Kim v. Progressive Northern Insurance Company

Filing 13

ORDER ADOPTING 11 REPORT AND RECOMMENDATION of Magistrate Judge Bristow Marchant DISMISSING the complaint WITH PREJUDICE and without service of process. Signed by Honorable Richard M Gergel on 2/27/2017. (sshe, )

IN THE UNITED STATES DISTRICT COURTRfCElVEQ CLERK'S OFFICE
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
2011 FEB 21 P 12: 2 q
Insun Kim,

)
)
Plaintiff,
)
)
v.
)
)
Progressive Northern Insurance Company, )
)
Defendant.
)

Civil Action No. 2: 16-3397.I.R.N{o.- COURT

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ORDER AND OPINION

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that this action be summarily dismissed without 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.
I.

Background
Plaintiff 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 ofthe 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-I00674 (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

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accept" the judgment of the Court and that "I will re file also that 1 can get my compensation."
Letter, Civ. No. 2:16-2561-RMG, Dkt. No. 23. As promised, on October 14,2016, Plaintiffrefiled
the same claim against the same Defendant in the present action. Plaintiff seeks $22,100,000 in
damages. (Dkt. No.1 at 5.) On February 7, 2017, the Magistrate Judge recommended summary
dismissal with prejudice on res judicata grounds. (Dkt. No. 11.) Plaintiff has filed no objections
to the Magistrate Judge's recommendation.
II.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." ld.

III.

Discussion
Plaintiff admits this action is a duplicate of her previous action that was dismissed with

prejudice because it was an attempt to obtain a different result than she obtained in state court.
Plaintiff also admits that she filed this action because she is unwilling to abide the previous
judgment of this Court. Letter, Civ. No. 2: 16-2561-RMG, Dkt. No. 23. It was her hope that this
action would be assigned to a different judge who might reach a different conclusion on the merits
of her claim. (See Dkt. No. 1-2 (Plaintiff informing the Court, "1 do not want the people who
worked on my case no more ever again. 1 also wish my case paper never to be seen by the same
people again").) Plaintiff fails to understand the binding nature ofthe judgment of a court having
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jurisdiction over a claim. Plaintiff's claim was litigated in state court and this Court will not give
her a different result no matter how many times she files this same claim. For the reasons set forth
in the Report and Recommendation, this action must be dismissed with prejudice as barred by res
judicata.

Further, the Court notifies Plaintiffthat any future attempt to refile this claim in federal

court may result in a pre-filing injunction under 28 U.S.C. § l651(a). See Cromer v. Kraft Foods
N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004).

IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation (Dkt. No.

11). The complaint is DISMISSED WITH PREJUDICE and without service of process.
AND IT IS SO ORDERED.

United States District Court Judge
February 27, 2017
Charleston, South Carolina

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