Lim v. Tisack et al
MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 3/30/2017. (bw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
GAEL TISACK, et al.,
Civil Action No. 7:16-cv-00029
By: Elizabeth K. Dillon
United States District Judge
Plaintiff Chang Lim, proceeding pro se, brought this action against a group of persons
and entities related to Lim’s former employer (collectively defendants), alleging retaliation
under Title VII of the Civil Rights Act of 1964 (Title VII) and various state law claims. Those
claims are based on defendants’ collection on a foreign judgment against Lim in Virginia and
statements that defendants made in unemployment proceedings in Virginia and Wisconsin. (See
generally Am. Compl. (Compl.), Dkt. No. 24.) Before the court are defendants’ motions to
dismiss for lack of jurisdiction and failure to state a claim (Dkt. No. 25), their motion to dismiss
for lack of prosecution (Dkt. No. 32), and their motion for sanctions pursuant to Fed. R. Civ. P.
11 (Dkt. No. 3). Lim has also filed a motion for the court to reconsider its dismissal of certain
defendants and a motion for a default judgment against those defendants. (Dkt. Nos. 40, 41.)
For the reasons stated herein, the court will grant defendants’ motion to dismiss for failure to
state a claim, deny their remaining motions, and deny Lim’s motions.
The facts recited here come from two sources: the allegations of Lim’s complaint and the
public records of Lim’s previous litigation, made part of the record as exhibits to defendants’
motion for sanctions. The court takes judicial notice of those public records and will construe
those documents and Lim’s allegations in the light most favorable to him. Zak v. Chelsea
Therapeutics Int’l, Ltd., 780 F.3d 597, 607 (4th Cir. 2015); Coleman v. Md. Court of Appeals,
626 F.3d 187, 189 (4th Cir. 2010).
A. The Michigan Litigation
The dispute in this case began with a lawsuit that Lim filed against his former employer,
Terumo Heart, Inc. (THI), and related parties in the United States District Court for the Eastern
District of Michigan in 2011. THI, a manufacturer of medical devices that was in the process of
securing FDA approval on a device, hired Lim as a regulatory affairs manager in March 2010.
(Compl. ¶¶ (9)–(10), 3–5.)1 While employed at THI, Lim complained about the company’s
regulatory compliance and expressed concerns that some of THI’s medical devices endangered
patients. (Id. ¶¶ 8–10.) Gael Tisack, THI’s compliance officer, told Lim that his concerns were
“false,” and Lim was subsequently terminated on October 1, 2010. (Id. ¶¶ 10–11.)
After his termination Lim sued a variety of persons and entities related to THI (id. ¶ 15),
claiming that THI had discriminated and retaliated against him based on his race, color, national
origin,2 and opposition to THI’s regulatory non-compliance. His suit alleged Title VII
discrimination and retaliation, violation of the Michigan Whistleblowers’ Protection Act, and
various state law claims. (Id. ¶ 15; Lim v. Terumo Corp., Nos. 14-1513/1573, at 1, 5–9 (6th Cir.
Apr. 2, 2015) (reproduced at Dkt. No. 3-1, at 43).) THI counterclaimed, asserting a claim of
Lim’s complaint has two sets of numbered paragraphs. The allegations of his “Jurisdiction and Venue”
and “Parties” subheadings are cited in parentheses; non-parenthetical citations refer to sections entitled “Facts” and
“Cause of Action.”
Although Lim’s complaint does not allege his race or ethnicity, it appears from other court records that
Lim is from South Korea and identifies his race as Asian.
unjust enrichment based on allegations that Lim had misrepresented his qualifications and work
history. (Compl. ¶ 16; Lim, Nos. 14-1513/1573, at 2.)
After discovery, the court granted summary judgment in favor of THI and ordered Lim to
pay certain fees, costs, and sanctions (the Michigan judgment). (See Lim v. Terumo Corp., No.
11-cv-12983, at 18–20 (E.D. Mich. Apr. 9, 2014) (reproduced at Dkt. No. 3-1, at 16).)
Specifically, the court ordered Lim to pay $3,531.90: $1,750 as a sanction for failing to attend a
court-ordered psychological exam and $1,781.90 for contempt based on Lim’s failure to pay a
previous award of attorney’s fees and costs. Id. On appeal, the Sixth Circuit affirmed the court’s
grant of summary judgment and award of sanctions, although Judge McKeague, concurring in
part and dissenting in part, argued that the district court’s award should have included additional
costs and fees. (See generally Lim, Nos. 14-1513/1573, supra.) The Sixth Circuit declined to
award THI costs associated with the appeal, though the court admitted it was “tempted.” (Lim,
Nos. 14-1513/1573 (order denying costs) (reproduced at Dkt. No. 3-1, at 56).)
B. Lim’s Employment Proceedings
At some point after his termination and during the course of the Michigan litigation, Lim
moved to Floyd County, Virginia, and filed for unemployment. (Compl. ¶¶ 11, 17.) Lim asserts
that Tisack made false statements to the Virginia Employment Commission (VEC) to the effect
that Lim had been terminated because he was insubordinate and unfit for his position. (Id. ¶¶ 17,
127–28.) The VEC found that Lim had been terminated for misconduct, but the decision was
reversed on Lim’s Petition for Judicial Review to the Circuit Court for Montgomery County.
(See Chang-Su Lim v. Va. Emp’t Comm’n, No. CL11009120-00 (Va. Cir. Ct. June 10, 2013)
(reproduced at Dkt. No. 15-5); Compl. ¶ 17.)
At some point, THI and Tisack participated in a related employment proceeding before
the Wisconsin Labor & Industry Review Commission. The precise nature of the proceeding is
unclear,3 but in any event Lim claims that Tisack made false statements to the Wisconsin tribunal
as well. (Id. ¶¶ 17, 124.)
C. The Virginia Litigation
Lim’s current claims are all based on THI’s attempt to collect on the Michigan judgment.
Because Lim failed to post a supersedeas bond, THI decided to collect on its award of sanctions
and costs while Lim’s appeal to the Sixth Circuit was still pending. THI obtained counsel in
Virginia, domesticated the Eastern District of Michigan’s judgment, which included the award of
sanctions discussed supra and a taxed bill of costs in the amount of $2,122.70, and conducted
debtor interrogatories. (Notice of Filing of Foreign Judgment, Dkt. No. 3-1, at 60; Taxed Bill of
Costs, Dkt. No. 3-1, at 58; Order of Lynchburg City Circuit Court, Dkt. No. 3-1, at 66; Compl.
¶ 25.) Lim asserts that this judgment was invalid, improperly domesticated, and uncertified
(Compl. ¶¶ 25, 35–36), and that THI’s requests for depositions and interrogatories were
unnecessary and made to harass him. (Id. ¶ 36.)
Lim’s answers to the debtor interrogatories revealed that he owned a domain name and
website: “regulatorydoctor.com.” (Order of Lynchburg City Circuit Court, Feb. 3, 2015.) In
May 2015, the Lynchburg City Circuit Court ordered that the website be sold to satisfy the
judgment. (Order of Lynchburg City Circuit Court, May 21, 2015.) Lim alleges that Tisack and
THI threatened him through their Virginia counsel, indicating that they would “wreck [his]
business” by seizing his web domain if he did not abandon his appeal to the Sixth Circuit.
(Compl. ¶¶ 25–26.)
Lim claims the proceeding was based on THI’s “baseless petition for review.” (Compl. ¶ 18.) However,
it apparently occurred before the Montgomery County Circuit reversed the VEC’s ruling. (Compl. ¶¶ 17, 18.)
D. Lim’s Present Litigation
Lim commenced this action in January 2016 against various persons and entities
associated with THI. In addition to THI and Tisack, Lim’s complaint names THI’s parent
company Terumo Cardiovascular Systems (TCVS) and Mark Sutter, TCVS’s President and
CEO. (Id. ¶¶ (10), (14); Sutter Decl. ¶ 2, Dkt. No. 20-2.) Lim claims that TCVS was his
“primary employer for providing relocation, salary, administrative and financial control
including governing Human Resources at the relevant times,” while “THI was [his] secondary
employer, providing office space and HR support.” (Id. ¶ (9).) In addition, Lim sued Terumo
Americas Holding, Inc. (TAHI) and TAHI employee Juichi Takeuchi (Id. ¶¶ (11), (15)), both of
whom were dismissed from this action pursuant to Federal Rule of Civil Procedure 4(m).
(Order, Dkt. No. 39.) Finally, Lim sued Aaron Graves and Bodman, PLC, the attorney and law
firm that represented the THI defendants in the Michigan litigation.4 (Compl. ¶¶ (16), (17).)
Lim’s complaint brings ten claims against the defendants remaining in this case. Count
One asserts a Title VII retaliation claim based on allegations that defendants aggressively
litigated the Michigan suit and tried to collect on their sanctions award in order to retaliate
against him. Counts Two through Seven, all titled as species of “negligence,” “fraud,” “invasion
of privacy,” or “conspiracy,” assert state law claims based on THI’s attempts to collect on its
judgment against Lim. The gravamen of these claims is that THI manipulated the court to
enforce an improper judgment. Finally, Count Eight asserts a stand-alone vicarious liability
claim, Count Nine asserts defamation based on defendants’ misrepresentations in the various
employment and domestication proceedings, and Count Ten claims misappropriation and theft of
trade secrets arising from the circuit court’s order requiring Lim to transfer his domain name.
A second group of defendants composed of persons and entities that had some connection to Lim’s home
in Michigan was dismissed for misjoinder. (Order, Dkt. No. 38.)
Defendants responded to Lim’s initial complaint by first filing a motion for sanctions and
then filing a motion to dismiss. (Dkt. Nos. 3, 19.) Lim amended his complaint, and defendants
once again moved to dismiss. (Dkt. No. 25.) The court’s May 27, 2016 Roseboro notice gave
Lim twenty-one days from the date of the notice to respond to defendants’ motion to dismiss
(Dkt. No. 27), but Lim did not respond until June 27, 2016, thirty days later. Defendants
subsequently filed an additional motion to dismiss Lim’s claims for failure to prosecute, based
on his noncompliance with the Roseboro notice. (Dkt. No. 32.)
On October 11, 2016, the court dismissed Juichi Takeuchi and Terumo Americas
Holding, Inc. because they had not been served pursuant to Rule 4(m). (Order, Dkt. No. 39.) On
October 31, 2016, Lim filed a motion for reconsideration of that dismissal, arguing that the
dismissed parties had been served with a request to waive service. (Dkt. No. 40.) Lim
subsequently moved for a default judgment against the dismissed parties. (Dkt. No. 41.)
A. Personal Jurisdiction
All defendants move to dismiss Lim’s complaint for lack of personal jurisdiction under
Rule 12(b)(2). However, because the court finds that defendants waived that defense by moving
for sanctions before objecting to personal jurisdiction, the court will deny their motion to dismiss
Lim’s complaint on that basis.
It is well-established that the “requirements of personal jurisdiction represent first of all
an individual right” which can be waived by express or implied consent to the court’s
jurisdiction. Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982).
Under Rule 12(h), a defendant waives an objection to personal jurisdiction by failing to make it
by motion or raise it in a responsive pleading. Fed. R. Civ. P. 12(h)(1); Freedom Hawk Kayak,
LLC v. Ya Tai Elec. Appliances Co., 908 F. Supp. 2d 763, 767 (W.D. Va. 2012) (noting that a
challenge to personal jurisdiction must be raised “at the time the first significant defensive move
is made”) (quoting Rates Tech, Inc. v. Nortel Networks Corp., 399 F.3d 1302, 1307 (Fed. Cir.
2005)). A party may also waive an objection to personal jurisdiction by impliedly consenting to
the court’s jurisdiction. See Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (“Rule 12(h),
however, ‘sets only the outer limits of waiver; it does not preclude waiver by implication.’”)
(quoting Marquest Med. Prods. v. EMDE Corp., 496 F. Supp. 1242, 1245 n.1 (D. Colo. 1980));
Xyrous Commc’ns. LLC v. Bulgarian Telecomms. Co. AD, No. 1:09-cv-396, 2009 U.S. Dist.
LEXIS 80620, at *25 (E.D. Va. Sept. 4, 2009) (“Importantly, a party can waive a Rule 12
defense before an answer or Rule 12 motion is ever filed.”); see also Ins. Corp. of Ir., 456 U.S. at
704–05 (“The actions of the defendant may amount to a legal submission to the jurisdiction of
the court, whether voluntary or not.”).
In determining whether a motion filed before a Rule 12 motion constitutes a waiver of
Rule 12 defenses, courts generally look to the nature of the motion. Although many preliminary
actions, like a request for an extension of time, “do not come close to what is required for waiver
or forfeiture,” Freedom Hawk Kayak, 908 F. Supp. 2d at 767 (quoting Mobile Anesthesiologist
Chi., LLC v. Anesthesiology Assocs. of Houston Metroplex, P.A., 623 F.3d 440, 443 (7th Cir.
2010)), a motion that seeks “affirmative relief from the court” may waive a Rule 12 defense.
Xyrous Commc’ns, No. 1:09-cv-396, 2009 U.S. Dist. LEXIS 80620, at *26 (quoting Bel-Ray Co.
v. Chemrite (Pty) Ltd., 181 F.3d 435, 443 (3d Cir. 1999)); see Corporación Mexicana De
Mantenimiento Integral, S. De R.L. De C.V. v. Pemex-Exploración Y Producción, 832 F.3d 92,
101 (2d Cir. 2016); Ciolli v. Iravani, 625 F. Supp. 2d 276, 290 (E.D. Pa. 2009). “Affirmative
relief is implicated when the court ‘considers the merits or quasi-merits of a controversy.’”
Xyrous Commc’ns, No. 1:09-cv-396, 2009 U.S. Dist. LEXIS 80620, at *26 (quoting Wyrough &
Loser, Inc. v. Pelmor Labs., Inc., 376 F.2d 543, 547 (3d Cir. 1967)). “To waive or forfeit a
personal jurisdiction defense, a defendant must give a plaintiff a reasonable expectation that it
will defend the suit on the merits or must cause the court to go to some effort that would be
wasted if personal jurisdiction is later found lacking.” Freedom Hawk Kayak, 908 F. Supp. 2d at
767–68 (quoting Mobile Anesthesiologist Chi., 623 F.3d at 443); accord King v. Taylor, 694 F.3d
650, 659 (6th Cir. 2012).
In this case, defendants filed a motion for sanctions and supporting brief over a month
before filing their first motion to dismiss—the first motion suggesting that the court lacks
personal jurisdiction. (See Dkt. No. 20.) Defendants’ motion for sanctions asks the court to
award them attorney’s fees associated with the case and a prefiling injunction against future suits
from Lim. (Def.s’ Mot. Sanctions 9.) That motion also asserts that Lim’s claims are barred by
the Rooker-Feldman doctrine and by issue and claim preclusion, and “request[s] that the
Complaint be dismissed with prejudice.” (Id. at 8.) By raising these issues and affirmatively
requesting that the court dismiss Lim’s claim and grant defendants sanctions, defendants ask the
court to consider the merits of Lim’s claim and find it frivolous. See Sperber v. Elwell, No. 13cv-768, 2013 U.S. Dist. LEXIS 116164, at *4 (D.N.J. Aug. 12, 2013) (characterizing a motion
for sanctions as an affirmative motion for relief); Howard v. Klynveld Peat Marwick Goerdeler,
977 F. Supp. 654, 659 (S.D.N.Y. 1997). Accordingly, the court finds that defendants consented
to the court’s jurisdiction and waived their defense under Rule 12(b)(2).
B. Defendants’ 12(b)(6) motion
Defendants also argue that, even if the court has personal jurisdiction over them, Lim has
failed to state plausible claims and his complaint must be dismissed pursuant to Rule 12(b)(6).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged,” Iqbal, 556
U.S. at 678, and establishes “more than a sheer possibility that a defendant has acted
unlawfully.” Id. Unadorned allegations of wrongdoing, “formulaic recitation[s]” of the
elements of a claim, and “‘naked assertions’ devoid of ‘further factual enhancement’” are
insufficient to state viable claims. Id. (quoting Twombly, 550 U.S. at 555–57).
1. Lim has not plausibly alleged Title VII retaliation.
Count I of Lim’s complaint asserts Title VII retaliation based on defendants’ litigation
activities, including filing frivolous motions, informing Lim that they would not pursue
additional sanctions if Lim dropped his appeal and waived his claims, and “annoying” him by
sending and then recalling an email. (Compl. ¶¶ 68–76.) Title VII prohibits “employer
retaliation on account of an employee’s having opposed, complained of, or sought remedies for,
unlawful workplace discrimination.” Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2522 (2013) (citing 42 U.S.C. § 2000e-3(a)). “In order to establish a prima facie case of
retaliation, a plaintiff must prove three elements: (1) that she engaged in a protected activity; (2)
that her employer took an adverse employment action against her; and (3) that there was a causal
link between the two events.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 271 (4th
Cir. 2015) (quoting EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405–06 (4th Cir. 2005)).
Even if defendants’ actions were sufficiently adverse to give rise to a retaliation claim,
Lim’s claim fails because he has not plausibly alleged that those actions were retaliatory. At
heart, Lim’s theory is that defendants litigated his previous Title VII claim in a manner that was
irritating to him, and tried to collect on the judgment awarded in their favor, in order to retaliate
against him for filing that suit. The court will not infer that defendants acted with retaliatory
animus from the fact that they resisted Lim’s claims, particularly where he alleges no facts to
support the theory. Lim’s claim of retaliation is not plausible in light of the “obvious alternative
explanation,” Iqbal, 556 U.S. at 682 (quoting Twombly, 550 U.S. at 567), that defendants were
simply trying to secure a favorable outcome in that case. See Hall v. Greystar Mgmt. Servs.,
L.P., 637 F. App’x 93, 98 (4th Cir. 2016) (finding that evicted plaintiff’s retaliation claim could
not survive a 12(b)(6) motion where defendants offered the obvious alternative explanation that
they were regaining possession of the property pursuant to an eviction order). Accordingly,
Lim’s Title VII claim must be dismissed.
2. Res judicata bars Lim’s claims that challenge the Lynchburg Circuit Court’s
Six of Lim’s ten claims rely, at least in part, on allegations that the defendants improperly
convinced the Circuit Court for the City of Lynchburg to take improper actions. Specifically,
Counts Two, Three, and Four assert that defendants defrauded5 Lim by domesticating the
Michigan judgment and by making misrepresentations about its authenticity; Counts Six and
Seven assert that defendants conspired to domesticate the improper foreign judgment in order to
retaliate and harass Lim and his wife and to damage Lim’s business; and Count Ten asserts that
defendants influenced the court to order Lim’s domain name and intellectual property sold,
thereby depriving him of trade secrets. These claims turn on two issues: first, whether the
Michigan judgment was properly authenticated; and second, whether the website and domain
Count Two claims negligence based on defendants’ breach of a duty “not to commit fraud” against Lim.
(Compl. ¶ 78.) It appears that the claim is based in part of allegations that defendants misled the circuit court.
name “regulatorydoctor.com” could be sold to satisfy defendants’ judgment. Because the circuit
court has already ruled on these issues, they are barred by res judicata.
“Res judicata involves both issue and claim preclusion.” Funny Guy, LLC v. Lecego,
LLC, No. 160242, 2017 Va. LEXIS 7, at *5 (Va. 2017); Lee v. Spoden, 776 S.E.2d 798, 803 (Va.
2015) (citing Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). “Issue preclusion . . . bars
successive litigation of an issue of fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment, even if the issue recurs in the context of a different
claim.” Lee, 776 S.E.2d at 803 (quotations omitted). In Virginia, four elements must be satisfied
before a party can invoke issue preclusion:
(1) The parties to the two proceedings must be the same; (2) the
factual issue sought to be litigated must have been actually
litigated in the prior proceeding; (3) the factual issue must have
been essential to the judgment rendered in the prior proceeding;
and (4) the prior proceeding must have resulted in a valid, final
judgment against the party to whom the doctrine is sought to be
Ibrahim Martin-Bangura v. Comonwealth Dep’t of Mental Health, 640 F. Supp. 2d 729, 736
(E.D. Va. 2009) (quoting Whitley v. Commonwealth, 538 S.E.2d 296, 299 (Va. 2000)); see
accord Funny Guy, No. 160242, 2017 Va. LEXIS 7, at *5–6. The party seeking preclusion bears
the burden of demonstrating that these elements are satisfied. Wright v. Eckhardt, 591 S.E.2d
668, 670 (Va. 2004).
The court finds that these elements are satisfied as to each of the issues discussed above.
First, THI and Lim were both parties to the state court domestication proceedings. (See Notice
of Filing Foreign Judgment, Ex. 9.) Although Lim names various other defendants here who
were not parties to that action, issue preclusion applies to privies as well. See Bates v. Devers,
202 S.E.2d 917, 921 (Va. 1974) (noting that collateral estoppel applies to parties “and their
privies” in subsequent actions). Under Virginia law, “The touchstone of privity for purposes of
res judicata is that a party’s interest is so identical with another that representation by one party
is representation of the other’s legal right.” See State Water Control Bd. v. Smithfield Foods, 542
S.E.2d 766, 769 (Va. 2001). Although only THI sought to collect on the Michigan judgment, the
judgment also awarded sanctions to Tisack and TCVS, who were also defendants in the
Michigan suit and thus shared THI’s interest in filing the judgment in Virginia. The interests of
the other defendants in this case—TCVS’s president and the lawyers representing the defendants
who were awarded sanctions—are also identical. Accordingly, the first factor is satisfied.
Second, both of the factual issues Lim raises were actually litigated by the circuit court.
As the court’s orders indicate, the court heard and rejected Lim’s various challenges to the
domestication of the judgment and sale of the domain name. (See, e.g., Order of Lynchburg City
Circuit Court, Jan. 30, 2015 (dismissing Lim’s motion to set aside the judgment); Order of
Lynchburg City Circuit Court May 21, 2015 (ordering Lim’s domain name transferred).) As the
Supreme Court of Virginia recently stated, “[t]he law should afford one full, fair hearing relating
to a particular problem—but not two.” Funny Guy, No. 160242, 2017 Va. LEXIS 7, at *6
(quoting Kent Sinclair, Guide to Virginia Law & Equity Reform and Other Landmark Changes
§ 11.01, at 246 (2006)). Thus the second prong of this test is satisfied.
Third, the issues Lim raises were essential to the judgment rendered in the circuit court
proceeding. THI domesticated its judgment pursuant to Virginia’s Uniform Enforcement of
Foreign Judgments Act, Va. Code § 8.01-465.1, et seq., which authorizes the clerk of any circuit
court to treat “any foreign judgment authenticated in accordance with the act of Congress or the
statutes of the Commonwealth” in the same manner as a judgment of a circuit court of the
Commonwealth. Va. Code § 8.01-465.2; (see Compl. ¶ 25; Notice of Filing of Foreign
Judgment, Ex. 9.) Accordingly, whether the judgment was properly authenticated—the issue
Lim now raises—was central to the court’s decision to accept it. And although the exact nature
of Lim’s objection to the transfer of his domain name is not entirely clear, whether the domain
name could be sold to satisfy the judgment against him was of course essential to the court’s
decision to order it. So the third factor is satisfied as well.
Finally, the circuit court’s decision resulted in a valid, final judgment against Lim. The
orders domesticating the judgment and ordering the transfer of Lim’s domain name are before
the court, and a judgment entered pursuant to the Uniform Enforcement of Foreign Judgments
Act “has the same effect and is subject to the same procedures . . . as a judgment of a circuit
court . . . and may be enforced in a like manner.” Va. Code § 8.01-465.2. Accordingly, Lim is
barred from relitigating the issues at the center of these claims, and for that reason they must fail.
3. Lim’s negligence claim fails.
Count Two of Lim’s complaint asserts that defendants were negligent in their attempts to
domesticate the Michigan judgment and in making misrepresentations in Lim’s Virginia and
Wisconsin unemployment proceedings. The court construes Lim’s negligent misrepresentation
claim as a claim of constructive fraud. See Hansen v. Stanley Martin Cos., 585 S.E.2d 567, 573
n.4 (Va. 2003) (“Negligent misrepresentation is the essence of a claim for constructive fraud.”)
“Constructive fraud requires a showing by clear and convincing evidence that a false
representation of material fact was made innocently or negligently, and the injured party was
damaged as a result of his reliance upon the misrepresentation.” Branin v. TMC Enters., LLC,
832 F. Supp. 2d 646, 654–55 (W.D. Va. 2011). Fraud claims must satisfy the elevated pleading
standard of Rule 9(b), which requires plaintiffs to “state with particularity the circumstances
constituting fraud . . . .” Fed. R. Civ. P. 9(b); Marina One, Inc. v. Jones, 29 F. Supp. 3d 669, 682
(E.D. Va. 2014). Pleading a fraud claim with particularity requires a plaintiff, among other
things, to plead the contents of the false representations. McCauley v. Home Loan Inv. Bank,
710 F.3d 551, 559 (4th Cir. 2013). Lim has not pleaded the contents of the allegedly false
representations on which his claim is based, so his claim must fail.
In addition to the alleged misrepresentations, Lim claims that defendants sent him what
he characterizes as a “threatening” email, stating that defendants had left a voice mail message to
Lim requesting that he contact them to arrange payment of the sanctions award. (Compl. ¶ 79.)
It is unclear to the court how this email could be construed as a threat, or how such an email
could constitute a breach of any duty defendants owed Lim under Virginia law. Accordingly, the
court will dismiss Lim’s negligence claim.
4. Lim cannot state a claim for invasion of privacy.
In Count Five of his complaint, Lim attempts to assert an invasion of privacy claim,
based on a vague allegation that defendants “unlawfully disclosed or used Plaintiff’s private and
confidential information/records, electronically communicated, to the public against the
Plaintiff.” As the Supreme Court has indicated, the only actionable tort for invasion of privacy
in Virginia is an action for “misappropriation of plaintiff’s name or likeness for commercial
purposes.” Wjla-Tv v. Levin, 564 S.E.2d 383, 395 n.5 (Va. 2002); see Falwell v. Penthouse, 521
F. Supp. 1204, 1206 (W.D. Va. 1981). Lim does not allege that defendants misappropriated his
name or likeness and, therefore, fails to state a claim for invasion of privacy under Virginia law.6
5. Vicarious liability is not an independent cause of action.
Count Eight of Lim’s complaint asserts a claim titled “Vicarious Liability” against all
defendants. That claim states that the various defendants are employers and supervisors of
Lim cites Va. Code § 19.2-69, which provides a civil remedy for victims of violations of the Virginia
Interception of Wire or Oral Communications Act, Va. Code § 19.2-61 et seq. This provision is irrelevant to Lim’s
Tisack and are therefore vicariously liable for the “retaliatory action” that she took against Lim
on their behalf. (Compl. ¶ 120.) “Vicarious liability ‘is a theory of liability, not a separate cause
of action,’” Sewraz v. Nguyen, No. 3:08-cv-90, 2011 U.S. Dist. LEXIS 5464, at *27 (E.D. Va.
Jan. 20, 2011) (quoting Rohrbaugh v. Kreidler, 71 Va. Cir. 298, 304 (Va. Cir. 2006)); Newport
News Indus. v. Dynamic Testing, 130 F. Supp. 2d 745, 751 (E.D. Va. 2001); Shaver v. HPB
Corp., 84 Va. Cir. 382, 384 (Va. Cir. 2012), so the court will dismiss Count Eight to the extent it
attempts to assert a stand-alone vicarious liability claim. The court assumes from this count that
Lim means to assert vicarious liability as a theory of liability for his other claims. However,
since all of Lim’s underlying claims fail for the reasons stated herein, there is no vicarious
6. Absolute privilege bars Lim’s defamation claim
Count Nine attempts to assert a defamation claim against all defendants. The claim is
based entirely on allegedly false statements defendants made to the Circuit Court for the City of
Lynchburg in the process of collecting on the Michigan judgment, and to Virginia and Wisconsin
tribunals during Lim’s unemployment proceedings. It is well-settled in Virginia that
communications in a judicial proceeding that are relevant to the issues of the proceeding are
absolutely privileged and cannot be the basis for a defamation claim. Mansfield v. Barnabei, 727
S.E.2d 69, 73 (Va. 2012); Donohoe Constr. Co. v. Vernon Assocs., 369 S.E.2d 857, 860 (Va.
1988). This absolute privilege extends to “all proceedings of a judicial nature.” Mansfield, 727
S.E.2d at 73 (quoting Penick v. Ratcliffe, 140 S.E. 664, 667 (Va. 1927)). Because all of
defendants’ allegedly defamatory statements were made in judicial or quasi-judicial proceedings,
none can be the basis for a defamation claim.7 For that reason, Lim’s claim must be dismissed.
Numerous courts have also interpreted Va. Code § 60.2-623(B), which provides that information
furnished to the VEC “shall not be . . . used in any judicial proceeding other than one arising out of the provisions of
For the foregoing reasons, each of Lim’s claims fails to state a plausible claim for relief
and his claims must therefore be dismissed pursuant to Rule 12(b)(6). Because of this dismissal,
the court will deny defendants’ motion to dismiss for lack of prosecution as moot.
C. Lim’s motion for reconsideration and motion for default
Lim’s two outstanding motions require little discussion. First, motions for
reconsideration are disfavored, and Lim’s presents none of the grounds that would normally
justify such a motion. See Wootten v. Virginia, 168 F. Supp. 3d 890, 893 (W.D. Va. 2015)
(describing the proper grounds for a motion to reconsider); Above the Belt, Inc. v. Mel Bohannan
Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). The court will therefore deny Lim’s motion to
Of course, Lim’s motion for a default judgment against Juichi Takeuchi and Terumo
Americas Holding, Inc. is entirely meritless. Those defendants were never served and were
therefore dismissed from this action pursuant to Rule 4(m). Accordingly, Lim’s motion is
In addition to its motion to dismiss, defendants filed a motion for sanctions pursuant to
Rule 11 of the Federal Rules of Civil Procedure. Defendants ask for two sanctions specifically:
(1) their attorney’s fees related to this action, and (2) a pre-filing injunction that would require
Lim to attain leave of this court before filing future lawsuits. Defendants argue that these
sanctions are justified by Lim’s long and well-documented history of using frivolous lawsuits
and litigation tactics to harass a wide variety of persons and institutions.
this title . . . ,” to prohibit plaintiffs from using statements submitted to the VEC as the basis for defamation claims.
Shabazz v. PYA Monarch, LLC, 271 F. Supp. 2d 797, 802–03 (E.D. Va. 2003); Moore v. PYA Monarch, LLC, 238 F.
Supp. 2d 724, 730 (E.D. Va. 2002). Thus Lim’s claim based on statements made to the VEC fails for that reason as
Rule 11 authorizes the court to sanction parties for presenting pleadings for “any
improper purpose, such as to harass,” and for presenting frivolous claims, among other things.
Fed. R. Civ. P. 11(b). Although Rule 11 instructs that sanctions “must be limited to what
suffices to deter repetition of the conduct or comparable conduct by others similarly situated,”
Fed. R. Civ. P. (11)(c)(4), decisions about whether to award sanctions and what sanction to
award lie within the discretion of the district court. In re Edmond, 934 F.2d 1304, 1313 (4th Cir.
Defendants characterization of Lim’s litigation history is certainly well-supported. Lim
has consistently skirted—and occasionally crossed—the line of sanctionable conduct throughout
his extensive litigation history. That conduct has appropriately earned Lim awards of sanctions
in the past; indeed, this case arises from Lim’s attempt to avoid responsibility for an award of
sanctions. The court has little doubt that Lim’s slash-and-burn style of litigation has caused
significant inconvenience to the defendants in this case, and to many other defendants that have
found themselves on the wrong side of Lim’s filings.
However, the court will decline to award sanctions here. Although Lim has failed to state
any viable claim here, the court cannot determine, particularly in light of Lim’s pro se status, that
all of his claims are so frivolous that sanctions are warranted. And to this point, with one notable
exception,8 Lim has not resorted to the sort of frivolous motions before this court that have
warranted sanctions in previous cases. So, although it is a close question, the court will not
Lim’s motion for a default judgment against parties the court has dismissed from this case is clearly
frivolous. However, because that motion was not the basis for defendants’ motion for sanctions and because
defendants did not respond to that motion, the court declines to sanction Lim for it.
For the foregoing reasons, the court will grant defendants’ motion to dismiss for failure to
state a claim, deny defendants’ motion to dismiss for failure to prosecute as moot, deny
defendants’ motion for sanctions, and deny Lim’s motion for reconsideration and for a default
judgment. An appropriate order will be entered.
Entered: March 30, 2017.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
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