Kerr v. Marshall University Board of Governors et al
MEMORANDUM OPINION AND ORDER adopting the 19 Proposed Findings and Recommendations by Magistrate Judge; overruling the Plaintiff's 20 Objections; granting Defendants' 6 Motion to Dismiss; denying Plaintiff's 10 Motion to Reopen and Consolidate Related Actions; and dismissing with prejudice this matter from the Court's docket. Signed by Judge Thomas E. Johnston on 9/21/2017. (cc: counsel of record; any unrepresented party) (mks)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
LISA MARIE KERR,
CIVIL ACTION NO. 2:16-cv-06589
MARSHALL UNIVERSITY BOARD OF GOVERNORS, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendants Sandra Bailey, Teresa Eagle, Lisa Heaton, Gene
Brett Kuhn, Marshall University Board of Governors (“MUBG”), David Pittenger, and Judith
Southard’s (collectively, “Defendants”) Motion to Dismiss (ECF No. 6) and Plaintiff Lisa Kerr’s
(“Plaintiff”) Motion to Reopen and Consolidate Related Actions (ECF No. 10). By Standing
Order entered January 4, 2016, and filed in this case on July 22, 2016, this action was referred to
United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a
recommendation (“PF&R”). Magistrate Judge Tinsley filed his PF&R (ECF No. 19) on June 28,
2017, recommending that this Court grant Defendants’ Motion to Dismiss and deny Plaintiff’s
Motion to Reopen and Consolidate Related Actions.
This is the second civil action Plaintiff has filed stemming from her attempted completion
of Marshall University’s Master of Arts in Teaching (“MAT”) program, for which she was not
awarded a degree due to her receipt of a “no credit” grade for the program’s required MAT Level
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III Clinical Experience student teaching course. Plaintiff’s Complaint (“2014 Complaint”) in her
first action relating to these events, Case No. 2:14-cv-12333 (“2014 Action”), was filed in this
Court on March 14, 2014. That Complaint named the same seven Defendants named in this
action, and alleged seven causes of action: (1) defamation against Defendants MUBG, Kuhn,
Southard, Bailey, and Eagle; (2) tortious interference with a business expectancy against
Defendants MUBG, Kuhn, Southard, Bailey, and Eagle; (3) the tort of outrage against Defendants
MUBG, Kuhn, Southard, Bailey, and Eagle; (4) a violation of the plaintiff’s due process rights
under 42 U.S.C. § 1983 (“section 1983”) against Defendants MUBG, Southard, Bailey, and Eagle;
(5) a violation of the plaintiff’s equal protection rights under section 1983, based upon sexual
orientation discrimination, against Defendants MUBG, Southard, Bailey, Eagle, Heaton, and
Pittenger; (6) a violation of the plaintiff’s equal protection rights under section 1983, as a “class
of one” against Defendants MUBG, Southard, Bailey, Eagle, Heaton, and Pittenger; and (7) a
violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219, against Defendants
MUBG and Kuhn.
Defendants filed a Motion to Dismiss in the 2014 Action on May 28, 2014, and on March
26, 2015, this Court entered its Memorandum Opinion and Order granting that motion and
dismissing each of Plaintiff’s claims for failure to state a claim on which relief could be granted.
See Kerr v. Marshall Univ. Bd. of Governors, No. 2:14-CV-12333, 2015 WL 1405537 (S.D. W.
Va. Mar. 26, 2015). Plaintiff appealed this Court’s judgment, and on March 22, 2016, the United
States Court of Appeals for Fourth Circuit heard oral arguments. On May 24, 2016, the Fourth
Circuit entered its Opinion affirming this Court’s Opinion on all seven counts. See Kerr v.
Marshall Univ. Bd. of Governors, 824 F.3d 62 (4th Cir. 2016). Plaintiff’s petition for rehearing
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was denied in a brief opinion, and she did not attempt to appeal the Fourth Circuit’s decision to
the United States Supreme Court by filing a petition for writ of certiorari.
Plaintiff filed her Complaint in the instant action on July 22, 2016, re-alleging her
defamation claim, her due process claim, and her equal protection claim based on sexual
orientation discrimination.1 Plaintiff’s Complaint in this action also attempts to plead her due
process claim as a class action claim. Defendants filed their Motion to Dismiss on October 13,
2016, arguing that each of the claims in the new complaint was barred by res judicata and the
applicable statutes of limitations. Plaintiff filed her Motion to Reopen and Consolidate Related
Actions on October 26, 2016. Both motions were fully briefed, and Magistrate Judge Tinsley
filed his PF&R addressing them on June 28, 2017
The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file
timely objections constitutes a waiver of de novo review and the Petitioner’s right to appeal this
Court’s Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need
not conduct a de novo review when a party “makes general and conclusory objections that do not
direct the Court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections to the PF&R were due on July
In this action, unlike in her 2014 Complaint, Plaintiff raises her equal protection claim under Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”).
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17, 2017. Plaintiff filed timely Objections (ECF No. 20) on July 5, 2017, and Defendants filed a
Response (ECF No. 21) on July 19, 2017.
Before addressing Plaintiff’s specific objections individually, the Court finds it necessary
to address Plaintiff’s apparent misapprehension about the result of the 2014 Action. Plaintiff
obviously views this second action as nothing more than an attempt to amend her 2014 Complaint;2
this is clear from her persistent citations to Rule 15 of the Federal Rules of Civil Procedure
throughout her briefing and Objections, regardless of that rule’s relevance to the issues.
Plaintiff’s belief that she is entitled to amend her 2014 Complaint apparently stems from a
fundamental misunderstanding of the implications of this Court’s dismissal of the 2014 Action.
This Court’s Memorandum Opinion and Order did not specify that its dismissal was without
prejudice; therefore, according to Fourth Circuit precedent, the dismissal was with prejudice and
operated as an adjudication on the merits. See McLean v. United States, 566 F.3d 391, 396 (4th
Cir. 2009) (“Courts have held that, unless otherwise specified, a dismissal for failure to state a
claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with
prejudice.”); Carter v. Norfolk Cmty. Hosp. Ass’n, Inc., 761 F.2d 970, 974 (4th Cir. 1985) (“A
district court’s dismissal under Rule 12(b)(6) is, of course, with prejudice unless it specifically
orders dismissal without prejudice.”). Plaintiff apparently understood that this Court’s dismissal
operated as a judgment on the merits, as she filed an appeal to the Fourth Circuit. However, she
seems to believe that the dismissal was only with prejudice because this Court based its dismissal
In her Objections, Plaintiff laments that “Defendants and the Magistrate [Judge] have blown Plaintiff’s simple act
of amending her complaint way out of proportion.” (ECF No. 20 at 1 (emphasis in original).)
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on what she terms to be the Defendants’ “Quasi-immunity academic discretion” argument.3 (ECF
No. 20 at 3–4.) It is apparently Plaintiff’s understanding that this was the basis of this Court’s
dismissal, but that when faced with questioning about this theory during oral arguments,
Defendants abandoned this argument on appeal and instead relied on arguments that the Complaint
was insufficient on its face to state any claims. Though the Fourth Circuit ultimately affirmed
this Court’s dismissal of all of Plaintiff’s claims, she seems to believe that because the Fourth
Circuit’s rationale was based on her failure to state a claim, she is automatically entitled to amend
It is true that, when the Fourth Circuit affirms a dismissal on a different basis than that
relied on by a district court, it may remand the action to the district court to determine if the
dismissal should be without prejudice. See Carter, 761 F.2d at 974–75 (remanding action to
district court for a determination of whether dismissal should be with or without prejudice after
affirming dismissal on 12(b)(6) grounds where district court relied on 12(b)(1)). However, this
is inapplicable here, as the Fourth Circuit affirmed the dismissal of Plaintiff’s 2014 Complaint on
the same Rule 12(b)(6) grounds upon which this Court relied.
Apparently, due to her belief that the Fourth Circuit affirmed this Court’s dismissal of her
2014 Complaint on a different basis than this Court relied on, Plaintiff declares that “[t]he Fourth
Circuit’s opinion was essentially a victory for Plaintiff.” (ECF No. 20 at 9.) As an initial matter,
Plaintiff fundamentally misunderstands this Court’s Memorandum Opinion and Order granting
Defendants’ Motion to Dismiss in her 2014 Action. In that order, this Court found that each of
The Court notes that, in its opinion dismissing the 2014 Action, it determined that sovereign immunity barred suit
against MUBG and the individual Defendants to the extent they were sued in their official capacities. See Kerr, 2015
WL 1405537 at *9–11. However, as this holding did not entirely eliminate any of Plaintiff’s claims, it does not seem
to be the basis for Plaintiff’s view that her 2014 Action was dismissed on a “quasi-immunity” basis.
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the claims Plaintiff had attempted to raise failed to state a claim upon which relief could be
This Court determined that Plaintiff’s defamation claim was legally insufficient
because it was premised on alleged statements that were not provably false and thus could not be
defamatory. See Kerr, 2015 WL 1405537, at *11–12. With respect to her equal protection claim
based on sexual orientation, this Court determined that Plaintiff’s allegations did not show that the
Defendants knew of her homosexual orientation, that they harbored discriminatory animus, or that
they treated her differently than similarly-situated heterosexual students. See id. at *22. On
Plaintiff’s procedural due process claim, this Court found that the alleged decision to give Plaintiff
a “no credit” grade was an academic evaluation, such that she could only demonstrate a
constitutional violation by showing that Defendants’ decision was arbitrary and capricious. 5 See
id. at *20. The Court found that the alleged conduct Plaintiff based her due process claim on was
not arbitrary and capricious, and thus dismissed Plaintiff’s procedural due process claim for failure
Though Plaintiff initially attempted to raise other claims in her first action, she is only attempting to reassert her
defamation, due process, and equal protection based on sexual orientation claims in this action. Accordingly, the
Court declines to specifically discuss its disposition of her other claims in the 2014 Action.
As explained in this Court’s opinion in Plaintiff’s first action, the Fourth Circuit standard for evaluating the
procedural due process of a subjective decision differs from an objective one, in that “the process due one subject to
[a] highly subjective evaluative decision can only be the exercise of professional judgment by those empowered to
make the final decision in a way not so manifestly arbitrary and capricious that a reviewing court could confidently
say of it that it did not in the end involve the exercise of professional judgment.” Siu v. Johnson, 748 F.2d 238, 245
(4th Cir. 1984). This Court determined that, as alleged in her Complaint, the Defendants’ decisions that Plaintiff
believes were made in violation of her procedural due process rights—her “no grade” evaluation and her subsequent
inability to graduate the MAT program—were subjective evaluations subject to this relaxed standard. See Kerr, 2015
WL 1405537, at *18–20. There is significant support from both the United States Supreme Court and the Fourth
Circuit for the understanding that an academic evaluation, like the one Plaintiff alleged, is a subjective decision. See,
e.g., Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (“When judges are asked to review the substance
of a genuinely academic decision, such as this one, they should show great respect for the faculty’s professional
judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms
as to demonstrate that the person or committee responsible did not actually exercise professional judgment.”); Halpern
v. Wake Forest Univ. Health Scis., 669 F.3d 454, 462 (4th Cir. 2012) (“In the context of due-process challenges, the
Supreme Court has held that a court should defer to a school’s professional judgment regarding a student’s academic
or professional qualifications.”); Betts v. Rector & Visitors of Univ. of Va., No. 97-1850, 1999 WL 739415, at *8 (4th
Cir. 1999) (applying the “arbitrary and capricious” standard for subjective decisions to a procedural due process
challenge to a school’s determination that a student had not met the standards for admission into a medical school).
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to state a claim. See id. at *20. The Court similarly found that the Defendants’ alleged conduct
was not egregious and arbitrary, so she could not state a substantive due process claim. See id. at
*21. The Fourth Circuit affirmed the dismissal of these claims based on Plaintiff’s failure to state
a claim for which relief could be granted. See Kerr, 824 F.3d at 73–74.
Plaintiff’s misinterpretation of this Court’s decision to dismiss her initial case seems to
come from the analysis of her due process claim. This Court determined that, because the
decisions Defendants made to assign Plaintiff a grade of “no credit” for her student teaching course
and to decline to allow her to graduate the MAT program were academic in nature, she could only
demonstrate a violation of her due process rights by showing that the decision was arbitrary and
capricious. To the extent the Court can determine the source of Plaintiff’s belief that her initial
claim was dismissed on the basis of “quasi-immunity academic discretion,” it appears to stem from
this procedural due process standard. It seems that Plaintiff interpreted this Court’s recognition
of the relevant—and highly deferential—standard for evaluating procedural due process claims
based on academic evaluations as a legal finding analogous to immunity for the Defendants. 6
Unfortunately for Plaintiff, as detailed above, this Court dismissed her 2014 Action
because her allegations failed to state any claims on which relief could be granted. Plaintiff
needed to plead facts showing that Defendants’ academic evaluation of her was arbitrary and
Plaintiff also makes much of some questioning that occurred at oral argument. According to Plaintiff, due to
“intensive panel questioning” the Defendants “retreated from their merits positions in oral argument, and urged the
panel to rely solely on insufficiencies in Plaintiff’s initial pleading.” (ECF No. 20 at 2, 9.) The Court offers no
opinion on whether Defendants initially attempted to assert a merits argument during oral argument, because it is
irrelevant. As discussed above, this Court dismissed Plaintiff’s complaint in her initial action because it failed to
state a claim, and the Fourth Circuit affirmed this Court’s dismissal on the same basis. See Murdaugh Volkswagen,
Inc. v. First Nat’l Bank of S.C., 741 F.2d 41, 44 (4th Cir. 1984) (“Courts must speak by orders and judgments, not by
opinions, whether written or oral, or by chance observations or expressed intentions made by courts during, before or
after trial, or during argument. When the terms of a judgment conflict with either a written or oral opinion or
observation, the judgment must govern.”) Whether Defendants misinterpreted this Court’s opinion in the same way
Plaintiff did is immaterial.
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capricious in order to state a claim that they violated her procedural due process rights. This Court
found that the Defendants’ alleged conduct at issue was not arbitrary and capricious, so she could
not state a procedural due process claim. While the Fourth Circuit discussed some of Plaintiff’s
claims in greater depth than this Court initially did,7 and in several instances focused on different
legal insufficiencies, it ultimately affirmed this Court’s dismissal on the same rationale.8
A. Application of Fourth Circuit Mandate
Plaintiff’s first specific objection purports to object to the PF&R’s failure to follow the
Fourth Circuit’s mandate, in violation of the “mandate rule.” She asserts there is no indication in
the Fourth Circuit’s decision that the Court “intended the extremely rare outcome of precluding
Plaintiff from amending her complaint to remediate the basis for their decision.” (ECF No. 20 at
5.) Accordingly, Plaintiff believes the PF&R errs in its understanding that this Court’s dismissal
with prejudice of Plaintiff’s 2014 Action was upheld on appeal.
The mandate rule is a “more powerful version of the law of the case doctrine.” Invention
Submission Corp. v. Dudas, 413 F.3d 411, 414 (4th Cir. 2005). “Few legal precepts are as firmly
As discussed above, it appears that Plaintiff’s misunderstanding of this Court’s initial decision came from its analysis
of her procedural due process claim. In the context of this claim, the Fourth Circuit discussed the internal processes
Marshall provided Plaintiff in assigning her a “no credit” grade and in allowing her to appeal that grade. The Fourth
Circuit observed that this process would have been sufficient to protect her due process rights, if she had sufficiently
pled a protected property interest, which that Court determined she had not. See Kerr, 824 F.3d at 80–81. It is
possible that this more specific discussion of the process she was afforded caused Plaintiff to believe the Fourth Circuit
had arrived at a different holding than this Court. However, the Fourth Circuit not only found that Plaintiff failed to
allege deficient procedure, it also found that her allegations showed she was not entitled to a property interest sufficient
to trigger due process rights—a fact that this Court presumed for the purposes of the Rule 12(b)(6) stage. That the
Fourth Circuit found that she failed to state a due process claim for more reasons than this Court did does not change
the basis for dismissal; both courts determined Plaintiff’s allegations, taken as true, were legally insufficient to state a
claim for a violation of her due process rights.
Bafflingly, in a move that contradicts her accounts of the 2014 Action nearly everywhere else and undermines
essentially all of her arguments, Plaintiff acknowledges in her Complaint in the instant action that “[t]he District Court
dismissed the seven original claims in an opinion dated March 26, 2015, on the basis of 12(b)(6) pleading defects.”
(ECF No. 2, ¶ 20.) Here she also asserts that this Court’s dismissal was without prejudice, which not only contradicts
her apparent understanding of the dismissal as a final appealable order, but also misconstrues federal law. See Carter
v. Norfolk Cmty. Hosp. Ass’n, Inc., 761 F.2d 970, 974 (4th Cir. 1985) (“A district court’s dismissal under Rule 12(b)(6)
is, of course, with prejudice unless it specifically orders dismissal without prejudice.”).
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established as the doctrine that the mandate of a higher court is ‘controlling as to matters within
its compass.’” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (quoting Sprague v. Ticonic
Nat’l Bank, 307 U.S. 161, 168 (1939)). This rule prevents district courts from considering
questions the higher court has addressed conclusively or addressing issues on remand that could
have been raised on appeal but were not. See Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007)
Plaintiff’s argument here rests on her misapprehension discussed above; Plaintiff claims
the PF&R errs in its proposed finding that this Court’s dismissal of Plaintiff’s 2014 Action was
unequivocally upheld on appeal. Plaintiff argues that the Defendants abandoned their “quasiimmunity academic discretion” argument on appeal, and as a result the Fourth Circuit’s decision
was based exclusively on Plaintiff’s failure to state legally viable claims. As noted, Plaintiff
apparently believes that a Rule 12(b)(6)-based dismissal for failure to state a claim is without
prejudice by definition.
However, this is contrary to clearly-established precedent, which
explains that a Rule 12(b)(6) dismissal for failure to state a claim is with prejudice and serves as a
decision on the merits unless it is expressly without prejudice. See Federated Dep’t Stores, Inc.
v. Moitie, 452 U.S. 394, 399 n.3 (1981) (quotations omitted) (“The dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits.”) Accordingly,
Plaintiff’s belief that it was implicit within the Fourth Circuit’s affirmance of this Court’s dismissal
of Plaintiff’s 2014 Action that the dismissal should no longer be with prejudice is misplaced.
Additionally, as explained in detail above, this Court’s dismissal of Plaintiff’s 2014
Complaint was based on her failure to state a claim, not any doctrine analogous to immunity, as
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she suggests.9 Had the Fourth Circuit affirmed dismissal on a different basis than that relied on
by this Court, that Court could have remanded the action for this Court to decide if its dismissal
should have been without prejudice. See Carter, 761 F.2d at 975 (“Because we are affirming on
Rule 12(b)(6) grounds which were not the basis for dismissal by the district court, we remand for
its decision whether to dismiss with or without prejudice and express no thoughts on the merits of
that determination.”). The Fourth Circuit also could have affirmed this Court’s dismissal on the
same basis this Court relied on, but modified it to be without prejudice. See King v. Rubenstein,
825 F.3d 206, 225 (4th Cir. 2016) (“Accordingly, we affirm the dismissal as to Rubenstein and
Goodin but modify it to reflect that it is without prejudice.”). Given that the Fourth Circuit
affirmed this Court’s decision on the same Rule 12(b)(6) basis this Court used, and declined to
modify the decision to be without prejudice or remand for this Court to consider the issue of
prejudice, the Court finds no reason to infer an intent to modify the dismissal.
Accordingly, Plaintiff’s first objection is OVERRULED.
B. Application of the Savings Statute
Plaintiff’s second objection protests the PF&R’s finding that West Virginia’s savings
statute does not prevent the claims raised in the instant action from being time-barred. West
Virginia’s savings statute provides, in relevant part:
(a) For a period of one year from the date of an order dismissing an action or
reversing a judgment, a party may refile the action if the initial pleading was timely
filed and: (i) the action was involuntarily dismissed for any reason not based upon
In her argument on this objection, Plaintiff cites to the Fourth Circuit’s statement in a footnote that “we may affirm
on any grounds supported by the record, notwithstanding the reasoning of the district court.” (ECF No. 20 at 5.)
The Court finds this citation to be misguided at best; the Fourth Circuit made this statement in the context of its finding
that Plaintiff failed to state a claim for defamation both because the statements alleged were incapable of defamatory
meaning and because they were privileged. See Kerr, 824 F.3d at 75–76. This not only affirmed this Court’s basis
for dismissal—that Plaintiff failed to state a defamation claim because the alleged statements could not be
defamatory—but also took it a step further.
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the merits of the action; or (ii) the judgment was reversed on a ground which does
not preclude a filing of new action for the same cause.
W. Va. Code § 55-2-18(a). The PF&R finds that this statute is inapplicable to Plaintiff’s claims
because “her first Complaint was involuntarily dismissed on the merits and the initial judgment
has not been reversed.” (ECF No. 19 at 14.)
It is clear that this objection rests upon Plaintiff’s previously discussed misinterpretation
of the Fourth Circuit’s Opinion affirming the dismissal of her 2014 Action. Plaintiff argues that
“it was an error for the Magistrate to treat the Original Action as dismissed ‘on the merits’ at all,
because the [Fourth Circuit’s] opinion was a controlling component of the mandate for the three
amended claims.” (ECF No. 20 at 7–8.) Plaintiff asserts that “[a]ffirmance of 12(b)(6) dismissal
was ‘not based upon the merits of the action.’” (ECF No. 20 at 8.) As explained above,
Plaintiff’s presumption that a dismissal under Rule 12(b)(6) is without prejudice is directly
contrary to Fourth Circuit law, which explains that such dismissals are presumed to be with
prejudice and judgments on the merits unless the court indicates otherwise. See McLean, 566
F.3d at 396. This Court’s dismissal of Plaintiff’s 2014 Action was rendered with prejudice, and
thus operates as a judgment on the merits. Thus, West Virginia’s savings statute does not prevent
Plaintiff’s claims from being time-barred by the applicable statutes of limitations.
Accordingly, Plaintiff’s second objection is OVERRULED.
C. Waiver of Right to Amend
Plaintiff’s third specific objection asserts that the PF&R erred in its finding that Plaintiff
waived her right to amend her 2014 Complaint. The PF&R proposes that this Court find Plaintiff
waived her right to amend her Complaint because she did not file a motion to amend before her
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2014 Complaint was dismissed, she has not succeeded in having the judgment set aside,10 and she
did not continue her appeal to the United States Supreme Court. (ECF No. 19 at 11.) To the
extent Plaintiff addresses the PF&R’s reasoning on this recommendation, her arguments are based
on her erroneous interpretation of the Fourth Circuit’s decision affirming this Court’s dismissal of
her 2014 Complaint. As this Court has already thoroughly addressed Plaintiff’s underlying
argument that the Fourth Circuit affirmed this Court’s dismissal on a different basis than this Court
relied on, the Court finds no reason to repeat that analysis.11
Accordingly, Plaintiff’s third objection is OVERRULED.
D. Application of Res Judicata to Bar Amendment
Plaintiff’s fourth specific objection asserts that the PF&R erred in applying res judicata to
bar Plaintiff from amending her 2014 Complaint with her new Complaint in the instant action.
Plaintiff does not argue under the law of res judicata in this objection, but instead proceeds as if
the filing of the instant action should be decided under Rule 15 of the Federal Rules of Civil
Procedure’s standard governing motions to amend.12 However, coupled with her arguments in
The PF&R construes Plaintiff’s Motion to Reopen and Consolidate Related Cases (ECF No. 10) as a Motion for
Relief From Judgment under Rule 60(b), and recommends its denial. As discussed below, this Court adopts the
PF&R’s recommendation on that issue and denies Plaintiff’s Motion for Relief, so her attempt to have the judgment
set aside was unsuccessful. The Court notes that Plaintiff has also filed a motion under Rule 60(b) seeking relief
from judgment in her earlier case, with an included request to amend her Complaint. While the Court has not yet
addressed this motion in her 2014 Action, it is unnecessary to do so before resolving the motions in the instant action.
If the Court grants that motion, Plaintiff would be relieved from the judgment and amendment would be proper in that
case, rendering this action duplicative. If the Court denies that motion, Plaintiff would still be subject to that
judgment. Accordingly, the Court finds that it is unnecessary to address that motion before rendering disposition in
The Court also finds that, because Plaintiff’s claims are otherwise barred by res judicata and the applicable statutes
of limitations, her argument that she did not waive her right to amend is moot.
Plaintiff’s discussion of the motion to amend standard is irrelevant to the application of res judicata. As the PF&R
notes, “a motion to amend filed after a judgment of dismissal has been entered cannot be considered until the judgment
is vacated.” Calvary Christian Ctr. v. City of Fredericksburg, 710 F.3d 536, 539 (4th Cir. 2013). Accordingly, to
the extent the standard for amendment of pleadings could be relevant at all in this case, Plaintiff’s arguments under
that standard presume her success in obtaining relief under Rule 60(b) from this Court’s dismissal of her 2014 Action.
However, the PF&R recommends denying Plaintiff’s Motion to Reopen and Consolidate Related Actions to the extent
it seeks relief under Rule 60(b)(6) on the grounds that it fails to demonstrate exceptional circumstances for relief. As
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her Response to the underlying Motion to Dismiss, it appears Plaintiff contests the application of
res judicata purely on the grounds of whether there was a prior final judgment.
The doctrine of res judicata “bars a party from relitigating a claim that was decided or
could have been decided in an original suit.” Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156,
161 (4th Cir. 2008) (citing Pueschel v. United States, 369 F.3d 345, 355 (4th Cir. 2004)). “The
application of res judicata turns on the existence of three factors: ‘(1) a final judgment on the
merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and
(3) an identity of parties or their privies in the two suits.’” Clodfelter v. Republic of Sudan, 720
F.3d 199, 210 (4th Cir. 2013) (quoting Pueschel, 369 F.3d at 354). 13 Res judicata prevents
litigation of claims actually raised and litigated in a prior action, as well as “litigation of all grounds
for, or defenses to, recovery that were previously available to the parties, regardless of whether
they were asserted or determined in the prior proceeding.” Brown v. Felsen, 442 U.S. 127, 131
(1979) (citing Chicot Cty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378 (1940)).
“Courts presume that a litigant has ‘done his legal and factual homework’ and raised all grounds
arising out of the same factual context to support his claims.” Peugeot Motors of Am., Inc. v. E.
Auto Distribs., Inc., 892 F.2d 355, 359 (4th Cir. 1989) (quoting Car Carriers, Inc. v. Ford Motor
Co., 789 F.2d 589, 596 (7th Cir. 1986)).
the Objections do not object to that finding, this Court adopts it, and there is no complaint for Plaintiff to amend.
Additionally, the Court finds that, in light of Plaintiff’s filing of a motion under Rule 60(b) in the 2014 Action, this
issue is more appropriate for consideration in that case.
Though Plaintiff does not raise the issue of which law of res judicata applies—instead arguing that the instant
action should be treated as a Motion to Amend under Rule 15 of the Federal Rules of Civil Procedure and that res
judicata is inapplicable entirely—the Court notes that because the prior relevant decision was issued by a federal
court, federal res judicata law is applicable. See Andrews v. Daw, 201 F.3d 521, 524 (4th Cir. 2000) (citing Shoup
v. Bell & Howell Co., 872 F.2d 1178, 1179 (4th Cir. 1989)).
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As noted, Plaintiff does not contest much of the res judicata analysis.
acknowledges in her Complaint that the defamation, due process, and equal protection claims she
asserts in this action are “amended and re-asserted” versions of claims she raised in her previous
action.14 (ECF No. 2, ¶ 18.) A review of the parties named in the Complaint shows that they are
the same Defendants named in the 2014 Complaint. (ECF No. 2, ¶ 28–35.) Accordingly, the
second and third factors of res judicata are easily satisfied in this case, and Plaintiff does not appear
to contest as much.
Instead, Plaintiff argues that there is no final judgment on the merits to bar the claims in
her new Complaint. (ECF No. 9 at 10–11.) A dismissal for failure to state a claim is a final order
on the merits for the purposes of res judicata if the dismissal is with prejudice. See Moitie, 452
U.S. at 399 n.3; Fayetteville Inv’rs v. Commercial Builders, Inc., 936 F.2d 1462, 1471 (4th Cir.
1991) (“[A] dismissal under Rule 12(b)(6) is accorded res judicata effect . . . .”). Plaintiff
acknowledges in her Response to the underlying Motion to Dismiss that a Rule 12(b)(6) dismissal
can be a final decision for the purposes of res judicata, but asserts that this is only the case when
a party fails to appeal it. (ECF No. 9 at 11.) Plaintiff argues that, since she appealed this Court’s
dismissal of her 2014 Action to the Fourth Circuit, this Court’s prior opinion no longer has any
Plaintiff does not argue that her equal protection claim is a new cause of action in this case because she raised it
under Title IX, presumably based on her view that she is merely attempting to amend her 2014 Complaint and as such
res judicata is inapplicable. Regardless, the PF&R addresses the issue, relying on Fourth Circuit guidance that, for
the purposes of res judicata “claims are part of the same cause of action when they arise out of the same transaction
or series of transactions, or the same core of operative facts.” First Union Commercial Corp. v. Nelson, Mullins,
Riley & Scarborough (In re Varat Enters., Inc.), 81 F.3d 1310, 1316 (4th Cir. 1996). The PF&R recommends a
finding that Plaintiff could have raised her Title IX claim in her 2014 Complaint, as it stems from the same core of
operative facts. (ECF No. 19 at 7–8, 11.) Indeed, Plaintiff acknowledges in her Response to Defendants’ Motion to
Dismiss that she attempted to raise this Title IX claim on appeal, but the Fourth Circuit declined to consider it because
she had not included it in her complaint. (ECF No. 9 at 14.) Accordingly, this Court agrees with the PF&R’s
reasoning and finds that Plaintiff’s Title IX equal protection claim was available to her in her 2014 Action, so it is
now barred by res judicata.
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preclusive effect. (ECF No. 9 at 11.) In her view, the Fourth Circuit’s affirmance of this Court’s
dismissal is “the operative final judgment on the merits,” and because it dismissed on the basis of
her failure to state her claims, it has no preclusive effect. (ECF No. 9 at 11.)
Once again, Plaintiff’s argument relies on her distorted view of her prior case’s history.
As discussed above, Plaintiff’s claims in her 2014 Complaint were dismissed with prejudice for
failure to state a claim, and the Fourth Circuit affirmed the dismissal on the same grounds. The
Fourth Circuit did not modify the dismissal to be without prejudice or remand for this Court to
consider whether the dismissal should have been without prejudice, though it was within that
Court’s power. Plaintiff has not cited to any law supporting the proposition that a district court’s
final judgment, which would have preclusive effect if left unappealed, is stripped of its preclusive
effect by an appellate affirmance. Accordingly, this Court’s prior dismissal of Plaintiff’s 2014
Action serves as the necessary final order on the merits for the purposes of res judicata.
Accordingly, Plaintiff’s fourth objection is OVERRULED.
E. Class Action
Plaintiff’s final objection asserts that the PF&R errs in its recommendation that this Court
find that she cannot serve as a class representative. In addition to noting that Plaintiff had not yet
filed a motion for class certification, the PF&R notes that her own due process claim has already
been dismissed with prejudice in her 2014 Action. In her objection, Plaintiff argues that it is
premature to address the actual issue of class certification, but she does not address the issue of
her own claim being barred.
The Supreme Court has held that “a class representative must be part of the class and
‘possess the same interest and suffer the same injury’ as the class members.” E. Tex. Motor
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Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm.
to Stop the War, 418 U.S. 208, 216 (1974)). A plaintiff cannot serve as the class representative
where she does not have valid claims which give her the same interest and injury as the class she
seeks to represent. See Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 274 (4th
Cir. 2005). As the PF&R notes, Ms. Kerr is currently the only plaintiff, and her due process claim
is barred by res judicata. This Court finds that it is unnecessary to address any of the other class
certification criteria or decide whether such considerations would be premature if Plaintiff’s
individual due process claim were not barred by res judicata. Plaintiff has no valid claim, so she
cannot serve as a class representative.
Accordingly, Plaintiff’s fifth objection is OVERRULED.
For the foregoing reasons, the Court OVERRULES the Objections (ECF No. 20),
ADOPTS the PF&R (ECF No. 19), GRANTS Defendants’ Motion to Dismiss (ECF No. 6),
DENIES Plaintiff’s Motion to Reopen and Consolidate Related Actions (ECF No. 10), and
DISMISSES WITH PREJUDICE this matter from the Court’s docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
September 21, 2017
Case 2:16-cv-06589 Document 22 Filed 09/21/17 Page 17 of 17 PageID #: 721
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