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Kerr v. Marshall University Board of Governors

United States District Court, S.D. West Virginia, Charleston Division

September 21, 2017

LISA MARIE KERR, Plaintiff,
v.
MARSHALL UNIVERSITY BOARD OF GOVERNORS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE.

         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.

         I. BACKGROUND

         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 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 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

         II. LEGAL STANDARD

         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 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.

         III. DISCUSSION

         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 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 her Complaint.

         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 claims Plaintiff had attempted to raise failed to state a claim upon which relief could be granted.[4] 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 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 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 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 ...


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