United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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. 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,
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.
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;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.
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. (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
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.
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. 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. 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
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
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,  and in several instances focused
on different legal insufficiencies, it ultimately affirmed
this Court's dismissal on the same
Application of Fourth Circuit Mandate
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
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 ...