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Kerr v. Marshall University Board of Governors

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

February 16, 2018




         Pending before the Court is Plaintiff's Motion to Re-Open the Judgment, and for Leave to Amend Her Complaint. (ECF No. 47.) For the reasons stated below, Plaintiff's motion is DENIED.


         This matter again warrants a brief summary of Plaintiff's litigation history in this Court. The Complaint in this case, stemming from Plaintiff's attempted completion of Marshall University's Master of Arts in Teaching (“MAT”) program before receiving a “no credit” grade for the program's required MAT Level III Clinical Experience student teaching course, was originally filed on March 14, 2014. (ECF No. 1.) That Complaint alleged the following seven causes of action: defamation, tortious interference with a business expectancy, the tort of outrage, due process violations, equal protection violations under two theories, and a violation of the Fair Labor Standards Act. Defendants filed a Motion to Dismiss on May 14, 2014, (ECF No. 13), which this Court granted in a memorandum opinion entered March 26, 2015, (ECF No. 28). That memorandum opinion and order dismissed each of Plaintiff's claims for failure to state a claim on which relief could be granted and closed this case. (See id.)

         Plaintiff appealed the judgment of this Court, and after hearing oral arguments, the Fourth Circuit entered its 42-page published decision on May 24, 2016, affirming this Court's opinion without remanding any aspect of the case for reconsideration. (ECF No. 41.) See Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62 (4th Cir. 2016). The court further denied Plaintiff's petition for rehearing, (ECF No. 45), and Plaintiff did not file a petition for certiorari with the Supreme Court. Plaintiff then filed the pending Motion to Re-Open the Judgment, and for Leave to Amend her Complaint on June 30, 2017-over thirteen months after the Fourth Circuit affirmed this Court's opinion dismissing the above-styled action. (ECF No. 47.) Before turning to this motion, the Court finds that a discussion of a subsequent and nearly identical case Plaintiff filed in this Court in 2016 is insightful.

         Less than two months after the Fourth Circuit's decision affirming this Court's opinion closing this case, Plaintiff filed a new complaint on July 22, 2016, re-alleging her defamation claim, due process claim, and equal protection claim based on sexual orientation discrimination. (See Civil Action No. 2:16-cv-06589 [hereinafter 2016 Action], ECF No. 2.) However, in the new case, the Complaint raised Plaintiff's equal protection claim under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and attempted to plead her due process claim as a class action suit. (See id.) Defendants again filed a motion to dismiss in the subsequent case, arguing that each of the claims in the new complaint was barred by res judicata and the applicable statutes of limitations. (See 2016 Action, ECF No. 6.) This Court entered its memorandum opinion and order on September 21, 2017, granting the motion to dismiss and closing the 2016 Action. (See 2016 Action, ECF No. 22.)

         In the memorandum opinion and order disposing of the 2016 Action, this Court specifically addressed Plaintiff's misapprehension about the result of her previous case-in which the pending motion was filed-and the effect of the Fourth Circuit's opinion. (See Id. at 4-8 (“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.”).) Among other reasons, this Court found that res judicata and application of the Fourth Circuit's mandate affirming the Court's prior opinion served as barriers to Plaintiff's attempt to file a second and nearly identical lawsuit against the same seven Defendants. (See Id. at 8-10, 12-15.) Predictably, Plaintiff appealed that judgment to the Fourth Circuit in October 2017, and that appeal is currently being held in abeyance pending resolution of the pending motion currently before the Court in the above-styled matter. (See 2016 Action, ECF No. 31.) The Court now turns to the pending motion in Plaintiff's first case.


         In considering Plaintiff's motion, the Court is mindful of the fact that Plaintiff is acting pro se, and her pleadings will be accorded liberal construction.[1] See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). She pursues relief from the previous judgment via Federal Rule of Civil Procedure 60(b)(6), and she seeks leave to amend her original Complaint under Federal Rule of Civil Procedure 15(a)(2). Procedurally, Plaintiff has used the proper vehicles in her attempt to persuade this Court to vacate its previous judgment and grant her leave to amend the Complaint filed well over three years before the current motion.

         Plaintiff's motion first notes that her original Complaint in this case was never amended during the litigation's pendency and claims that her appeal to the Fourth Circuit “was successful in its purpose and substance.” (ECF No. 47 at 2.) She relies primarily on Foman v. Davis, 371 U.S. 178, 182 (1962), and Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006) (en banc), in support of the proposition that “entry of judgment is no exception to the doctrine that leave to amend should be liberally granted . . . so that claims may be decided on their merits.” (ECF No. 47 at 3, 6-8.) Plaintiff avers that Defendants cannot show that bad faith, unfair prejudice, or futility exists in these circumstances to defeat her ability to amend the Complaint. (See Id. at 12-14.) She reiterates several of the Fourth Circuit's findings as to the insufficiencies of her original Complaint, notes how her proposed amended complaint resolves those shortcomings, and argues that because both this Court and the Fourth Circuit dismissed her Complaint on the basis that it failed to state a claim, there was no judgment on the merits for those claims. (See Id. at 9-11 (“Thus, a pre-answer 12(b)(6) dismissal affirmed on appeal for pleading insufficiency is just that - a judgment on the operative pleading's merits, not a judgment that the underlying claims lacked merit. . . . Hence, nothing in the [Fourth Circuit's] holding barred Plaintiff from amending her complaint to plead those missing elements . . . .” (emphasis in original)).)

         Defendants' response to the motion first focuses on the arduous standard of Rule 60(b)(6), arguing that Plaintiff does not provide adequate justification allowing this Court to provide her relief from the prior judgment and that the motion is inappropriate and untimely. (See ECF No. 48 at 5-11 (noting that Plaintiff waited “more than 13 months after losing her appeal to the Fourth Circuit” to move for leave to amend).) Defendants also state that they would be prejudiced if the Court were to set aside its previous judgment due to the resources expended in response to Plaintiff's numerous filings. (Id. at 10-11.) The response harps on Plaintiff's “litigation choices” during this case's pendency and emphasizes that a Rule 60(b) motion cannot be substituted for an appeal. (Id. at 11-13.) Just as Defendants argue that Plaintiff cannot meet the standard under Rule 60(b), Defendants aver that Plaintiff similarly fails to provide ample justification for leave to amend her Complaint post-judgment and post-appeal. (See Id. at 14-18 (characterizing Plaintiff's argument as “a clear effort to rely on the more liberal amendment standard set forth in Rule 15”).)

         Plaintiff's reply continues to assert that her new and more detailed amended complaint meets the “plausibility” standard of Federal Rule of Civil Procedure 12(b)(6), which her original Complaint did not satisfy when it was dismissed three years ago. (See ECF No. 49 at 2-13 (“This is a run-of-the-mill case where leave to amend after 12(b)(6) dismissal serves the interests of truth, and should be granted so that litigation can finally begin.”).) She again details how her sexual orientation discrimination claim, her due process claim, and her defamation claim could now withstand a Rule 12(b)(6) challenge as pleaded in the proposed amended complaint. (See Id. (“Plaintiff's thorough amendments remediate every basis for [the Fourth Circuit's] affirmance of the 12(b)(6) dismissal . . . .”).) Plaintiff proceeds to inform the Court of “troubling fact-intensive questions about the practices of a taxpayer-supported state university” before arguing that there is no bad faith, delay, or prejudice that would preclude her ability to amend the Complaint under Foman and Laber. (See Id. at 13-20.)

         The Fourth Circuit has been clear as to the interplay between Federal Rules of Civil Procedure 15(a) and 60(b) when a plaintiff relies on both in seeking leave to amend a complaint post-judgment. On this point, Plaintiff is correct. While the Fourth Circuit instructs district courts not to grant a post-judgment motion for leave to amend under Rule 15(a) without first vacating the prior judgment under either Rule 59(e) or 60(b), see Calvary Christian Ctr. v. City of Fredericksburg, 710 F.3d 536, 539 (4th Cir. 2013), it also directs courts to ignore the standard associated with the post-judgment motion and focus on the standard for Rule 15(a). See Laber, 438 F.3d at 427; accord Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009). “The court need only ask whether the amendment should be granted, just as it would on a prejudgment motion to amend pursuant to [Rule] 15(a). In other words a court should evaluate a postjudgment motion to amend the complaint ‘under the same legal standard as a similar motion filed before judgment was entered-for prejudice, bad faith, or futility.'”[2] Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 470-71 (4th Cir. 2011) (quoting Laber, 438 F.3d at 427). It is improper for this Court to focus on the Rule 60(b) motion without considering whether Plaintiff's proposed amended complaint, at this stage of the proceedings, would be prejudicial, futile, or was made in bad faith. See, e.g., Hart v. Hanover Cty. School Bd., 495 F. App'x 314, 316 (4th Cir. 2012) (citing Murrow Furn. Galleries, Inc. v. Thomasville Furn. Indus., Inc., 889 F.2d 524, 526 n.3, 529-30 (4th Cir. 1989)).

         Pursuant to Rule 15(a)(2), “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). “[L]eave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 409 (4th Cir. 2013) (alteration in original) (emphasis in original) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (internal citation omitted)). “Whether an amendment is prejudicial will often be determined by the nature of the amendment and its timing.” Laber, 438 F.3d at 427. “A common example of a prejudicial amendment is one that ‘raises a new legal theory that would require the gathering and analysis of facts not already considered by” the defendants. Id. (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (“An amendment is not prejudicial, by contrast, if it merely adds an additional theory of recovery to the facts already pled and is offered before any discovery has occurred.”). Further, delay alone “is an insufficient reason to deny a motion to amend, ” but “the further the case progressed before judgment was entered, the more likely it is that the amendment will prejudice the defendant or that 3 James Wm. Moore et al., Moore's Federal Practice § 15.13[2] (3d ed. 2017) (citations omitted). a court will find bad faith on the plaintiff's part.” Matrix Capitol Mgmt. Fund, LP, 576 F.3d at 193 (quoting Laber, 438 F.3d at 427); see Laber, 438 F.3d at 427 (“For this reason, a district court may not deny such a motion simply because it has entered judgment against the plaintiff-be it a judgment of dismissal, a summary judgment, or a judgment after a trial on the merits.”). For example, the Fourth Circuit determined in Mayfield v. National Ass'n for Stock Car Auto Racing, Inc. that the plaintiffs “ha[d] no excuse for failing to include [] additional allegations . . ...

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