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Zeng v. Marshall University

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

August 22, 2019

WEI-PING ZENG, Plaintiff,



         Pending before this Court is Plaintiff's Objection to the Proposed Findings and Recommendation (“PF&R”) issued by the Honorable Cheryl A. Eifert on February 27, 2019. PF&R, ECF No. 199. Magistrate Judge Eifert issued the PF&R in response to Plaintiff's Motion to Modify Amended Complaint and Join Defendants. Pl.'s Mot. to Mod. Compl., ECF No. 173. As explained below, the Court ADOPTS the Magistrate Judge's PF&R consistent with this Memorandum Opinion and Order. Accordingly, the Court DENIES Plaintiff's Motion to Modify Amended Complaint and Join Defendants.


         This action arises out of a dispute over the termination of Plaintiff Wei-Ping Zeng's employment with the Marshall University School of Medicine (“Marshall”) on June 30, 2016. Am. Compl., ECF No. 55, at 31. A full exposition of the factual background of this case is unnecessary to resolve the narrow issues presented in Plaintiff's objection, [1] but a limited review of the procedural history leading up to his objection is warranted. By the time of Magistrate Judge Eifert's final discovery conference with the parties on January 8, 2019, over nineteen months had elapsed since Plaintiff had commenced his suit. PF&R, at 3. In that time, Plaintiff had already modified his complaint twice in order to join several individual defendants and allege new causes of action. Id. at 2. Despite these prior amendments, on January 11, 2019 Plaintiff filed a motion for leave to file a third amended complaint. See Pl.'s Mot. to Mod. Compl. Specifically, Plaintiff sought permission to add claims for defamation and tortious interference, join another set of individual defendants, and modify his existing causes of action by inserting new terms and allegations. Id. at 2-5.

         Plaintiff bases his claims for defamation and tortious interference on identical factual predicates, pointing to three events in particular. First, he argues that his very discharge by Marshall on June 30, 2016 was defamatory and a tortious interference with subsequent employment opportunities. Pl.'s Obj. to PF&R, ECF No. 208, at 4. Second, he points to a “Request for Separation Information” form that Workforce West Virginia's Unemployment Compensation Division submitted to Ms. Katharine Hetzer in Marshall's human resources department. Pl.'s Mot. to Mod. Compl., at 2. The form-sent to Marshall after Plaintiff began the process of claiming unemployment benefits-requires a prior employer to choose from three reasons for a claimant's departure: “Lack of Work, ” “Quit, ” and “Discharge.” See Ex. 29, ECF No. 173-2. On July 12, 2016, Ms. Hetzer completed the form for Plaintiff. Id. She checked “Discharge, ” and noted that he was “Denied [t]enure by Promotion Tenure Committee” where the form requests elaboration. Id. Plaintiff alleges that selecting “Discharge” rather than “Lack of Work” constitutes defamation and tortious interference with employment opportunities. Pl.'s Obj. to PF&R, at 7. Third, Plaintiff points to a reference check he requested from the firm Allison & Taylor. Pl.'s Mot. to Mod. Compl., at 3. At Plaintiff's request, Allison & Taylor-a professional reference company, not a potential employer-contacted Ms. Tracey Burriss at Marshall University and requested a reference for Plaintiff in July 2018. Id. Ms. Burriss was unable to locate Plaintiff's employment record using his name alone, and offered to search again using his social security number. See Ex. 2, ECF No. 187. Allison & Taylor subsequently notified Plaintiff that the University would require a full social security number to provide employment verification, and that “[t]his request is becoming more common than not.” Id. Plaintiff declined to provide his social security number to Allison & Taylor. See Id. Nevertheless, he argues that Marshall's failure to verify his employment based on his name alone is sufficient to constitute defamation and tortious interference. Pl.'s Obj. to PF&R, at 5-6.

         Drawing upon these events, Plaintiff moves for leave to join Ms. Hetzer and Ms. Burriss as Defendants to Counts 11 (Plaintiff's due process claim) and 12 (Plaintiff's defamation and tortious interference claims) of his Proposed Amended Complaint. Pl.'s Mot. to Mod. Compl., at 5. He also seeks to join Ms. Burriss' supervisor, Bruce Felder, to both counts, asserting that Ms. Burriss acted under his direction. Id. Finally, he proposes joining Marshall University General Counsel F. Layton Cottrill, Jr. to Count 11 on the basis that he might have played a role in appointing Plaintiff's Level I grievance examiner. Id.


         In considering a party's objection to a PF&R, this Court will conduct a de novo review of those portions of the Magistrate Judge's proposed findings and recommendations “to which objection is made.” 28 U.S.C. § 636(b)(1). It follows that this Court is not required to conduct a review of factual and legal conclusions to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). Courts will uphold such findings and recommendations unless they are clearly erroneous. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). This Court is free to accept, reject, or modify the Magistrate Judge's findings or recommendations. See 28 U.S.C. § 636(b)(1).

         As Plaintiff is proceeding pro se, this Court will liberally construe his filings. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The bounds of such a liberal construction are not unlimited, and this Court “may not construct the plaintiff's legal arguments for him.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In the context of an objection to a PF&R, “[g]eneral and conclusory” objections are insufficient to warrant de novo review. McPherson v. Astrue, 605 F.Supp.2d 744, 749 (S.D. W.Va. 2009) (reasoning that “failure to file a specific objection constitutes a waiver of the right to de novo review”). Instead, a party must identify specific errors in the Magistrate Judge's findings and recommendations. See Id. Furthermore, objections that only reiterate earlier factual or legal assertions are not entitled to de novo review. Reynolds v. Saad, No. 1:17-124, 2018 WL 3374155, at *2 (N.D. W.Va. July 11, 2018).

         Courts should “freely give leave” to amend a complaint “when justice so requires.” F. R. Civ. P. 15(a)(2). “The law is well settled that leave 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.” Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (internal quotations omitted). Only the third exception-futility-is applicable here. If proposed amendments cannot withstand a motion to dismiss, they are futile. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995) (affirming district court's denial of plaintiff's motion to amend “because the proposed amendments could not withstand a motion to dismiss”). Put more colloquially: where a “proposed amendment is clearly insufficient or frivolous on its face, ” leave to amend will be denied. Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986).


         Plaintiff presents several particularized objections to the Magistrate Judge's findings, each of which is discussed extensively below. However, as a preliminary matter the Court will address those points to which the Plaintiff does not present a cognizable objection. First, objections that simply reiterate factual assertions are not entitled to de novo review. See Reynolds, 2018 WL 3374155, at *2. In objecting to the Magistrate Judge's decision to deny joining new defendants, Plaintiff presents just such a recitation of well-worn allegations. Pl.'s Obj. to PF&R, at 8. Because such an objection is insufficient to warrant de novo review, the Court adopts the Magistrate Judge's findings and denies Plaintiff leave to join new defendants.

         Moreover, Plaintiff does not address several of the Magistrate Judge's other conclusions. The Court will not undertake a de novo review of those findings to which a party does not object. See Thomas, 474 U.S. at 150. Here, Plaintiff has not objected to the denial of his motion to add new factual allegations related to the grievance process and certain allegedly false statements to Count 11 of his complaint. He likewise does not take issue with the Magistrate Judge's reasoning concerning the futility of adding Defendants Primerano, Shapiro, Gilbert, and Cottrill to his new tort claims. As Plaintiff does not object to these findings, this Court will adopt the Magistrate Judge's conclusions.

         Plaintiff advances four concrete arguments in his objection: (a) that the Magistrate Judge failed to consider the Allison & Taylor reference check and his termination with reference to defamation; (b) that the Magistrate Judge failed to consider the Request for Separation Information form and his termination with reference to tortious interference, and that she erroneously concluded that the reference check did not constitute tortious interference; (c) that the definition of “malice” justifies its inclusion in every ...

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