United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
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
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,  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.
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.
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
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. §
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).
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).
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.
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
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 ...