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Kerr v. Bailey

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

December 4, 2019

LISA MARIE KERR, an individual, Plaintiff,
v.
SANDRA BAILEY, TERESA EAGLE, DAVID PITTENGER, JOHN ANDREW HESS, ANDREW PATRICK BALLARD, individuals in personal capacity, JEROME GILBERT, an individual in personal and official capacity, and MARSHALL UNIVERSITY BOARD OF GOVERNORS, an entity in personal and official capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

         Pending before the Court is a Motion to Dismiss by Defendants Sandra Bailey, Teresa Eagle, David Pittenger, John Andrew Hess, Andrew Patrick Ballard, Jerome Gilbert, and Marshall University Board of Governors (“MUBG”) (collectively referred to as the “2019 Defendants”). ECF No. 15. The 2019 Defendants also have filed a Motion for Sanctions. ECF No. 20. Plaintiff Lisa Marie Kerr opposes these motions. She also has filed a Motion for Leave to File Surreply, and her Surreply, in Opposition to Defendants' Motion for Sanctions. ECF No. 24. For the following reasons, the Court GRANTS Defendants' Motion to Dismiss, DENIES WITHOUT PREJUDICE Defendants' Motion for Sanctions, and DENIES AS MOOT Plaintiffs' Motion for Leave to File Surreply, and her Surreply, in Opposition to Defendants' Motion for Sanctions.

         I.

         RELEVANT FACTUAL AND PROCEDURAL HISTORY

         This action is the third civil suit Plaintiff has brought arising from her enrollment in Marshall University's Master of Arts in Teaching (“MAT”) program. In the fall of 2013, Plaintiff was given a “no credit” grade for her student teaching. As the student-teaching practicum is a requirement of the MAT program, Plaintiff did not receive her degree, nor did she receive her West Virginia teaching license. After failing to get relief through Marshall University's grade-appeals process, Plaintiff, a licensed attorney, filed her first action pro se in the Charleston Division of this District on March 14, 2014. Kerr v. Marshall Univ. Bd. of Governors, 2:14-cv-12333 (Mar. 14, 2014) (“2014 Complaint”).

         In her first action, Plaintiff named MUBG; Gene Kuhn, the public school teacher who supervised Plaintiff's student teaching; Judith Southard, the practicum supervisor for Marshall University; Sandra Bailey, the Program Coordinator for Marshall; Teresa Eagle and Lisa Heaton, who both served as Deans of Marshall University's College of Education; and David Pittenger, the Dean of Marshall University's Graduate Studies (collectively referred to as the “Original Defendants”). In her Complaint, Plaintiff alleged seven claims:

(1) defamation against . . . MUBG, Kuhn, Southard, and Bailey; (2) tortious interference with a business expectancy against . . . MUBG, Kuhn, Southard, Bailey, and Eagle; (3) the tort of outrage against . . . MUBG, Kuhn, Southard, Bailey, and Eagle; (4) a violation of Kerr's due process rights under 42 U.S.C. § 1983 against . . . MUBG, Southard, Bailey, and Eagle; (5) a violation of Kerr's equal protection rights pursuant to § 1983, on the basis of Kerr's sexual orientation, against . . . MUBG, Southard, Bailey, Eagle, Heaton, and Pittenger; (6) a violation of Kerr's equal protection rights under § 1983, as a “class of one, ” against . . . 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 . . . MUBG and Kuhn.

Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 70-71 (4th Cir. 2016). The Original Defendants moved to dismiss Plaintiff's action under Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. Id. at 71.

         As the case was filed pro se, it was referred to a magistrate judge for the submission of proposed findings and recommendations (PF&R) pursuant to 28 U.S.C. § 636(b)(1)(B). After considering the issues, the magistrate judge recommended the district court grant the Original Defendants' motion to dismiss. Kerr, No. 2:14-cv-12333, 2015 WL 1405540, at *30 (S.D. W.Va. Feb. 4, 2015). Upon review, the Honorable Thomas E. Johnston, District Judge, denied Plaintiff's objections to the PF&R and dismissed the action. Kerr, No. 2:14-cv-12333, 2015 WL 1405537, at *26 (S.D. W.Va. Mar. 26, 2015). On appeal, the Fourth Circuit Court of Appeals affirmed Judge Johnston's decision. Kerr, 824 F.3d at 84.

         Not deterred by these rulings, Plaintiff returned to the district court and filed her second action on July 22, 2016, against the exact same Defendants she named in the 2014 Complaint. Kerr v. Marshall Univ. Bd. of Governors, No. 2:16-cv-06589 (S.D. W.Va. July 22, 2016) (“2016 Complaint”). In the 2016 Complaint, Plaintiff re-alleged her defamation, due process, and equal protection claims. She also asserted a class action due process claim.

         The Original Defendants moved to dismiss the second action as being barred by res judicata and the statute of limitations. In response, on October 26, 2016, Plaintiff filed a Motion to Reopen and Consolidate her 2014 case with her 2016 action. Kerr, 2:16-cv-06589, ECF No. 10.

         In his PF&R, the magistrate judge recommended the Original Defendants' motion be granted and Plaintiff's motion be denied. Kerr, No. 2:16-cv-06589, ECF No. 19. Over Plaintiff's objections, Judge Johnston adopted the PF&R, dismissed Plaintiff's second Complaint, and denied her motion to reopen and consolidate her first two actions. Kerr, No. 2:16-cv-06589, 2017 WL 4176229 (S.D. W.Va. Sept. 21, 2017).

         In his Memorandum Opinion and Order, Judge Johnston found Plaintiff obviously was using her 2016 Complaint merely as a vehicle to amend her 2014 Complaint. Id. at *2. However, Judge Johnston ruled Plaintiff could not amend her 2014 Complaint because it was dismissed with prejudice, and the Fourth Circuit affirmed that dismissal on the same grounds as the district court without remanding the case or indicating the decision should be without prejudice. Id. at *5-6. In addition, Judge Johnston determined the 2016 action was barred by the statute of limitations because West Virginia's savings statute did not apply as the 2014 action was dismissed on the merits. Id. at *6. Given the merit-based dismissal, Judge Johnston further held her 2016 action was barred by res judicata. Id. at *6-9.[1]

         While Plaintiff pursued her 2016 action, Plaintiff also filed a Motion to Re-Open the Judgment, and for Leave to Amend her Complaint in her 2014 case on June 30, 2017. Kerr, 2:14-cv-12333, ECF No. 47 (June 30, 2017). Judge Johnston denied the motion. In doing so, he specifically found “Plaintiff has strategically drug Defendants through litigious waters for the better part of four years in two separately filed actions. . . . [T]he Court is convinced that indications of bad faith coupled with the additional prejudice it would cause Defendants are reason enough to forbid ...


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