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