Russell v. Killian

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DEBORAH RUSSELL, )

)

Plaintiff, )

)

v. ) Case No. 3:22-cv-00574

) Judge Aleta A. Trauger

WILLIAM C. KILLIAN et al., )

)

Defendants. )

MEMORANDUM and ORDER

Before the court are pro se plaintiff Deborah Russell’s Objections (Doc. No. 50) and

supporting Memorandum (Doc. No. 51), opposing the Magistrate Judge’s Report and

Recommendation (“R&R”) (Doc. No. 45), which recommends that the defendants’ Motion to

Dismiss (Doc. No. 26) be granted and that this case be dismissed for lack of subject matter

jurisdiction. The R&R also recommends that the plaintiff’s motions for leave to file her complaint

and an affidavit under seal (Doc. Nos. 2, 9) be denied. The defendants have filed a response

(designated as a “Reply”) to the Objections. (Doc. No. 60.)

In addition, at the same time she filed her Objections,1 the plaintiff also filed a Motion for

Leave to Amend & Supplement Complaint (Doc. No. 52) and a Motion for Leave to File

Confidential Client-Privileged Communications and Protected Trade Secret Information Under

Seal (Doc. No. 54), both supported by Memoranda of Law (Doc. Nos. 53, 55), her proposed sealed

Amended Supplemented Complaint (Doc. No. 56), and a Corrected Amended Supplemented

1 The plaintiff filed a timely request for an extension of her deadline for filing the

Objections, due to a medical emergency (Doc. No. 46), which the court granted (Doc. No. 47).

Complaint (Doc. No. 58), to which are attached more than thirty pages of exhibits. These include

the plaintiff’s Affidavit, the Affidavit of Lisa O’Dell, what appear to be printed pages from the

defendants’ listings in Chattanooga’s Top Rated Local® Legal Services, and a letter dated August

3, 2021 from John Cavett, on behalf of the Cavett, Abbot & Weiss, PLLC law firm, to the attorneys

for the opposing parties in the related lawsuit, regarding those attorneys’ Rule 11 Motion. (Doc.

No. 58, at 30–67.) The defendants have filed Responses in opposition to the plaintiff’s motions.

For the reasons set forth herein, the plaintiff’s Objections to the R&R will be overruled,

and the R&R will be accepted in its entirety. The defendants’ Motion to Dismiss will be granted,

and the plaintiff’s Motion for Leave to Amend will be denied as futile. The plaintiff’s various

motions for leave to file under seal will all be denied, and this case will be dismissed without

prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

The original Verified Complaint, filed on August 2, 2022 (Doc. No. 1), asserts claims

against defendants William C. Killian, John C. Cavett, Barry L. Abbott, and the law firm Cavett,

Abbott & Weiss, PLLC (“CAB”), based on defendant Killian’s representation of plaintiff Deborah

Russell in a related federal lawsuit also filed in this court (“related lawsuit”).2 The Complaint

asserts that the plaintiff is a citizen of Davidson County, Tennessee, that the individual defendants

all reside in Chattanooga, Tennessee, and that CAB is based in Chattanooga, Tennessee. (Doc. No.

1 ¶¶ 1–7.) The Complaint identifies 42 U.S.C. § 1983 as a basis for the court’s exercise of

jurisdiction and asserts that the defendants conspired to prevent Russell from “accessing

fundamental due process,” in violation of § 1983. (Doc. No. 1, at 4, 36.) Russell also asserts that

the defendants engaged in wire fraud and conspiracy in violation of 18 U.S.C. § 1343, 1348, and

2 This lawsuit is styled Russell v. Tanner, No. 3:20-cv-01028 (M.D. Tenn.).

241 (id. at 4), and that they engaged in a number of state law torts, including sexual harassment,

slander and defamation, civil conspiracy under Tennessee common law, breach of fiduciary duty

and duty of loyalty, legal malpractice, fraud, false advertising and deceptive business practices,

fraudulent concealment and intentional misrepresentation (id. at 37). She seeks injunctive relief

and damages in the amount of $600,000,000. (Id. at 38.) The Complaint was accompanied by a

Motion to Seal and supporting Memorandum (Doc. Nos. 2, 3), seeking to seal the Complaint on

the basis that it included “specific detailed client privileged communications between the Plaintiff

and her former counsels and law firm of record.” (Doc. No. 2, at 2.)

A few days after filing the Complaint, the plaintiff filed her August 8, 2022 Affidavit under

seal (Doc. No. 11), along with another Motion for Leave to File under Seal and a separate (but

redundant) Memorandum (Doc. Nos. 9, 10).3 In these documents, the plaintiff asserts that her

Affidavit contains “explicit language that evidence[s] the sexual harassment claims in [her]

Complaint” and “specific detailed confidential privileged communications” that took place

between her and her former attorneys. (Doc. No. 10, at 2.)

The defendants responded to the Complaint, initially, by filing a Motion to Strike under

Rule 12(f). (Doc. No. 20, at 1.) Shortly thereafter, they filed their Motion to Dismiss and supporting

Memorandum (Doc. Nos. 26, 27), arguing that the plaintiff’s claims should be dismissed under

Rule 12(b)(1), (2), (3), (5), and/or (6), for lack of subject matter jurisdiction, lack of personal

jurisdiction, improper venue, insufficient service of process, and failure to state a claim upon which

relief can be granted. The plaintiff then filed a Motion for Summary Judgment, and the defendants

filed a Motion to Strike and Objections to the Motion for Summary Judgment.

3 This is the same Affidavit as the one filed with her proposed Amended Complaint.

The R&R recommends that the Motion to Dismiss be granted on the basis that the court

lacks subject matter jurisdiction over the claims. To reach that conclusion, the Magistrate Judge

found, first, that the lack of subject matter jurisdiction is not waivable or forfeitable and, instead,

is an issue the court has a continuing obligation to assess, even if the parties do not raise it. The

Magistrate Judge determined as a matter of law that the Complaint did not establish the existence

of federal question jurisdiction, because the federal laws cited by the plaintiff—18 U.S.C. §§ 241,

1343, and 1349—are criminal statutes that do not create private rights of action and, likewise, that

the Complaint’s cursory reference to § 1983 is not sufficient to confer federal question jurisdiction,

because none of the defendants is alleged to be a state actor or to have acted under color of state

law. The Magistrate Judge also determined that the plaintiff’s allegations do not give rise to

diversity jurisdiction, because the plaintiff and all of the defendants are citizens and residents of

Tennessee. Because the Complaint did not allege a basis for federal question or diversity

jurisdiction, the Magistrate Judge recommends dismissing the Complaint for lack of subject matter

jurisdiction, without addressing the defendants’ other arguments.

The R&R also addresses the first two Motions to Seal. The Magistrate Judge found that the

plaintiff had not established good cause to overcome the strong presumption that judicial filings

should be open to the public, largely because the plaintiff had waived attorney-client privilege by

bringing legal malpractice claims against the attorneys with whom she had the subject

communications. The Magistrate Judge, therefore, recommends that the Motions to Seal be denied.

The plaintiff’s Objections are largely addressed to extraneous matters. Regarding the

jurisdictional issue, she argues only that she should be accorded leave to amend her pleading and

that her proposed Amended Complaint “specifically sets forth the federal statutes that specifically

designate federal court as the proper jurisdiction for Plaintiff’s claims.” (Doc. No. 50, at 2.)

Regarding the recommendation that the Motions to Seal be denied, the plaintiff references a

discovery conflict that was resolved in the context of the related case and documents that allegedly

consist of trade secrets but were not among the documents filed in this case. She also claims that

the “unsealing of Plaintiff’s filings made under seal” would “directly provide[] the Defendants in

the related case with a shocking windfall of information to which they would never be legally

entitled by any other means.” (Doc. No. 50, at 9–10.) It is unclear what documents she believes

would even be relevant to the related filing.

In their Response to the Objections, the defendants correctly point out that the plaintiff’s

Objections fail to specify what findings of fact or conclusions of law in the R&R are actually

erroneous or to provide any substantive argument as to how the court may properly exercise subject

matter jurisdiction. They further argue that the subsequently filed Motion to Amend is not grounds

for rejecting the R&R.

II. STANDARD OF REVIEW

Within fourteen days after being served with a report and recommendation any “party may

serve and file specific written objections to [a magistrate judge’s] proposed findings and

recommendations.” Fed. R. Civ. P. 72(b)(2) (emphasis added). The district court must review de

novo any portion of the report and recommendation “that has been properly objected to.” Fed. R.

Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). In conducting its review, the district court “may

accept, reject, or modify the recommended disposition; receive further evidence; or return the

matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.

§ 636(b)(1).

However, the district court is not required to review—under a de novo or any other

standard—those aspects of the report and recommendation to which no objection is made. Thomas

v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the magistrate judge’s findings

and rulings to which no specific objection is filed. Id. at 151. “The filing of vague, general, or

conclusory objections does not meet the requirement of specific objections and is tantamount to a

complete failure to object.” Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001); see also Langley

v. DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007) (issues raised in a “perfunctory

manner, unaccompanied by some effort at developed argumentation,” are waived (quoting Indeck

Energy Servs., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir. 2000))). Likewise, “[a]

general objection to the entirety” of a magistrate judge’s report and recommendation has the same

effect as a complete failure to object. Howard v. Sec’y of Health & Human Servs., 932 F.2d 505,

509 (6th Cir. 1991). Finally, arguments made in an objection to a magistrate judge’s report and

recommendation that were not first presented to the magistrate judge for consideration are deemed

waived. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).

Although pro se pleadings and filings are held to less stringent standards than those drafted

by lawyers, see, e.g., Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), pro se litigants are not

entirely exempt from the requirements of the Federal Rules of Civil Procedure. See, e.g., Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989).

III. ANALYSIS

A. Motion to Dismiss

The plaintiff’s Objections to that portion of the R&R recommending dismissal of the

Complaint are insufficiently specific to warrant review. The court, moreover, has reviewed the

R&R and finds no error in the conclusion that the court lacks subject matter jurisdiction over the

claims set forth in the original Complaint. The court, therefore, will accept the R&R and dismiss

the original Complaint in its entirety for lack of subject matter jurisdiction.

The court further finds, in the alternative, that, even if the original Complaint had stated

substantial, non-frivolous federal claims over which the court could properly exercise federal

question jurisdiction and that would, at the same time, support supplemental jurisdiction over the

state law claims based on 28 U.S.C. § 1367(a), the federal claims would still be subject to dismissal

under Rule 12(b)(6) for failure to state a claim for which relief may be granted, for the same reasons

as those referenced by the Magistrate Judge. Specifically, the criminal statutes cited by the plaintiff

do not create private rights of action, and the plaintiff fails to allege facts suggesting that any of

the defendants is a state actor, for purposes of a claim under 42 U.S.C. § 1983. Because the federal

claims would be subject to dismissal under Rule 12(b)(6), the court would decline to exercise

supplemental jurisdiction over the state law claims, which would again result in dismissal of the

case as a whole. Accord Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1255 (“After a

12(b)(6) dismissal, there is a strong presumption in favor of dismissing supplemental claims.”

(citations omitted)); see also Gamel v. City of Cincinnati, 625 F.3d 949, 952 (6th Cir. 2010)

(“When all federal claims are dismissed before trial, the balance of considerations usually will

point to dismissing the state law claims, or remanding them to state court if the action was

removed.” (quoting Musson, 89 F.3d at 1254–55)); 28 U.S.C. § 1367(c)(3) (“The district courts

may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the

district court has dismissed all claims over which it has original jurisdiction.”). For this reason as

well, the court accepts the recommendation that the Motion to Dismiss be granted.

B. Motions to Seal

The plaintiff’s Objections to the denial of her Motions to Seal (Doc. Nos. 2, 9) are similarly

vague. The court, moreover, has examined the documents the plaintiff seeks to file under seal and

finds no basis for sealing the documents. The documents the plaintiff seeks to file under seal do

not contain any information that could remotely be characterized as trade secret or confidential

information. Insofar as the plaintiff alleges that the defendants engaged in sexual harassment and

legal malpractice, these allegations do not justify sealing the Complaint or the plaintiff’s Affidavit.

As the Magistrate Judge recognized, “[t]he public has a strong interest in obtaining the information

contained in the court record.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299,

305 (6th Cir. 2016) (quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180

(6th Cir. 1983)). The plaintiff has not carried the burden of overcoming the “‘strong presumption

in favor of openness’ as to court records.” Id. (quoting Brown, 710 F.2d at 1179).

The plaintiff’s Objections to the Magistrate Judge’s recommendation that the Motions to

Seal (Doc. Nos. 2, 9) be denied will be overruled.

The court further finds that the Motion for Leave to File Confidential Client-Privileged

Communications & Protected Trade Secret Information Under Seal (Doc. No. 54), filed with her

Motion for Leave to Amend & Supplement the Complaint, is similarly without merit. Again, the

documents the plaintiff filed do not contain any trade secrets and, as the Magistrate Judge

concluded, to the extent the plaintiff’s filings contain attorney-client communications, the plaintiff

has waived the confidentiality of those communications.

IV. MOTION TO AMEND

Finally, the court will also deny the plaintiff’s Motion to Amend & Supplement Complaint.

While Rule 15 provides that leave to amend a pleading should be “freely given when justice so

requires” Fed. R. Civ. P. 15(a), a motion for leave to amend may be denied on the grounds of

futility, “if the court concludes that the pleading as amended could not withstand a motion to

dismiss.” Midkiff v. Adams Cty. Reg’l Water Dist., 409 F.3d 758, 767 (6th Cir. 2005); see also

Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) (“A proposed

amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.”

(quoting Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)).

In considering whether a pleading could survive a motion under Rule 12(b)(6), the court

will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as

true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d

471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). “Federal

Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing

that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The complaint’s allegations, however, “must

be enough to raise a right to relief above the speculative level.” Id. To establish the “facial

plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal

conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the

plaintiff must plead “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

In this instance, the plaintiff attempts to state a claim under the federal Defend Trade

Secrets Act (“DTSA”), which would confer federal jurisdiction over that claim and supplemental

jurisdiction over her state law claims under 28 U.S.C. § 1367(a). The proposed Amended

Complaint, however, fails to state a claim under the DTSA for which relief may be granted.

Under the DTSA, “[a]n owner of a trade secret that is misappropriated may bring a civil

action under this subsection if the trade secret is related to a product or service used in, or intended

for use in, interstate or foreign commerce.” 18 U.S.C § 1836(b)(1). In order to plead a claim under

the DTSA, a plaintiff must allege that she “lawfully owned information of independent economic

value that [she] took reasonable measures to keep secret, and that the defendant under

consideration either acquired, disclosed, or used, improperly.” ATS Grp., LLC v. Legacy Tank &

Indus. Servs. LLC, 407 F. Supp. 3d 1186, 1197 (W.D. Okla. 2019) (citations omitted); see also

BNA Assocs., LLC v. Goldman Sachs Specialty Lending Grp., L.P., 602 F. Supp. 3d 1059, 1064

(M.D. Tenn. 2022) (Crenshaw, C.J.) (“To qualify as a trade secret . . . , information must . . .

[d]erive[] independent economic value . . . from not being generally known to. . . persons who can

obtain economic value from its disclosure or use[, and] it must be the subject of efforts that are

reasonable under the circumstances to maintain its secrecy.” (internal quotation marks and

citations omitted)).

The proposed Amended Complaint lacks any allegations remotely suggesting the nature of

the trade secrets that were allegedly misappropriated. The plaintiff also fails to allege that the trade

secrets were related to a product used or intended for use in interstate commerce. The court finds,

therefore, that the proposed Amended Complaint fails to state a claim under the DTSA for which

relief could be granted. Because the proposed Amended Complaint does not assert a viable federal

claim, the court would decline to exercise supplemental jurisdiction over the state law claims,

rendering the proposed amendment futile.

V. CONCLUSION AND ORDER

For the reasons set forth herein, the plaintiff’s Objections (Doc. No. 50) to the R&R (Doc.

No. 45) are OVERRULED. The court ACCEPTS the R&R in its entirety, as supplemented

herein. The Motion to Dismiss (Doc. No. 26) is GRANTED, and the original Complaint is

DISMISSED for lack of subject matter jurisdiction.

The Motions to Seal (Doc. Nos. 2, 9, 54) are DENIED.

The Motion for Leave to Amend & Supplement Complaint (Doc. No. 52) is DENIED as

futile.

All other pending motions are DENIED AS MOOT.

This case is DISMISSED WITHOUT PREJUDICE.

11

It is so ORDERED.

This is the final Order in this action.

ALETA A. TRAUGER

United States District Judge