Petition for Writ of Certiorari — Rhonda Meisner, Petitioner v. Zymogenetics, Inc., et al.

No.

In the

'uprtnte Court of the Oniteb-tat

4 eg

RHONDA MEISNEIR, Petitioner

V.

ZYMOGENETICS, Inc, a wholly owned subsidiary of

Bristol Myers Squibb, Inc. ZYMOGENETICS, LLC,

a wholly owned subsidiary of ZYMOGENETICS,

Inc.; BRISTOL MYERS SQUIBB, Inc. TRACEY

CALDARAZZO; JEFF FORTINO;STEPHANIE

LEWIS, INDIVIDUALLY AND AS A MEMBER OF

JACKSON LEWIS, PC, GREENVILLE; JACKSON

LEWIS, LLP, GREENVILLE; JACKSON LEWIS,

PC; JOHN DOES AND JANE DOES 1-10 (WHOSE

NAME IS UNKNOWN OR AS YET DISCOVERED)

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Rhonda Meisner

P.O. Box 689

Blythewood, S.C. 29016

Pegasus333@icloud.com

(803)206-3402

This Honorable Court recently settled the

dispute for determining the citizenship of entities

other than humans and corporations and determined

in Americold Realty Trust "While humans and

corporations can assert their own citizenship, other

entities take the citizenship of their members."

Americold Realty Trust v. ConAgra Foods, Inc., No.

14-1382, 2016 U.S. LEXIS 1652 (U.S. Mar. 7, 2016).

In Garden, this Honorable Court interpreted

Congress' use of the word "corporation" in 28 U.S.

Code § 1332 (c)(1) as not applying to unincorporated

partnerships, such as, limited liability partnerships

(LLP's) for the purposes of determining the

citizenship, of the entity. For unincorporated

partnerships UP's), this Court determined the

citizenship of the partnership is the citizenship of

each of the partners. Garden vArkoma Assocs., 494

U.S. 185,195-96 (1990).

QUESTIONS PRESENTED

Whether the Fourth Circuit properly retained

jurisdiction over a removed case when the

petitioner filed a motion to remand within

thirty days that alleged fatal defects in the

appellee's notice of removal pursuant to 28

U.S.C. 1447(c).

To reconcile Erie, Byrd, and Semtek can a

plaintiff rely on state res-judicata laws when

the slander claims implicated in the resjudicata analysis were based on supplemental

jurisdiction pursuant to 28 U.S.C. §1367?

II

Did the Fourth Circuit err when it dismissed

the case pursuant to Rule 12 (b)(6).

Did the Fourth Circuit properly deny the

motion for recusal?

Parties to the Proceedings

List of Parties

The petitioner Rhonda Meisner is an

individual.

Zymogenetics, LLC is a non-corporate

artificial entity that is wholly owned by

Zymogenetics, Inc and Bristol Myers

Squibb, Inc.

Zymogenetics, Inc., is a corporation that is

wholly owned by Bristol Myers Squibb, Inc.

Bristol Myers Squibb, Inc. is a corporation.

Jeff Fortino, is an individual.

Tracey Caldarazzo, is an individual.

Stephanie E. Lewis, is an individual

implicated in her individual capacity and

her capacity as member of Jackson Lewis,

PC and Jackson Lewis, LLP.

Jackson Lewis, LLP is a non-corporate

artificial partnership.

Jackson Lewis, PC, is a professional

corporation.

1O.John and Jane Does (1-10) represents

individuals or companies whose name is

unknown or yet discovered.

Corporate Disclosure

Pursuant to Rule 29.6 the petitioner is an individual.

111

TABLE OF CONTENTS

Page

Questions Presented .......................... . ..........,,,,,,,i

Parties to the Proceedings ...................................ii

Opinion Below...................................................3

Jurisdiction......................................................4

Reasons for Granting the Petition....................4

Background...................................................5

Argument.....................................................8

The Notice of Removal is

I.

defective ...........................................8

The Notice does not make the requisite

citizenship allegations for diversity

jurisdiction..........................................8

The allegations in the state court filed

complaint are insufficient to establish

diversity jurisdiction.............................9

The notice of removal made inaccurate

statements regarding service of process and

failed to attach the state court filed documents

that included the affidavits of service of

process pursuant to 28 U.S.C. § 1446 (a).....13

The circuit court determined the negligent

retention claim is governed by South Carolina

Workers Compensation laws.....................14

There is no fraudulent joinder when the claim

against the non-diverse defendants is

recognized under state law.......................16

The appellee defendants did not allege

outright fraud in the pleadings........19

Application of an affirmative defense

should not be allowed in a fraudulent

joinder analysis when the state

recognizes the cause of action against

the non-diverse defendant................19

iv

The contract of engagement between

appellee-defendant Stephanie Lewis

and appellee-defendant Bristol Myers

Squibb, Inc. is not in the record......20

Complaint Alone rule for federal question

cases should be used in a fraudulent joinder

analysis.........................................24

II.

State res-judicata analysis should be used

because the slander claims in the previous

lawsuit were considered by the Court

pursuant to 28 U.S.C. § 1367................25

Federal and State res-judicata is an

affirmative defense that should be

apparent on the face of the

complaint......................................26

Substantive Rights of the Plaintiff in

Removed cases should be considered... 28

If substantive, the res-judicata analysis

should be done using State res- judicata

laws to reconcile Erie, Byrd, and

Semtek. ......................................... 29

res

judicata

South

Carolina

rules.............................................30

The Case was transformed from a

motion to dismiss to a motion for

summary judgment..........................31

Did the Fourth circuit properly dismiss

the motion for recusal......................34

Index to Appendix .................................................35

V

CITATION TO AUTHORITIES

Supreme Court Cases

page(s)

Albright v. Oliver, 510 U.S. 266, 268 (1994)... 10

Americold Realty Trust v. ConAgra Foods, Inc., No.

14-1382, 2016 U.S. LEXIS 1652 (U.S. Mar. 7,

2016)....................................................8,9

Arba ugh v. YH Corp. d/b/a the Moonlight Café, 546

U.S. 500 (2006)....................................14

Arizonans for Official English v. Arizona, 520 U.S.

43, 73 (1997)...........................................1

Byrd v Blue Ridge Rural Electric Coop., Inc., 356

U.S. 525, 78 S.Ct. 893, 2 L. Ed 2d 953 (1958).. .30

Carden v. Arkoma Associates, 494 U.S. 185

(1990)...............................................9,10,11

Caterpillar Incorporated v. Lewis, 519 U.S. 61, 68

(1996).......................................................9

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107

S. Ct. 2425, 96 L.Ed.2d 318 (1987)..................14

Cannon Manufacturing Co. v. Cudahy Packing Co.,

267 U.S. 333 45 S. Ct. 250, 69 L. Ed 634 (1925).......5

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280, 293 (2005)........................................26

vi

Grace v. American Central Insurance Company, 109

U.S. 278, 109 U.S. 283....................................15

Grubbs v. General Elec. Credit Corp., 405 U.S. 699,

705(1972) ................................................ 14

Gully v. First Nat. Bank, 299 U.S. 109,112-13,57 S.

Ct. 96, 97-98, 81 Led. 70 (1936).....................

Hertz Corp. v. Friend, 130 S. Ct. 1181(2010)........12

Kellam v. Keith, 144 US. 568 (1892).................

Lawlorv. Nat'] Screen Serv. Corp., 349 U.S. 322, 328

(1955)..........................................................27

Lincoln Property Company v. Roche, 546 U.S. 81, 88

(2005)......................................................11

Mansfield, Coldwater & Lake Michigan Ry. Co. v.

Swan, 111 U.S. 379 (1884).........................

Semtek International Corporation v. Lockheed

Martin, 531 U.S. 437 (2001)................................27

Fourth Circuit Cases

Grausz v. Englander, 321 F.3d 467, 473-4 (4th Cir.

2003)...........................................................25

Hartley v. CSXTransp., Inc., 187 F.3d 422, 424 (4th

Cir. 1999)...................................................17

vii

Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th

Cir. 2015)....................................................17

Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir.

1997)...........................................................19

Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.

Ct. 3099, 87 L. Ed 2d 114 (1985)................29

Mayes v. Rapoport, 198 F. 3d 457, 460 (4th Cir.

1999).............................................................

Pinney v. Nokia, Inc., 402 F. 3d 430, 445-46 (4th

Cir.2005)........................................................25

Richmond, Fredericksburg & Potomac R.R. v. Forst,

4 F.3d 244, 250 (4th Cir. 1993).........................27

Other Circuit Cases

A.M. Tobacco Co., 168 F.3d. at 411(11th Cir.)

1999).........................................................25

Badon v. RJR Nabisco Inc., 236 F.3d 282, 286 (5th

Cir. 2001....................................................17

Brokerage Concepts, Inc. v. US. Healthcare, Inc.,

140 F. 3d 393, 530 (3d Cir. 1998);....................29

Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d

1082, 1085 (9th Cir. 2014).............................8

Connect Uv. Zuckerberg 482 F. Supp. 2d 3 (D. Mass

2007).............................................................12

viii

Great Plains Trust Co. v. Morgan Stanley Dean

Witter& Co., 313 F.3d 305, 312 (5th Cir. 2002)...15

Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th

Cir. 1999).......................................................17

Jernigan v. Ashland Oil Inc., 989 F.2d 812, 816 (5th

Cir. 1993........................................................17

Kanter v. Warner-Lambert Co., 265 F.3d 853, 857

(9th Cir. 2001).........................................8

Mas vPerry, 22 Iii. 489 F.2d 1396 (5th Cir. 1974)... 12

Rycoline Prod's. v. C& WUnlimited, 109 F.3d 883,

886 (3d Cir. 1997)...........................................26

South Carolina Cases

Chewning v. Ford Motor Co., 345 S.C. 28, 550 S.E.

2d 584 (Ct. App. 1991)...................................17

Hilton Head Ctz, Inc. v. Pub. Serv. Comm 'n, 294 S.C. 9,

11, 362 S.E.2d 176,177 (1987)...........................25

LaMotte v. Punch Line, 296 S.C. 66,70 370 S.E. 2d

711,713(1998).............................................19

Lee, 289 S.C. at 11, 344 S.E. 2d at 382..............19

McMillan V. OconeeMem?Hosp., Inc., 367 S.C. 559,

564, 626 S.E.2d 884, 886 (2006)....................18

ix

Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455, 460,

461 (Ct. App. 1997)........................................30

Sabb v. S.C. State Univ., 567 S.E. 2d 231, 234 (S.C.

2002.)......................................................14

Stiles v. Onorato, 318 S.C. 297, 300, 457 S. 2d 601,

602(1995) ................................................ 18

Toddy. SC. Farm BureauMut. Ins. Co., 276 S.C.

284, 292, 278 S.E.2d 607, 611 (1981)..............18

Vaught v. Waites, 300 S.C. 201, 208, 387 S.E.2d 91,

95 (Ct. App. 1989)........................................18

STATUTES

28 U.S.C. §1254 ............................................... 4

28 U.S.C. §1291...............................................4

28 U.S.C. §1332 (a)(1).......................................6

28 U.S.C. § 1367.............................................5,6

28U.S.C.1445(c) .......................................... 14

28 U.S.C. § 1446..............................................13

28 U.S.C. § 1447 (c)..........................................ii

28 U.S. C. § 1738 (2012)...................................27

OTHER SOURCES

accord Desser v. Woods, 296 A.2d 586, 591 (Md.

1972)...............................................................

RESTATEMENT (SECOND) OF TORTS § 876(b)

(1979) ............................................................

1

This Honorable Court recently settled the

dispute for determining the citizenship of entities

other than humans and corporations and determined

"While humans and corporations can assert their own

citizenship, other entities take the citizenship of their

members." Americold Realty Trust v. ConAgra Foods,

Inc., No. 14-1382, 2016 U.S. LEXIS 1652 (U.S. Mar.

7, 2016).

The citizenship of the circuit court fails unless

jurisdiction appears in the pleadings or elsewhere in

the record. Grace v. American Central Insurance

Company, 109 U.S. 278,109 U.S. 283 (1883).

In Garden, this Honorable Court interpreted

Congress' use of the word "corporation" in 28 U.S.

Code § 1332 (c)(1) as not applying to unincorporated

partnerships, such as, limited liability partnerships

(LLP's) for the purposes of determining the

citizenship, of the entity. For unincorporated

partnerships UP's), this Court determined the

citizenship of the partnership is the citizenship of

each of the partners. Garden vArkoma Assocs., 494

U.S. 185, 195-96 (1990).

QUESTIONS PRESENTED

Whether the Fourth Circuit properly retained

jurisdiction over a removed case when the

petitioner filed a motion to remand within

thirty days that alleged fatal defects in the

appellee's notice of removal pleadings pursuant

to 28 U.S.C. 1447(c).

To reconcile Erie, Byrd, and Semtek can a

plaintiff rely on state res-judicata laws when

the slander claim implicated in the res-judlicata

2

analysis was based on supplemental

jurisdiction pursuant to 28 U.S.C. §1367?

Did the Fourth Circuit err when it dismissed

the case pursuant to 12(b)(6).

Did the Fourth circuit properly deny the

motion for recusal?

Your petitioner prays this Honorable Supreme

Court will grant her petition for certiorari (1) to

review the Fourth circuit's departure from this

Court's rulings that require "non-corporate artificial

entities" to affirmatively plead the citizenship of its

members to prove federal diversity jurisdiction. (2) to

review the Fourth circuit's stamp of approval that

allowed a flawed notice of removal to retain

jurisdiction. (3) to reconcile Erie, Byrd, and Semtek

and determine whether a plaintiff can rely on state

res-judicata analyses when the sentinel case begins in

federal court and has both federal and state claims,

but the sentinel claim was based on supplemental

jurisdiction. (4) To resolve a circuit split on whether

res-judicata is substantive or procedural and

therefore should always use state res-judicata

analysis when the sentinel claim is a state law claim

regardless of whether the claim begins in federal or

state court. (4) Finally, to review whether the district

court judge should have recused herself when

metadata attached to substantive documents from

the United States Magistrate Judge indicated the

documents originated at the offices of the appellee-

defendants and Orders were entered prior to deadline

for response by the appellee defendants.

OPINIONS BELOW

The United States Court of Appeals for the Fourth Circuit

denied the petition for re-hearing and for rehearing en

bane on October 24, 2017. This petition is filed within

ninety days of the entry of the Order denying the petition

for re-hearing. On September 20, 2017, the United States

Court of Appeals for the Fourth Circuit affirmed the

District Court's Orders of Apr. 7, 2016; June 1, 2016;

July 27, 2016; Sept. 15, 2016 & Nov. 28, 2016 to the

respondents that accepted the recommendation of the

magistrate judge and denied the motion to remand,

denied the motion to recuse and for reconsideration,

accepted the recommendation of the magistrate judge

and granted Defendants' motion to dismiss, denied

her motion to alter or amend the judgment, and taxed

costs on all claims. The Order of the appellate opinion can

be found at Meisner v. Zymogenetics, Inc. et a4 2016 No.

2443 The Order of the district court Meisner v.

Zymogenetic.s, Inc., 2015 3:15 cv 03523-CMC-PJG.

JURISDICTION OF THIS COURT

The United States Court of Appeals for the Fourth Circuit

denied the petition for re-hearing and re-hearing en- banc

on October 24, 2017. This petition for a writ of certiorari

has been filed within 90 days of that Order. The

jurisdiction of the Supreme Court is invoked under 28

U.S.C. § 1254 (1).

JURISDICTION OF THE FOURTH CIRCUIT

The Fourth Circuit Court of Appeals had jurisdiction to

review the appeal from the South Carolina district court

pursuant to 28 U.S.C. § 1291. The petitioner denies both

4

the Fourth Circuit and the District Court had jurisdiction

pursuant to 28 U.S.C. 1332 Diversity of Citizenship.

REASONS FOR GRANTING THE PETITION FOR

CERTIORARI

The petitioner avers the removing defendants

have not met their burden of proving federal

jurisdiction in the removal notice or elsewhere in the

record. Not since Pierson v. Post has "capture" been a

more resounding theme in litigation. Removing

defendants, without intervention from this Court,

have effectively created a new Local South Carolina

Rule for determining jurisdiction.

This Court, in its supervisory role, should issue

a summary disposition and remand order to dissuade

further use of any such created state Local Rule. The

petitioner requests this Honorable United States

Supreme Court to grant certiorari and instill faith in

the court system, after all, there are significant

federalism issues that affect all plaintiffs

involuntarily removed to the federal forum, having

filed their complaint in state court. Summary

disposition will send a message to all removing

defendants "plead properly or proceed promptly back

to state court."

This Court, has determined "Whether, and

which, artificial entities other than corporations are

entitled to be considered "citizens" for diversity

purposes are complex questions best left to Congress

to decide." Cannon Manufacturing Co. V Cudahy

Packing Co., 267 U.S. 333, 45 S. Ct 250, 69 L. Ed.

634(1925). Pp 494 U.S. 196-197.

If this Honorable Court made the decision to

defer to Congress for the determination of the

citizenship of "non- corporate artificial entities"

5

certainly a common law Local Rule that conflicts with

this Court's holding should not stand.

The petitioner also request this Court answer

a novel question that may reconcile Erie, Byrd and

Semtek, for removed cases. The petitioner avers that

state res-juclicata laws should be used when the

sentinel case has both federal and state claims, but

the implicated claim is a state law claim considered

under 28 U.S.C. 1367, supplemental jurisdiction.

Because jurisdictional inquiries affect untold

numbers of state court plaintiffs across the country,

the petitioner humbly requests the court to issue a

writ of certiorari.

BACKGROUND

This is a South Carolina state court filed complaint

that alleges strictly state claims for breach of

contract, breach of contract accompanied by a

fraudulent act, civil conspiracy and negligent

retention, which was removed to federal court. The

civil conspiracy claim alleges that the appelleedefendant attorney, Stephanie Lewis participated, as

an officer of the court, in submitting known false and

misleading declarations to the federal district court,

in a previous case with some of the same parties. The

submitted documents caused special harm to the

petitioner as alleged in the complaint.

After the appellee-defendants were granted

summary judgment in the first case, in part due to the

submitted declarations, the petitioner found

metadata attached to substantive documents that

reflected both the Report and Recommendation by the

United States Magistrate Judge and the Denial of the

Motion to Amend the Complaint were authored to

some unknown degree by the appellee-defendants,

but definitely originated at the offices of the appelleedefendants, Stephanie Lewis, Jackson Lewis, LLP,

and Jackson Lewis, PC.'

Electronic data, if not removed, attaches to

every document filed and indicates the author and the

computer of origin. In effect, the metadata is a silent

witness as to who authors the document and how

often the document is edited. This evidence is

subsequently protected by the pacer system and

cannot be manipulated after submission.

The previous case had both federal claims and

state law claims considered under 28 U.S.C. § 1367,

supplemental jurisdiction. The breach of contract

claim, the breach of contract accompanied by a

fraudulent act, tortious interference with a business

contract and the negligent retention claim in the case

before the Court is based on and related to the second

slander by Appellee-defendant Tracey Caldarazzo,

which was not considered by the district court in the

first case. In the previous case, the appelleedefendant Tracey Caldarazzo was an individual

defendant in a different incidence of slander of the

petitioner.

The first slander claim by the individual

defendant Tracey Caldarazzo, in the initial case was

considered under supplemental jurisdiction because

it was a state law claim against a diverse citizen of

Maryland. Importantly, in the first case there were

both federal claims and diversity of citizenship

claims.

Summary judgment was granted to the

appellee-defendants on all causes of action in the first

cause of action by the district court. After the

1

3:12-cv-000684-CMC-pJG (ECF No.322-332)

conclusion of the first case and while still on appeal,

the petitioner noted metadata attached to documents

that indicated the Report and Recommendation and

the Denial of the Motion to Amend the Complaint

originated at the appellee-defendant's offices. This

case was subsequently filed, and the appelleedefendants removed the case back to federal court and

to the same team of judges.

The petitioner filed a motion to remand the

complaint back to state court within thirty days of the

removal and cited defects in the notice of removal,

incomplete diversity, and that the cause was not

removable. The Fourth Circuit affirmed the District

Court's dismissal and this petition for certiorari

follows.

ARGUMENT

The Appellees-Defendant's Notice of Removal is

Defective.

The petitioner timely filed a motion to remand

and noted some of the defects in the notice of removal.

The notice did not include the required state court

filings, alleged inaccurate service of process facts for

Zymogenetics, LLC, Zymogenetics, Inc. and Jackson

Lewis, LLP and did not evidence complete diversity.

The Notice of Removal does not make the requisite

citizenship allegations for diversity jurisdiction.

"It is well established that, for purposes of

federal jurisdiction diversity of citizenship, an LLC is

not a corporation, and thus is not considered a citizen

of its state of incorporation and principal place of

business, but instead shares the citizenship of its

members." Americold Realty Trust v. ConAgra Foods,

8

Inc., No. 14-1382, 2016 U.S. LEXIS 1652 (U.S. Mar.

7, 2016).

"Absent unusual circumstances, a party

seeking to invoke diversity jurisdiction should be able

to allege affirmatively the actual citizenship of the

relevant parties." Kanter v. Warner-Lambert Co., 265

F.3d 853, 857 (9th Cir. 2001).

The ninth circuit observed, an allegation as to

where an LLC resides, is licensed, or has a principal

place of business will not properly invoke the court's

jurisdiction. Carolina Gas. Ins. Co. v. Team Equip.,

Inc., 741 F.3d 1082, 1085 (9th Cir. 2014) (defendant

LLCs improperly stated for jurisdiction purposes, as

if they were corporations, where they had their

principal place of business and under whose laws they

were organized).

Here, the appellee-defendants combine

Zymogenetics, Inc. and Zymogentics, LLC into one

entity and use the citizenship allegations of the

"corporation" for the "non-corporate artificial entity".

The Magistrate Judge then adopted the same

pleading combination in her Report and

Recommendation that denied the motion to remand.2

This district court in its de-novo review declined to

correct the flawed jurisdictional allegations and the

Fourth Circuit affirmed. This Court has not

previously allowed this shared jurisdictional pleading

approach between separate legal entities that are

separately named in the complaint.

The allegations in the state filed complaint are

insufficient to establish diversity jurisdiction.

2 3:15-cv-03523-PJG-CMC (ECF No. 19

p. 2 n.2)

Neither the state court filed complaint,3 nor

the appellee's notice of removal, affirmatively alleged

the citizenship of Zymogenetics, LLC's members

prior to judgment and therefore violates this Court's

exception to the incomplete diversity at removal as

held in Caterpillar vLewis because the citizenship of

the members of Zymogenetics, LLC was never

alleged prior to judgment. Caterpillar Incorporated

v. Lewis, 519 U.S. 61, 68 (1996).

Instead of alleging the citizenship of the

members of Zymogenetics, LLC, appellees lumped

Zymogenetics, Inc. and Zymogenetics, LLC together

and adopted the citizenship allegations of its

"corporation" parents.

The petitioner avers the notice of removal is

defective because the notice of removal conflates the

citizenship allegations of the "corporation" with the

citizenship allegations of the "non-corporate artificial

entity" which this Court determined in Garden to be

improper. Garden v. Arkoma Associates, 494 U.S. 185

(1990). Americold Realty Trust v. ConAgra Foods,

Inc., No. 14-1382, 2016 U.S. LEXIS 1652 (U.S. Mar.

7, 2016).

The citizenship allegations in the state court

are found in paragraph four of the state filed

complaint.4 Paragraph four of the state filed

complaint reads in part

"Defendants Zymogenetics, LLC is a wholly

owned subsidiary of Zymogenetics, Inc., and both are

wholly owned subsidiaries of Bristol Myers Squibb

Company, Inc. and are Washington Corporations,

with its principal place of business in Seattle, WA...

3 3:15-cv -03523-PJG-CMC (ECF No. i- i).

4 3:15-cv-03523-PJG-CMC (ECFNo. 1 Notice of Removal, p.5 n.

4)

10

Defendants Zymogenetics, Inc. may be served with

process at CT Corporation 505 Union Ave SE suite

120 Olympia, WA 98501 and Zymogenetics, LLC may

be served with process at CT Corporation 2 Office

Park Court suite 103 Columbia, SC 29223. (emphasis

on the word corporation added by petitioner.)

The Fourth Circuit, in contravention of this

Court's determination in Carden, that the citizenship

allegations of "corporations" do not apply to "noncorporate artificial entities" allowed the removing

appellees to adopt and apply the citizenship

allegations of the "corporation" to the "non-corporate

artificial entity." (emphasis by petitioner)

The state court filed complaint does not allege

the citizenship of the members of Zymogenetics, LLC

and it is therefore, insufficient to establish federal

diversity jurisdiction. A court must consider all well

pleaded allegations in the complaint as. true. Albright

v. Oliver, 510 U.S. 266, 268 (1994). Because the

jurisdictional allegations do not plead the citizenship

of the members of Zymogenetics, LLC, the appellees

cannot rely on the jurisdictional allegations in the

state court filed complaint.

While removing defendants, like all other

federal litigants are not be required to search for

unnamed potential diversity destroying parties, they

are required to affirmatively allege the citizenship of

named defendants. Lincoln Property Company v.

Roche, 546 U.S. 81, 88(2005). (emphasis added by the

petitioner.)

Here, Zymogenetics, LLC is a separately

named and properly served defendant that requires a

"non-corporate artificial entity" jurisdictional

allegation, which according to this Court's precedent,

11

is the citizenship of all its members. The removing

appellee-defendants ignored this Court's binding

precedents and in the notice of removal pled,

"defendants Zymogenetics, LLC and Zymogenetics,

Inc. will be referred to collectively as "Zymogenetics"

unless it is necessary to distinguish between the two

entities

The petitioner argues the Fourth Circuit

should have required, in a removal action, for the

appellees-defendants to recite the members of

Zymgenetics, LLC and its members. The appelleesdefendant's negative assertion, at the appellate level,

that Zymogenetics, LLC is not a citizen of South

Carolina is not sufficient to invoke diversity

jurisdiction because diversity has not been proved

prior to judgment. Caterpillar Incorporated v. Lewis,

519 U.S. 61, 68 (1996), an affirmative pleading of the

entity's citizenship is required.

For example, based on the appellees negative

assertion that Zymogenetics, LLC is not a citizen of

South Carolina, the members of Zymogenetics, LLC

couldinclude a "Corporation" member, such as Bristol

Myers Squibb, Inc. or the Medicines Company which

acquired assets and employees of Zymogenetics, LLC

during two separate acquisitions.6 This Court has

held that a "corporation" member of a "non-corporate

artificial entity" would include all of the shareholders

of the corporation, which could include South

Carolina shareholders, potentially including the

petitioner herself, as a stockholder.

The appellees contention that "the members

are not citizens of the state of South Carolina" would

."5

5 3:15-cv-03523-PJG-CMC (ECF No. 1 Notice of Removal, p.1.n.

1.)

6 3:12-cv-000684-CMC-pJG (ECF 117 p. 6:6-12)

12

be partially accurate because a corporation is a citizen

of its state of incorporation and nerve center, both of

which could be outside South Carolina. So, as the

appellees claim, technically speaking the

"corporation" is a citizen of the state of incorporation

and its nerve center. Hertz Corp. v. Friend, 130 S. Ct.

1181(2010).

This determination is inconsistent with this

Court's rulings in Carden and Americold Logistics,

LLC and with Caterpillar Incorporated v. Lewis

because there is no evidence diversity existed at the

time the lawsuit was filed, removed or judgment was

entered.

The members could include a diverse United

States Citizen living abroad which would destroy

diversity because the citizen would be "stateless" due

to the fact he is not a domiciliary of any state. 28

U.S.C. §1332 (a)(1) (2-4); Mas vPerry, 22 Ill. 489 F.2d

1396 (5th Cir. 1974). If the limited liability company

has no members at all at least one court found the

LLC stateless and therefore it destroyed diversity.

Connect Uv. Zuckerberg 482 F. Supp. 2d 3 (D. Mass

2007)

Just like in Americold Realty Trust, there is no

evidence in the record of the citizenship of the

members of Zymogenetics, LLC. There is just an

assertion, at the appellate level that Zymogenetics,

LLC is "not a citizen of South Carolina". This Court

has never allowed negative statements to establish

jurisdiction for the reasons referenced above. A

federal court should confirm it has jurisdiction at each

phase of the litigation and to dismiss the claim if it

lacks jurisdiction. Arizonans for Official English v.

Arizona, 520 U.S. 43, 73 (1997).

13

The notice of removal made inaccurate statements

regarding service of process and failed to attach the

state court filed documents that included the

affidavits of service of process pursuant to 28 U.S.C.

§ 1446 (a).

The removal notice, which was signed

pursuant to Rule 11 contradicted the service of

process affidavit papers filed in the state court. The

removal notices alleged Zymogenetics, LLC,

Zymogenetics, Inc. and Jackson Lewis, LLP had not

yet been served with service of process and lumped

Zymogenetics, Inc. and Zymogenetics, LLC together.7

The affidavits for service of process were filed

in the state court and proved the defendants had been

served with the lawsuit prior to the submission of the

notice of removal, contrary to the representations of

the appellee-defendants in the removal notice.

The appellees, in their response to the motion to

remand, attached the state court filings and proved

that all defendants been served and therefore, proved

the notice of removal alleged inaccurate facts.8 It is

not only the fact the papers were not attached, more

importantly, it is the misrepresentations of service of

process facts and the inaccurate jurisdictional claims

in the notice of removal, that makes the notice fatally

flawed.

Instead, appellees asserted that Fourth Circuit

precedent allowed them to use the allegations in the

state court filed complaint to establish diversity.9

3:15-cv-03523-CMC-PJG (ECF 1p. 5 ¶ 5).

3:15-cv-03523-pJG-CMC (ECF No.13- 1)

9 3:15-ev-03523-CMC-pJG (ECF 14 n. 7)

7

8

14

D.

The circuit court determined the negligent

retention claim is governed by South Carolina

Workers Compensation laws.

The petitioner argues 28 U.S.C. § 1445 (c)

deprives the federal court of subject matter

jurisdiction over the remaining state claims when the

removal is based on diversity jurisdiction pursuant to

28 U.S.C. § 1332.

A defendant may remove a state court action to

federal court if the federal court has original

jurisdiction and Congress has not specifically

prohibited removal. 28 U.S.C. 1441 (a).

Pursuant to 28 U.S.C. 1445 (c) a civil action in any

state court arising under the workman's

compensation laws of that state may not be removed

to any district court of the United States.

28 U.S.C. § 1441(c) allows for severance and

partial remand for those cases that enter the federal

court under federal question jurisdiction and is only

for claims "arising under the Constitution, laws, or

treaties of the United States." 28 U.S.C. §

1441(c)(1)(A). There is no such "sever and remand"

available for cases removed pursuant to diversity

jurisdiction therefore, the petitioner avers the entire

case is not removable.

Whether a claim arises under a state's workers'

compensation law is a question of federal law. Grubbs

v. General Elec. Credit Corp., 405 U.S. 699, 705

(1972).

In the Order of Dismissal, the South Carolina

district court ruled, "Further it is well established

that the Act is the exclusive remedy for an employee

who brings a claim of negligence in hiring, retention,

or supervision of a co-employee."

15

Sabb v. S.C. State Univ., 567 S.E. 2d 231, 234 (S.C.

2002.)

Once the district court ruled the claim was

governed by South Carolina Worker's Compensation

Act and the Fourth Circuit affirmed this

determination, at a minimum the negligent retention

claim should have been remanded. Therefore, the

petitioner avers, at least this claim, and potentially

the entire case, was not available for removal

pursuant to this Court's ruling in Caterpillar v.

Williams or 28 U.S.C. 1445 (c). As this Court ruled:

"only state court actions that could have originally

been filed in federal court are available to be removed.

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107

S. Ct. 2425, 96 L.Ed.2d 318 (1987) (affirming remand

to state court).

South Carolina State Worker's Compensation

cases are not available to be filed in federal court and

therefore are not available for removal.

As this Court determined in Arba ugh, Federal

courts have an independent obligation to ensure they

do not exceed the scope of their jurisdiction. Arba ugh,

546 U.S. at 514. A party can object to subject matter

jurisdiction, at any time. Subject matter refers to the

particular type of case available to be heard by a

court.

Here, Congress specifically excepted removal

of cases that arise under the State Workmen's

Compensation laws in 28 U.S.C. §1445 W. As such, a

party may move to dismiss the case even after

judgment because the trial court lacked subject

matter jurisdiction. Arba ugh, at 508. Arba ugh v. YH

Corp. d/b/a the Moonlight Café, 546 U.S. 500 (2006).

Here, in a removal action, the Fourth Circuit

should have remanded this case back to the state

16

court from which it came or at a minimum remanded

the negligent retention claim when the district court

ruled the claim was governed by the South Carolina

State Workmen's Compensation Act.

There is no fraudulent joinder when the claim against

the non-diverse defendants is recognized by the state

and there is independent evidence of participation in

the tort and liability on the part of the appelleedefendant.

The test for fraudulent joinder, in a removal

action, is whether there is any possibility the South

Carolina appellee-defendants could be liable to the

petitioner-plaintiff for their part in the conspiracy

with their clients. First, and more common, the "no

possibility" standard is defined as whether the

plaintiff has "arguably a reasonable basis" on which

to recover against the non-diverse defendant under

state law. See Great Plains Trust Co. v. Morgan

Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th

Cir. 2002) ("If there is 'arguably a reasonable basis

for predicting that the state law might impose

liability on the facts involved,' then there is no

fraudulent joinder.") (quoting Radon v. RJR Nabisco

Inc., 236 F.3d 282, 286 (5th Cir. 2001) (quoting

Jernigan V. Ashland Oil Inc., 989 F.2d 812, 816 (5th

Cir. 1990). Otherwise, the "no possibility" standard

is defined as "absolutely no possibility" of recovery

against the non-diverse defendants. See Griggs v.

State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999)

(holding that, to establish fraudulent joinder, the

removing defendant must establish that "there is

absolutely no possibility that the plaintiff will be able

17

to establish a cause of action against the non-diverse

defendant in state court").

"The party alleging fraudulent joinder bears a

heavy burden—it must show that the plaintiff cannot

establish a claim even after resolving all issues of law

and fact in the plaintiff's favor." Johnson v. Am.

Towers, LLG, 781 F.3d 693, 704 (4th Cir. 2015)

(internal quotation marks omitted). "This standard is

even more favorable to the plaintiff than the standard

for ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6)." Hartley v. CSX Transp., Inc., 187 F. 3d 422,

424 (4th Cir. 1999).

The party seeking removal must determine

either (1) there is no possibility that the plaintiff can

establish a cause of action against the defendant or

(2) outright fraud in the pleading of the jurisdictional

facts. Mayes v. Rapoport, 198 F. 3d 457, 460 (4th Cir.

1999).

South Carolina law specifically provides that

an attorney is part of their client's civil conspiracy,

when the attorney's actions are an independent and

vital link in the conspiracy chain and where the

attorney breaches an independent duty to a third

party or commits a fraud on the Court. Chewning v.

Ford Motor Co., 345 S.C. 28, 550 S.E. 2d 584 (Ct. App.

1991); Stiles v. Onorato, 318 S.C. 297, 300, 457 S. 2d

601, 602 (1995)(emphasis by appellant).

First, South Carolina law provides that an

attorney can be part of their client's civil conspiracy if

the attorney acts on his own accord or acts outside of

the scope of representation. (emphasis added by

petitioner).

However, the South Carolina Supreme Court

has also ruled that "an attorney maybe held liable for

conspiracy where, in addition to representing his

18

client, he breaches some independent duty to a third

person or acts in his own personal interest, outside the

scope of his representation of the client," Stiles v.

Onorato, 318 S.C. 297, 300, 457 S. 2d 601, 602

(19 9 5) (emphasis by appellant).

"A civil conspiracy is a combination of two or

more persons joining for the purpose of injuring and

causing special damage to the plaintiff." McMillan v.

Oconee Mem'l Hosp., Inc., 367 S.C. 559, 564, 626

S.E.2d 884, 886 (2006); see also Todd v. S.C. Farm

Bureau Mut. Ins. Co., 276 S.C. 284, 292, 278 S.E.2d

607, 611 (1981) ("Conspiracy is the conspiring or

combining together to do an unlawful act to the

detriment of another or the doing of a lawful act in an

unlawful way to the detriment of another."); Vaught

v. Waites, 300 S.C. 201, 208, 387 S.E.2d 91, 95 (Ct.

App. 1989) ("Civil conspiracy consists of three

elements: (1) a combination of two or more persons,

(2) for the purpose of injuring the plaintiff, (3) which

causes him special damage."). The crux of the tort of

civil conspiracy is the damage resulting to the

plaintiff from an overt act done pursuant to a common

plan. Vaught, 300 S.C. at 208, 387 S.E. 2d at 95.

An action for civil conspiracy is viable under

South Carolina law even though no unlawful means

were used. LaMotte v. Punch Line, 296 S.C. 66,70 370

S.E. 2d 711, 713 (1998); Lee, 289 S.C. at 11, 344 S.E.

2d at 382.

The appellee defendants did not allege outright fraud

in the pleadings.

The appellees did not allege fraud in naming .

them as a defendant; therefore, to establish

fraudulent joinder the appellees must prove that

19

there is no possibility of recovery against the

defendants.

Application of an affirmative defense should not be

considered in a fraudulent joinder analysis when the

state recognizes the cause of action against the nondiverse defendant.

Here, the district court ruled:

"Plaintiff's civil conspiracy claim cannot survive

against attorney Lewis and her firm, as attorneys are

immune from liability if they are acting within the

scope of representation of a client.., actions here of

interviewing a witness and obtaining his statement in

support of motions made on behalf of her client were

undoubtedly within her scope of representation". 10

The petitioner counters, it is the "if' that

transforms the district court's ruling from a

jurisdictional inquiry to a decision on the merits.

The contract of engagement between appelleedefendant Lewis and Bristol Myers Squibb, Inc. is not

in the record.

The contract between appellee-defendant

Lewis and Zymogenetics, Inc., Zymogenetics, LLC

and Bristol Myers Squibb, Inc. is not in the record

therefore, there can be no determination that

appellee-defendant Lewis was working within her

scope of employment.

The determination that appellee-defendant

Lewis was working within the scope of her

employment is a determination on the merits of the

case. Pursuant to the second restatement of torts, for

10

3:15-cv-03523-CMC-PJG (ECF No. 22 p.5.)

20

an attorney to avoid liability for "working within the

scope of engagement" the attorney, cannot participate

in the tort. RESTATEMENT (SECOND) OF TORTS

§ 876(b) (1979).

The South Carolina Supreme Court concluded

attorneys could be liable for civil conspiracy with their

clients in certain circumstances. Stiles v. Onorato, 318

S.C. 297, 300, 457 S. 2d 601, 602 (1995)

Lewis

Appellee-defendant

Stephanie

represented to the Court in April of 2013 that she had

asked whether Tracey Caldarazzo or Jeff Fortino

spoke with anyone other than attorneys about the

previous case and she stated they did not.

However, in the videotaped testimony of Amy

Maxwell on July 25, 2013, Ms. Maxwell testified not

only did Ms. Maxwell speak with Mr. Fortino about

giving a deposition in the case in February, she also

spoke with appellee -defendant Stephanie Lewis. This

goes far beyond a discovery violation and into the

realm of material misrepresentation to the Court,

particularly when appellee-defendant Jackson Lewis,

PC then updated the interrogatories to admit that Mr.

Fortino spoke with Ms. Amy Maxwell. This correction

occurred only after the information was disclosed

during the videotaped deposition.

One of several misrepresentations in open

court by appellee-defendant Stephanie Lewis to the

Court is recounted below during the April 11, 2013

hearing before the Honorable Paige Gossett.

Ms. Lewis: So, I have spoken to Tracey and Jeff, and

I'm not aware of any conversation that they had about

the case, other than with attorneys.

Court:A1l right. So, I think I hear you saying that the

answer is there aren't any.

21

Ms. Lewis: Other than-than

or-Court: Other

what's

privileged

Ms. Lewis: That's my understanding

Court:Okay. Well, Mr. Bowens, I can't make them

produce something that they don't have.

Mr. Bowens: I understand that, Your Honor, that

explanation was not what I got from their response.

Court: Okay.

Mr. Bowens: If their position is there are no other

conversations that people had, then that's their

answer, we'll have to go with that.

Court: All right. Well, she stood here in open court

and told the court that that's

the answer on behalf of Zymogenetics, so I think we

can move on. And that one, I guess, is moot. (ECF No.

50 p.10-12) emphasis added by Plaintiff.

Here, appellee-defendant Stephanie Lewis

represented to the Court that she specifically asked

Mr. Fortino if he had spoken with anyone about the

case and he said no. Ms. Amy Maxwell, a hostile

witness, testified she spoke not only to Mr. Fortino,

but also specifically to appellee-defendant Attorney

Stephanie Lewis about giving a deposition in the case

which was almost two months before the

representations to the contrary in open court.

Appellee- defendant Stephanie Lewis told the

Court that she was not representing Jeff Fortino;

therefore, there was no attorney client relationship

with Mr. Fortino at the time of she drafted, sent to

Mr. Fortino for execution and then subsequently filed

with the district court her misrepresentations to the

Court. Appellee-defendant Stephanie Lewis also

argued to the Court (and Amy Maxwell confirmed in

her testimony) that Jeff Fortino did not work for

22

Bristol Myers Squibb, Inc, but instead worked for the

Medicines Company in Feb or March of 2013." Mr.

Fortino, was therefore, a third party to Bristol Myers

Squibb, Inc. and both Zymogenetics defendants and

capable of participating in a conspiracy.

Additionally, after the close of the first case,

metadata attached to substantive recommendation

documents by the United States Magistrate Judge

indicated the documents originated at appellee

defendant Stephanie Lewis' computers. Importantly,

there has never been any discovery related to the civil

conspiracy claim, but evidence of the conspiracy to

submit false declarations, documents drafted by the

appellee-defendants, and make false representations

of facts in open court exists nevertheless.

The Court, in this case, went beyond the

limited jurisdictional inquiry and adopted the

appellee-defendant's position that they could not be

held liable for their actions as an attorney in the

course of the representation of their clients. While

this is certainly an affirmative defense, a decision

that the appellees acted within the scope of

representation when the contract of engagement is

not in evidence and there has been no discovery in the

case indicates the Court exceeded its jurisdictional

inquiry and decided on the merits of the case.

Second, the previous ruling by the District

Court that Jeff Fortino did not commit perjury and

that therefore, attorney Lewis did not suborn perjury

is not dispositive of the civil conspiracy claims against

them. Both the Magistrate Judge, the District Judge,

and anyone else that reviewed the evidence, noted the

11

3:12-cv-000684-CMC (ECF No. 50 p 10:23-25;11-12).

23

inconsistency and falsity of the representations to the

Court.12

Even if her clients instructed appelleedefendant Stephanie Lewis to orchestrate and submit

known false declarations into evidence, as an officer

of the Court, she knew or should have known this was

improper and should have declined their invitation or

instruction. Instead, she made the volitional decision

to participate in the drafting and submission of the

declarations.

The complaint adequately alleges appelleedefendant Stephanie Lewis breached her duty as an

officer of the Court which is an independent duty of

her duties in the representation of her client and as

such, she is independently liable for her critical role

in the conspiracy to submit inaccurate and false

declarations to the Court and make false

representation, to injure the petitioner.

The appellant avers South Carolina law

specifically provides that an attorney is part of their

client's civil conspiracy, such as in this case, when the

attorney's actions are an independent and vital link

in the conspiracy chain and where the attorney

breaches an independent duty to a third party or

commits a fraud on the Court. Chewning v. Ford

Motor Co., 345 S.C. 28, 550 S.E. 2d 584 (Ct. App.

1991); Stiles v. Onorato, 318 S.C. 297, 300, 457 S. 2d

601, 602 (1995) (emphasis by petitioner).

Whether appellee-defendant attorney Lewis'

actions were outside the scope of her representation,

is a question of law and fact that should not be

reviewed as part of the federal Court's diversity

analysis. Importantly, the civil conspiracy claim did

not accrue until there was actual damage as a result

12

3:12-cv-000684-CMC-PJG (ECF No. 11 pp. 9-11).

24

of the conspiracy which was after the case. This is also

the same time the petitioner found metadata on

substantive court documents that originated at the

offices of the appellee-defendants.

[El xtrinsic fraud' refers to frauds collateral or

external to the matter tried such as.. misleading acts

which prevent the movant from presenting all of his case

or deprives one of the opportunity to be heard." Li-htsey

& Flanagan, supra, at 486; see also Hilton Head Ctr., Inc.

v. Pub. Serv. Commi, 294 S.C. 9, 11,362 S.E.2d 176,177

(1987) ('Extrinsic fraud is fraud that induces a person not

to present a case or deprives a person of the opportunity

to be heard.')." Chewning, supra.

.

Complaint Alone rule for federal question cases should be

used in a fraudulent joinder analysis.

This Court has long held for federal question

cases, the complaint alone should be reviewed to

determine, whether the plaintiff has alleged a federal

question in the controversy. "[Tihe controversy must

be disclosed upon the face of the complaint, unaided

by the answer, or by the petition for removal." Gully

V. First Nat. Bank, 299 U.S. 109,112-13,57 S. Ct. 96,

97-98, 81 Led. 70 (1936). Pinney v. Nokia, Inc., 402 F.

3d 430, 445-46 (4th Cir.2005)(Remanding case to

state court since "[t]he district court went beyond this

restricted inquiry and in effect anticipated (1) that

[defendant] would raise the affirmative defense that

the state law claims are preempted.. .and (2) that the

..plaintiffs would be called upon to rebut that

defense the cases could be decided, the court

concluded, only by resolving whether the claims are

preempted by [federal law or standards]

The petitioner avers "the complaint alone" rule that

this Court defined for federal question jurisdiction,

."

25

should be used to determine fraudulent joinder in

diversity jurisdiction cases.

Here, once the district court ruled,

"Although the case law is clear that an attorney may

be held liable for civil conspiracy in some

circumstances, there is simply no such evidence in

this case." This is a determination on the merits of the

case. Case law encourages federal judges to remand

cases with questionable jurisdiction that require

rulings on the merits. A.M. Tobacco Co., 168 F.3d.

at 411(11th Cir. 1999).

II. State res-judicata analysis should be used because

the slander claims in the previous lawsuit were

considered by the Court pursuant to 28 U.S.C. § 1367.

A. Federal and State res-judicata is an

affirmative defense that should be apparent on

the face of the complaint.

Federal res-judicata is an affirmative defense that

must be apparent on the face of the complaint and

the circuits are split on whether res judicata is

substantive or procedural.13

13

Compare Gasbarra v. Park-Ohio Indus., 665 F. 2d 119 (7th

Cir. 1981); Gatzemeyer v. Vogel, 589 F. 2d 360 (8th dr. 1978);

Hartmann v. Time, Inc. 166 F.2d 127 (3d Cir. 1948) (all holding

Lobby, Inc., 707 F.2d

the state law controls). In Hunt vLiberty,

1493 (D.C. Cir. 1983); Aerojet-General Corp. v. Askew, 511 F.2d

710 (5th Cir. 1975) (dictum); Kern v. Hettinger, 303 F.2d 333

(2d Cir. 1962) (all holding federal law controls). See also

Degnan, Federalized Res Juc/icata, 85 Yale L.J. 741, 769 (1976)

(supporting the view that federal law should control); 1A J.

Moore & B. Ward, Moore's Federal Practice \ 0.311 [21, at 3182

(2d ed. 1983) (stating that state rules of claim preclusion and

federal rules of issue preclusion should control); analysis by 45

U. Chi. L. Rev. 323 1977-1978, David Currie, author.

26

The first issue the defendants raise in their

motion to dismiss is that res judicata should apply to

this case.

Res judicata is an affirmative defense

that must be evident on the face of the complaint.

Rycoline Prod's. v. C & W Unlimited, 109 F.3d 883,

886 (3d Cir. 1997)). There are rare circumstances

where the facts are sufficient to rule on an affirmative

defense are alleged in the complaint and therefore can

be decided in a motion to dismiss filed under Fed. R.

Civ. P. Rule 12 (b) (6). This only occurs when all of the

facts "clearly appear [] on the face of the complaint".

Richmond, Fredericksburg &PotomacR.R. v. Forst, 4

F.3d 244, 250 (4th Cir. 1993) (emphasis added);

accord Desser v. Woods, 296 A.2d 586, 591 (Md. 1972).

Here, not only did the defendants dispute

which slander case was the sentinel claim for the resjudicata defense, the second slander claim was not

considered by the district court.

If the case referenced for res judicata begins

in federal court, federal res judicata rules apply. If the

case begins in the state court, Federal Courts must

use 28 U.S. C. § 1738 (2012) and apply the law of the

state in which the judgment was rendered to

determine, if the state court claim is precluded Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

293 (2005). This Court modified this rule in Semtek

and decided that if the case began in federal court, but

was based on diversity of citizenship, the state's laws

for res-judicata would be used. Scm tek International

Corporation v. Lockheed Martin, 531 U.S. 437 (2001).

This Court held in Scm tek:

Since in diversity cases state, rather

than federal, substantive law is at issue,

there is no need for a uniform federal

27

rule; and nationwide uniformity is better

served by having the same claimpreclusive rule (the state rule) apply

whether the dismissal has been ordered

by a state or a federal court. Any other

rule would produce the sort of forum

and

inequitable

shopping

administration of the laws that Erie

seeks to avoid. While the federal

reference to state law will not obtain in

situations in which the state law is

incompatible with federal interests, no

such conflict exists here. Pp. 9-12.

Semtek International Corporation v. Lockheed

Martin, 531 U.S. 437 (2001).

Usually, new facts give rise to a new cause of

action. Lawlor v. Nat'] Screen Serv. Corp., 349 U.S.

322, 328 (1955). This is the case here. As the

Honorable Cameron Currie noted in her Order of

September 22, 2014, the ability to amend the

complaint was not extended past July 7, 2012,

according to the scheduling orders.14 As the

defendants note, a Court can review its own record for

the purposes of res judicata. The deposition of Dr.

Claus Brandigi occurred in fall of 2013. The

deposition of the corporate 30 (b)(6) deponent, Sandy

Jones, occurred in Seattle, Washington in October of

2013, a few days before discovery ended on October

30, 2013. The claims or issues were therefore, not

before the Court, or considered in the adjudication of

the other claims because an amendment to add the

second slander was not made.

"To establish a res judicata defense, a party must

establish: (1) a final judgment on the merits in a prior

14

3:12-cv-00684-CMC-PJG (ECF No. 288 p. 6)

28

suit, (2) an identity of the cause of action in both the

earlier and the later suit, and (3) an identity of parties

or their privies in the two suits." Jones v. SEC, 115

F.3d 1173, 1178 (4th Cir. 1997) (internal quotation

marks omitted), cert. denied, 118 S. Ct. 1512 (1998).

In addition to the formal rules two other

considerations have been considered by the Fourth

Circuit. Whether the party knew or should have

known of its claim at the time of the first action and

whether the court that ruled in the first action was an

effective forum to litigate the relevant claims.

Grausz v. Englander, 321 F.3d 467, 473-4 (4th Cir.

2003).

All of the claims in this lawsuit were not part

of the previous action and indeed were discovered

shortly before the end of discovery (3 days). The civil

conspiracy had not yet accrued.

Third party interference with an employment

contractis actionable, when discovered, separate and

apart from other claims and is a different cause of

action and claim. Brokerage Concepts, Inc. v. US.

Healthcare, Inc., 140 F. 3d 393, 530 (3d Cir. 1998);

Michalson v. Exxon Research and Eng'g Co., 808 F. 2d

1004 (3d Cir. 1987).

Also, the parties are not identical in the first

case. While some of the parties are the same, this case

includes as defendants Jeff Fortino, a declarant in the

first case and Tracey Caldarazzo15 as not only

individual defendants, but as agents of Zymogenetics.

Ms. Caldarazzo was a named defendant for the first

incidence of slander which occurred after the plaintiff left the

employment of Zymogenetics, LLC and Zymogenetics, Inc.

When the case was filed the plaintiff had no way of knowing of

Ms. Caldarazzo's interference with her contract until the

deposition of Dr. Claus Brandigi and the October of 2013

deposition of the corporate 30(b)(6) deponent, Ms. Sandy Gray.

15

29

The privity between the company, the individual and

the contract of employment with the plaintiff, must be

analyzed for claim preclusion purpose as each of the

defendants has independent interests that divide

their privity. Neither Tracey Caldarazzo nor Jeff

Fortino was named as individual defendants in the

previous suit for interference with the plaintiffs

contract.

The individuals, and the individuals as agents

for the company have different claims and defenses

some of which might be adverse to each other and

adverse to the company, therefore, the privity of

parties and claims must be resolved as part of the res

judicata analysis. Kentucky v. Graham, 473 U.S. 159,

165-67, 105 S. Ct. 3099, 87 L. Ed 2d 114 (1985)

(internal quotation marks omitted). Therefore, under

the standards for federal res judicata, the claims are

not barred.

Substantive Rights of the Plaintiff in Removed

cases should be considered.

When a case is removed from state court, an

analysis should be done to ensure that substantive

rights of the plaintiff are not violated when the state's

res judicata analysis varies and may have a different

outcome, from the federal courts analysis. This

creates an unequal protection of the plaintiffs rights

under the law.

The circuits are split on whether res judicata

is substantive or procedural.16 The defendants argue

Compare Gasbarra v. Park-Ohio Indus., 665 F. 2d 119 (71h

Cir. 1981); Gatzemeyer v. Vogel, 589 F. 2d 360 (8th Cir. 1978);

Hartmann v. Time, Inc. 166 F.2d 127 (3d Cir. 1948) (all holding

Lobby, Inc., 707 F.2d

the state law controls). In Hunt vLiberty,

1493 (D.C. Cir. 1983); Aerojet-General Corp. v. Askew, 511 F.2d

710 (5th Cir. 1975) (dictum); Kern v. Hettinger, 303 F.2d 333

(2d Cir. 1962) (all holding federal law controls). See also

16

30

the federal standards for res judicata should apply

based on Fourth Circuit precedent and because the

referenced previous lawsuit was filed in federal

court.17 The plaintiff argues South Carolina rules for

res judicata apply because the application may

involve substantive rights which changes the analysis

from procedural to substantive and the state has a

substantial interest in allowing its citizen recovery

from the bad acts of others, particularly when a

fraudulent act is involved. Byrd v Blue Ridge Rural

Electric Coop., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.

Ed 2d 953 (1958).

When Federal and State Claims exist in the

sentinel res-judicata case regardless of whether the

sentinel case began in federal or state court, as this

Court held in Semtek, if substantive, the res-judicata

analysis should be done using State res- judicata laws

to reconcile Erie, Byrd, and Semtek.

The circuits are split on whether res judicata is

substantive or procedural.18 The defendants argue

Degnan, Federalized Res Judicata, 85 Yale L.J. 741, 769 (1976)

(supporting the view that federal law should control); 1A J.

Moore & B. Ward, Moores Federal Practice \ 0.311 [21, at 3182

(2d ed. 1983) (stating that state rules of claim preclusion and

federal rules of issue preclusion should control); analysis by 45

U. Chi. L. Rev. 323 19771978, David Currie, author.

17 ECF No. 8-1 pp. 12-13.

18 Compare Gasbarra v. Park-Ohio Indus., 665 F. 2d 119 (71h

Cir. 1981); Gatzemeyer v. Vogel, 589 F. 2d 360 (8th Cir. 1978);

Hartmann v. Time, Inc. 166 F.2d 127 (3d Cir. 1948) (all holding

the state law controls). In Hunt vLiberty Lobby, Inc., 707 F.2d

1493 (D.C. Cir. 1983); Aerojet-General Corp. v. Askew, 511 F.2d

710 (5th Cir. 1975) (dictum); Kern v. Hettinger, 303 F.2d 333

(2d Cir. 1962) (all holding federal law controls). See also

Degnan, Federalized Res Judicata, 85 Yale L.J. 741, 769 (1976)

(supporting the view that federal law should control); 1A J.

Moore & B. Ward, Moore's Federal Practice \ 0.311 [21, at 3182

(2d ed. 1983) (stating that state rules of claim preclusion and

31

the federal standards for res judicata should apply

based on Fourth Circuit precedent and because the

referenced previous lawsuit was filed in federal

court.19

South Carolina Standards for Res Judicata

Because South Carolina, in Pye, adopted the second

restatement of judgments section 28, and in Beau

adopted section 29 and both contain several

exceptions to the application of res judicata the res

judicata analysis is substantive and therefore should

use state res-judicata analysis.

Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455, 460, 461

(Ct. App. 1997); Beall v. Doe, 281 S.C. at 371, 315

S.E.2d at 190-91 The circumstances to which

considerations should be given include those

enumerated in § 28.

An analysis, by the Court, should be made as

to whether applying federal res judicata law invades

the substantive rights of the plaintiff because South

Carolina law interpreting res judicata is substantially

different than federal law. The standard for a motion

to dismiss based on res judicata and offensive

collateral estoppel, under Federal law and under

South Carolina law, should be evaluated.20 Byrd v.

Blue Ridge Rural Electric Coop., Inc., 356 U.S. 525,

78 S. Ct.893, 2 L. Ed 2d 953 (1958).

The Motion to Dismiss was converted into a

motion for summary judgment without the benefit of

discovery.

federal rules of issue preclusion should control); analysis by 45

U. Chi. L. Rev. 323 1977-1978, David Currie, author.

19 ECF No. 8-1 pp.12.13.

20 ECF No. 8-1

p. 9; but see: Spence vSpence, 368 S.C. 106, 116

628 S.E. 2d 869 874 (2006).

32

Appellee- defendants attached 78 pages of

deposition testimony, some of which was not

considered in the first case, to the filed motion to

dismiss, for the Court's consideration, effectively

changing the motion to dismiss to a motion for

summary judgment.

Under South Carolina law Rule 12 (b)(6); A

defendant may move to dismiss a complaint based on

a plaintiff's failure to plead. Spence vSpence, 368 S.C.

106, 116 628 S.E. 2d 869 874 (2006). The grant of a

12(b)(6) motion, in South Carolina, must be based

entirely on the allegations in the complaint. Id.

However, federal law allows review of documents

without the conversion of a Rule 12 (b)(6) motion into

a motion for summary judgment. See Sec)' of State

for Defence v. Trimble Navigation Ltd., 484 F.3d 700,

705 (4th Cir. 2007)

In South Carolina, if any material outside the

pleading is considered by the court, the motion to

dismiss is converted into a motion for summary

judgment. McDonnell v. The Consolidated School

Dist. OfAiken, 315 S.C. 487, 489, 445 S. E. 2d 639,639

n. 2 (1994). The defendants have suggested the Court

evaluate and indeed use material outside of the

pleadings or the first case filings to determine the

sufficiency of the claims. Because state law converts

a motion to dismiss to a motion for summary

judgment and federal law does not, a federal court, in

a removal action sitting in diversity should use South

Carolina law as both a motion to dismiss and a motion

for summary judgment involve substantive rights.

Additionally, a motion for summary judgment cannot

be granted under South Carolina law, prior to

discovery. The Supreme Court of South Carolina has

explained that the proof needed to defeat the

summary judgment motion is a "mere scintilla" of

33

evidence as explained in Hancock: only a scintilla of

evidence is required to defeat summary judgment

where the pre-ponderance of evidence standard is

used. Hancock v. Mid-South Management Co., Inc.,

370 S.C. 131, 634 S.E.2d 12 (Ct. App. 2006).

Whether there are triable issues of fact, the

evidence must be viewed in the light most favorable

to the non-moving party. Koester v Carolina Rental

Ctr, 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994).

"[slummary judgment should not be granted, even

when there is no dispute as to evidentiary facts, if

there is dispute as to the conclusion to be drawn from

those facts." Gignilliat v. Gignilliat, Savitz & Bettis,

L.L.P., 385 S.C. 452, 456, 684 S.E.2d 756, 758 (2009)

(quoting Brockbank, 341 S.C. at 378, 534 S.E.2d at

692).

This means that summary judgment must not

be granted until the opposing party has had a full and

fair opportunity to complete discovery. Id. Doe Ex

Rel. Doe v. Batson, 548 S.E. 2d 854 (S.C. 2001). Here,

just as in Doe, there has been no discovery based on

the defendant's motion for summary judgment,

couched as a motion to dismiss.

The Fourth Circuit should have found the district

court should have recused herself and the Magistrate

Judge when metadata was found attached to

substantive documents and the district court entered

judgment prior to the time the appellee-defendants

had to respond to filings.21

The petitioner is out of words (word count) but not out

of hope that this Honorable Court will enforce the

21 3:12-cv-000684-CMC-pJG (ECF No. 22-32)

34

Supreme law of the land and remand this case back

to state court with costs and attorneys fees taxed to

the defendants.

Respectfully Submitted,

s/Rhonda Meisner

Rhonda Meisner

P0 Box 689

Blythewood, SC 29016

Pegasus333@icloud.com

(803)206-3402

January 17, 2017

INDEX TO THE APPENDIX

Order from Fourth Circuit Denying Petition for Rehearing and Re-hearing en bane.................. App.1

Order of Fourth Circuit affirming District

Court........................................................App.2

Order of District Court Denying Motion to

Reconsider.................................................App.4

Order of District Court on Defendants Motion to

Dismiss and motion to Amend .....................App.7

Footnotes at...................................App. 20

Report and Recommendation on Motion to

Dismiss..................................................App. 28

Opinion Order on Motion to Remand.........App. 21

Report and Recommendation on Motion to

Remand................................................App. 3

Footnotes associated with Report and

recommendation .................................... App. 46

28 U.S.C. §1441 (a) ................................. App. 35

1445 (c) Non-Removable

28 U.S.0

§

Actions.................................................App. 36

28 U.S.C. § 1446 (a)................................App. 36

South Carolina exceptions to Res-judicata App. 37