United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge.
Chang Lim, proceeding pro se, brought this action
against a group of persons and entities related to Lim's
former employer (collectively defendants), alleging
retaliation under Title VII of the Civil Rights Act of 1964
(Title VII) and various state law claims. Those claims are
based on defendants' collection on a foreign judgment
against Lim in Virginia and statements that defendants made
in unemployment proceedings in Virginia and Wisconsin.
(See generally Am. Compl. (Compl.), Dkt. No. 24.)
Before the court are defendants' motions to dismiss for
lack of jurisdiction and failure to state a claim (Dkt. No.
25), their motion to dismiss for lack of prosecution (Dkt.
No. 32), and their motion for sanctions pursuant to
Fed.R.Civ.P. 11 (Dkt. No. 3). Lim has also filed a motion for
the court to reconsider its dismissal of certain defendants
and a motion for a default judgment against those defendants.
(Dkt. Nos. 40, 41.) For the reasons stated herein, the court
will grant defendants' motion to dismiss for failure to
state a claim, deny their remaining motions, and deny
facts recited here come from two sources: the allegations of
Lim's complaint and the public records of Lim's
previous litigation, made part of the record as exhibits to
defendants' motion for sanctions. The court takes
judicial notice of those public records and will construe
those documents and Lim's allegations in the light most
favorable to him. Zak v. Chelsea Therapeutics Int'l,
Ltd., 780 F.3d 597, 607 (4th Cir. 2015); Coleman v.
Md. Court of Appeals, 626 F.3d 187, 189 (4th Cir. 2010).
The Michigan Litigation
dispute in this case began with a lawsuit that Lim filed
against his former employer, Terumo Heart, Inc. (THI), and
related parties in the United States District Court for the
Eastern District of Michigan in 2011. THI, a manufacturer of
medical devices that was in the process of securing FDA
approval on a device, hired Lim as a regulatory affairs
manager in March 2010. (Compl. ¶¶ (9)-(10),
3-5.) While employed at THI, Lim complained
about the company's regulatory compliance and expressed
concerns that some of THI's medical devices endangered
patients. (Id. ¶¶ 8-10.) Gael Tisack,
THI's compliance officer, told Lim that his concerns were
“false, ” and Lim was subsequently terminated on
October 1, 2010. (Id. ¶¶ 10-11.)
his termination Lim sued a variety of persons and entities
related to THI (id. ¶ 15), claiming that THI
had discriminated and retaliated against him based on his
race, color, national origin,  and opposition to THI's
regulatory non-compliance. His suit alleged Title VII
discrimination and retaliation, violation of the Michigan
Whistleblowers' Protection Act, and various state law
claims. (Id. ¶ 15; Lim v. Terumo
Corp., Nos. 14-1513/1573, at 1, 5-9 (6th Cir. Apr. 2,
2015) (reproduced at Dkt. No. 3-1, at 43).) THI
counterclaimed, asserting a claim of unjust enrichment based
on allegations that Lim had misrepresented his qualifications
and work history. (Compl. ¶ 16; Lim, Nos.
14-1513/1573, at 2.)
discovery, the court granted summary judgment in favor of THI
and ordered Lim to pay certain fees, costs, and sanctions
(the Michigan judgment). (See Lim v. Terumo Corp.,
No. 11-cv-12983, at 18-20 (E.D. Mich. Apr. 9, 2014)
(reproduced at Dkt. No. 3-1, at 16).) Specifically, the court
ordered Lim to pay $3, 531.90: $1, 750 as a sanction for
failing to attend a court-ordered psychological exam and $1,
781.90 for contempt based on Lim's failure to pay a
previous award of attorney's fees and costs. Id.
On appeal, the Sixth Circuit affirmed the court's grant
of summary judgment and award of sanctions, although Judge
McKeague, concurring in part and dissenting in part, argued
that the district court's award should have included
additional costs and fees. (See generally Lim, Nos.
14-1513/1573, supra.) The Sixth Circuit declined to
award THI costs associated with the appeal, though the court
admitted it was “tempted.” (Lim, Nos.
14-1513/1573 (order denying costs) (reproduced at Dkt. No.
3-1, at 56).)
Lim's Employment Proceedings
point after his termination and during the course of the
Michigan litigation, Lim moved to Floyd County, Virginia, and
filed for unemployment. (Compl. ¶¶ 11, 17.) Lim
asserts that Tisack made false statements to the Virginia
Employment Commission (VEC) to the effect that Lim had been
terminated because he was insubordinate and unfit for his
position. (Id. ¶¶ 17, 127-28.) The VEC
found that Lim had been terminated for misconduct, but the
decision was reversed on Lim's Petition for Judicial
Review to the Circuit Court for Montgomery County. (See
Chang-Su Lim v. Va. Emp't Comm'n, No.
CL11009120-00 (Va. Cir. Ct. June 10, 2013) (reproduced at
Dkt. No. 15-5); Compl. ¶ 17.)
point, THI and Tisack participated in a related employment
proceeding before the Wisconsin Labor & Industry Review
Commission. The precise nature of the proceeding is unclear,
in any event Lim claims that Tisack made false statements to
the Wisconsin tribunal as well. (Id. ¶¶
The Virginia Litigation
current claims are all based on THI's attempt to collect
on the Michigan judgment. Because Lim failed to post a
supersedeas bond, THI decided to collect on its award of
sanctions and costs while Lim's appeal to the Sixth
Circuit was still pending. THI obtained counsel in Virginia,
domesticated the Eastern District of Michigan's judgment,
which included the award of sanctions discussed
supra and a taxed bill of costs in the amount of $2,
122.70, and conducted debtor interrogatories. (Notice of
Filing of Foreign Judgment, Dkt. No. 3-1, at 60; Taxed Bill
of Costs, Dkt. No. 3-1, at 58; Order of Lynchburg City
Circuit Court, Dkt. No. 3-1, at 66; Compl. ¶ 25.) Lim
asserts that this judgment was invalid, improperly
domesticated, and uncertified (Compl. ¶¶ 25,
35-36), and that THI's requests for depositions and
interrogatories were unnecessary and made to harass him.
(Id. ¶ 36.)
answers to the debtor interrogatories revealed that he owned
a domain name and website:
“regulatorydoctor.com.” (Order of Lynchburg City
Circuit Court, Feb. 3, 2015.) In May 2015, the Lynchburg City
Circuit Court ordered that the website be sold to satisfy the
judgment. (Order of Lynchburg City Circuit Court, May 21,
2015.) Lim alleges that Tisack and THI threatened
him through their Virginia counsel, indicating that they
would “wreck [his] business” by seizing his web
domain if he did not abandon his appeal to the Sixth Circuit.
(Compl. ¶¶ 25-26.)
Lim's Present Litigation
commenced this action in January 2016 against various persons
and entities associated with THI. In addition to THI and
Tisack, Lim's complaint names THI's parent company
Terumo Cardiovascular Systems (TCVS) and Mark Sutter,
TCVS's President and CEO. (Id. ¶¶
(10), (14); Sutter Decl. ¶ 2, Dkt. No. 20-2.) Lim claims
that TCVS was his “primary employer for providing
relocation, salary, administrative and financial control
including governing Human Resources at the relevant times,
” while “THI was [his] secondary employer,
providing office space and HR support.” (Id.
¶ (9).) In addition, Lim sued Terumo Americas Holding,
Inc. (TAHI) and TAHI employee Juichi Takeuchi (Id.
¶¶ (11), (15)), both of whom were dismissed from
this action pursuant to Federal Rule of Civil Procedure 4(m).
(Order, Dkt. No. 39.) Finally, Lim sued Aaron Graves and
Bodman, PLC, the attorney and law firm that represented the
THI defendants in the Michigan litigation. (Compl.
¶¶ (16), (17).)
complaint brings ten claims against the defendants remaining
in this case. Count One asserts a Title VII retaliation claim
based on allegations that defendants aggressively litigated
the Michigan suit and tried to collect on their sanctions
award in order to retaliate against him. Counts Two through
Seven, all titled as species of “negligence, ”
“fraud, ” “invasion of privacy, ” or
“conspiracy, ” assert state law claims based on
THI's attempts to collect on its judgment against Lim.
The gravamen of these claims is that THI manipulated the
court to enforce an improper judgment. Finally, Count Eight
asserts a stand-alone vicarious liability claim, Count Nine
asserts defamation based on defendants'
misrepresentations in the various employment and
domestication proceedings, and Count Ten claims
misappropriation and theft of trade secrets arising from the
circuit court's order requiring Lim to transfer his
responded to Lim's initial complaint by first filing a
motion for sanctions and then filing a motion to dismiss.
(Dkt. Nos. 3, 19.) Lim amended his complaint, and defendants
once again moved to dismiss. (Dkt. No. 25.) The court's
May 27, 2016 Roseboro notice gave Lim twenty-one days from
the date of the notice to respond to defendants' motion
to dismiss (Dkt. No. 27), but Lim did not respond until June
27, 2016, thirty days later. Defendants subsequently filed an
additional motion to dismiss Lim's claims for failure to
prosecute, based on his noncompliance with the Roseboro
notice. (Dkt. No. 32.)
October 11, 2016, the court dismissed Juichi Takeuchi and
Terumo Americas Holding, Inc. because they had not been
served pursuant to Rule 4(m). (Order, Dkt. No. 39.) On
October 31, 2016, Lim filed a motion for reconsideration of
that dismissal, arguing that the dismissed parties had been
served with a request to waive service. (Dkt. No. ...