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Lim v. Tisack

United States District Court, W.D. Virginia, Roanoke Division

March 30, 2017

CHANG LIM, Plaintiff,
GAEL TISACK, et al., Defendants.


          Elizabeth K. Dillon United States District Judge.

         Plaintiff 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 Lim's motions.

         I. BACKGROUND

         The 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).

         A. The Michigan Litigation

         The 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.)[1] 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.)

         After 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, [2] 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.)

         After 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).)

         B. Lim's Employment Proceedings

         At some 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.)

         At some 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, [3] but in any event Lim claims that Tisack made false statements to the Wisconsin tribunal as well. (Id. ¶¶ 17, 124.)

         C. The Virginia Litigation

         Lim's 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.)

         Lim's answers to the debtor interrogatories revealed that he owned a domain name and website: “” (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.)

         D. Lim's Present Litigation

         Lim 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.[4] (Compl. ¶¶ (16), (17).)

         Lim's 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 domain name.

         Defendants 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.)

         On 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. ...

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