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Bouknight v. KW Associates LLC

United States District Court, D. South Carolina

June 16, 2016

Kevin Bouknight, Plaintiff,
v.
KW Associates, LLC, d/b/a KW Beverage, d/b/a Budweiser of Columbia; Jim Kirkham, Defendants.

          OPINION AND ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS

          CAMERON MCGOWAN CURRIE Senior United States District Judge

         This matter is before the court on Defendants’ motion to dismiss Plaintiff’s claims for (1) wrongful termination in violation of public policy and (2) negligent misrepresentation. ECF No. 4 (motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)). Both claims arise out of Plaintiff Kevin Bouknight’s (“Bouknight’s”) employment with Defendant KW Associates, LLC (“Employer”) and statements made to Bouknight by Defendant Jim Kirkham (“Kirkham”) (collectively “Defendants”). For the reasons set forth below, the motion is granted and both claims are dismissed.

         BACKGROUND

         In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2), D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation (“Report”). On April 19, 2016, the Magistrate Judge issued a Report recommending Defendants’ motion to dismiss be granted in full. ECF No. 19.

         The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so. Bouknight filed objections on May 6, 2016. ECF No. 27. Defendants filed a response on May 19, 2016 and Bouknight filed a reply on May 20, 2016. ECF Nos. 29, 32.[1] This matter is now ripe for resolution.

         STANDARD

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of an objection, the court reviews only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’”) (quoting Fed.R.Civ.P. 72 advisory committee’s note)).

         DISCUSSION

         For reasons explained below, the court adopts both the reasoning and recommendation of the Report. Defendants’ motion to dismiss is, therefore, granted and Bouknight’s claims for wrongful termination in violation of public policy (“Wrongful Termination”) and negligent misrepresentation are dismissed. In light of the parties’ agreement, this ruling applies to the third (Wrongful Termination) and seventh (Negligent Misrepresentation) causes of action in the Second Amended Complaint.[2]

         I. Adequacy of Objections

         Defendants argue Bouknight’s objections are either insufficiently specific or belatedly raised arguments and, consequently, do not warrant a de novo review. Bouknight challenges these arguments on reply, noting, in part, that some of his objections address arguments Defendants raised for the first time in their reply in support of the motion to dismiss. The court need not resolve this dispute as it finds both the Report’s reasoning and recommendations proper under a de novo standard of review.

         II. Wrongful Termination in Violation of Public Policy

         Bouknight’s Wrongful Termination claim is based on allegations he was terminated for hiring an attorney after he filed a workers’ compensation claim.[3] The Report recommends this claim be dismissed because it is not based on either of the two previously recognized bases for a Wrongful Termination claim (where the employer requires the employee to violate the law or the termination is, itself, a violation of criminal law) or any other clear mandate of public policy. ECF No. 19 at 2-4 (noting extension beyond the two recognized bases requires “plaintiff . . . to show a clear mandate of public policy.”). Bouknight argues this recommendation is in error because South Carolina courts do not dismiss Wrongful Termination claims based on novel public policy theories at the pleading stage. ECF No. 27 at 2.

         The court disagrees. Certainly, some South Carolina cases have denied motions to dismiss Wrongful Termination claims based on novel public policy theories to allow further development of the facts. See, e.g., Barron v. Labor Finders of S.C., 713 S.E.2d 634, 637 (S.C. 2011) (noting two prior cases “declined to address whether the public policy exception applied because, in their procedural posture, it was not appropriate to decide the novel issue without further developing the facts of the case.”). The South Carolina Supreme Court has not, however, held that its subordinate courts may not address such issues at the pleading stage. It has, instead, held that “what constitutes public policy is a question of law for the courts to decide[, ]” which suggests the issue is one which may often, if not always, be resolved at the pleading stage. Barron, 713 S.E.2d at 637. The South Carolina Supreme Court also participated in resolution of a Wrongful Termination claim based on a novel public policy theory at the motion to dismiss stage by answering a question certified from the district court. See ...


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