United States District Court, D. South Carolina, Greenville Division
Timothy M. Cain United States District Judge
proceeding pro se, filed this action seeking recovery under a
profit sharing plan administered by his former employer,
Wilson Burial Vault, Inc. Plaintiff has filed a motion for
judgment on the pleadings or, in the alternative, to strike
defenses (ECF No. 30), and Defendants have filed motions to
dismiss (ECF Nos. 20, 35) or in the alternative, a motion to
compel Plaintiff to execute a new distribution form. (ECF No.
35). In accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02, D.S.C., this matter was referred to a
magistrate judge for pretrial handling. Before the court is
the magistrate judge’s Report and Recommendation
(“Report”), recommending that the court deny
Plaintiff’s motion for judgment on the pleadings, grant
in part Defendants’ motions to dismiss, and grant
Defendants’ alternative motion to compel. (ECF No. 48).
The parties were advised of their right to file objections to
the Report. (ECF No. 48 at 14). Plaintiff has filed
objections. (ECF No. 50).
magistrate judge makes only a recommendation to the court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the
magistrate fudge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the magistrate
judge’s conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
of background, Plaintiff filed this suit seeking to recover
distributions of a profit sharing plan that he contends he
was immediately entitled to upon termination of his
employment. (ECF No. 1). In his complaint, Plaintiff claims
he is entitled to $22, 108.38. (ECF No. 1-1). He seeks
injunctive relief as well as compensatory and punitive
damages. (ECF No. 1). Defendants answered the complaint and
filed a motion to dismiss. (ECF Nos. 20, 23). Defendants do
not dispute that Plaintiff is entitled to a sum of money
under the profit sharing plan, but they contend that the
terms of the plan require that such a distribution be made at
the end of the year in which the employee’s employment
is terminated, which in this instance, was December 31, 2015.
the plan administrator completed its year-end accounting in
April 2016, Defendants determined that Plaintiff is actually
entitled to $27, 138.71 (less a $90 dollar administrative
cost). Defendants sent an updated distribution form
reflecting the increased amount of benefits, and Plaintiff
has refused to sign it. In his response to the second motion
to dismiss, Plaintiff asserts that the updated form is part
of an alleged fraudulent scheme of Defendants. (ECF No. 38).
Plaintiff claims that he signed the original distribution
form and Defendants have not presented any justification for
why he must sign the second form. (ECF No. 46). Defendants
assert that Plaintiff must sign the form and that he will
receive his benefits upon doing so. (ECF No. 47).
magistrate judge issued a Report. (ECF No. 48). In the
Report, the magistrate judge properly explains the
inapplicability of the various statutory provisions that
Plaintiff cites to support his claims. The magistrate judge
also discusses the need for the updated distribution form.
(ECF No. 48 at 11-13).
objections, Plaintiff asserts that the plan administrator is
not required to provide notice to former employees. (ECF No.
court finds that Plaintiff’s objections are without
merit. As stated by the magistrate judge, the Treasury
Regulations require that a plan administrator meet the
consent requirements prior to distributing any portion of the
plan. 26 C.F.R. § 1.411(a)-11(c)(1). Consent is valid
only for 90 days. Id. § 1.411(a)-11(c)(2)(iii).
The initial consent form was executed on May 12, 2015, well
beyond 90 days from the date of the recalculated figure. (ECF
No. 48 at 12). For that reason, the court finds that
Plaintiff’s objections should be overruled.
court has thoroughly reviewed the Report and
Plaintiff’s objections and finds no reason to deviate
from the Report’s recommended disposition. Based on the
foregoing, the court adopts the Report (ECF No. 48) and
incorporates it herein. It is, therefore, ORDERED that
Plaintiff’s motion for judgment on the pleadings or, in
the alternative, to strike defenses (ECF No. 30) is DENIED;
that Defendants’ motions to dismiss (ECF Nos. 20, 35)
are GRANTED in part; that Defendants’ motion to compel
Plaintiff to execute a new distribution form (ECF No. 35) is
GRANTED; and that once the distribution ...