United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel, United States District Court Judge.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending that Defendant's
amended motion to dismiss be granted. For the reasons set
forth below, the Court adopts the Report and Recommendation
and dismisses this action.
2014, Plaintiff, proceeding pro se, brought suit
alleging that while employed with Defendant, she was passed
over for a promotion because of her age and race. Davis
v. MUSC-Physicians, Civ. No. 2:14-3152-MGB (the
"2014 Lawsuit"). She also brought claims of retaliation,
disability discrimination, and interference with rights
provided by the Family and Medical Leave Act. While
cross-motions for summary judgment were pending in that
action, Plaintiff filed the present action, which restates
the FMLA claim she brought in 2014,  in response to
Defendant's motion for summary judgment, in which
Defendant argued that it was not clear that Plaintiff had
alleged FMLA claims in her initial filing. Mot. Consol., 2014
Lawsuit, Dkt. No. 24 at 4-5.
March 29, 2016, the Court granted summary judgment in favor
of Defendant on all claims in the 2014 Lawsuit. Order, 2014
Lawsuit, Dkt. No. 94. That judgment fully adjudicated
Plaintiffs FMLA claims, and is currently pending on direct
appeal. Defendant has now moved to dismiss the present
action, which Plaintiff admits is a restatement of her FMLA
claims from the 2014 Lawsuit, as a duplicative action and
because of res judicata (Defendant amended the
motion to dismiss to assert res judicata). On July
28, 2016, the Magistrate Judge recommended that
Defendant's amended motion to dismiss be granted. (Dkt.
No. 32.) Plaintiff has filed no objections to the Report and
Report and Recommendation of the Magistrate Judge
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
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This
Court may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "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, " see Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted), and this Court is not required
to give any explanation for adopting the recommendation of
the Magistrate Judge, Camby v. Davis, 718 F.2d 198
(4th Cir. 1983).
Motion to Dismiss
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses. . . . Our inquiry
then is limited to whether the allegations constitute 'a
short and plain statement of the claim showing that the
pleader is entitled to relief.'" Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (quotation marks and citation omitted). In a Rule
12(b)(6) motion, the Court is obligated to "assume the
truth of all facts alleged in the complaint and the existence
of any fact that can be proved, consistent with the
complaint's allegations." E. Shore Mkts., Inc.
v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th
Cir. 2000). However, while the Court must accept the facts in
a light most favorable to the non-moving party, it "need
not accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to relief that is
plausible on its face." Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 570(2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
a federal suit may be dismissed "for reasons of wise
judicial administration ... whenever it is duplicative of a
parallel action already pending in another federal
court." Serlin v. Arthur Andersen & Co., 3
F.3d 221, 223 (7th Cir.1993); see also Colo. River Water
Conservation Dist. v. United States,424 U.S. 800, 817
(1976) (noting that although there is no specific rule
regarding federal cases, "the general principle is to
avoid duplicative litigation"). Duplicative claims
include those in which there are no significant differences
between the claims, parties, and available relief in the two
suits. Serlin, 3 F.3d at 223. In this action,
Plaintiff asserts claims that she asserted in the 2014
Lawsuit, arising from facts that she alleged in the 2014
Lawsuit, against the same Defendant as in the 2014 Lawsuit.
The 2014 Lawsuit is currently pending in another ...