United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
of the Magistrate Judge. For the reasons set forth below, the
Court adopts in part and declines to adopt in part the Report
and Recommendation, grants Defendant Holy City
Hospitality's motion to dismiss, grants Embassy
Suites' motion to dismiss, and dismisses the complaint
Plaintiff, proceeding pro se, filed the present
action against Defendants Holy City Hospitality
("HCH") and Embassy Suites (Hilton) on August 12,
2016. Plaintiff alleges she lost her job because of sexual
harassment, in violation of Title VII of the Civil Rights Act
of 1964, and because she requested a Family and Medical Leave
Act ("FMLA") form, in violation of the FMLA. She
further alleges that she was "denied unemployment
benefits because of what the employer said, " she lost
her apartment, and suffered "emotional and mental"
trauma." (Dkt. No. 1 at 5.) She seeks $150, 000 in
damages. (Id.) The complaint contains no further
December 22, 2016, HCH moved to dismiss. (Dkt. No. 18.)
Plaintiff filed an opposition to HCH's motion on January
23, 2017. (Dkt. No. 22.) On March 30, 2017, Embassy Suites
Management LLC, responding on behalf of "Embassy Suites
(Hilton), " moved to dismiss. (Dkt. No. 24.) By order
filed March 31, 2017, Plaintiff was advised of the possible
consequences if she failed to respond to the motion by May 1,
2017. (Dkt. No. 27.) Plaintiff did not respond to the motion.
On June 9, 2017, the Court extended the time to respond to
June 29, 2017. (Dkt. No. 29.) Plaintiff still did not respond
to Embassy Suites' motion. On July 13, 2017, the
Magistrate Judge recommended that Plaintiffs sexual
harassment claim be dismissed without prejudice and that the
motions to dismiss be denied as to the FMLA claim. Defendants
objected to the Report and Recommendation, but Plaintiff
filed no objections. Plaintiff has not communicated with the
Court since January 2017.
Report and Recommendation
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 Under Rule 12(b)(1)
motion to dismiss for lack of subject-matter jurisdiction
filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure challenges the jurisdiction of a court to
adjudicate the matter before it. Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006). A challenge to
subject-matter jurisdiction may contend either 1) that the
complaint fails to allege facts sufficient to establish
subject matter jurisdiction or 2) "that the
jurisdictional allegations of the complaint [are] not
true." Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982). Where the sufficiency of the jurisdictional
allegations in the complaint is challenged facially,
"the facts alleged in the complaint are taken as true,
and the motion must be denied if the complaint alleges
sufficient facts to invoke subject matter jurisdiction."
Kerns v. United States, 585 F.3d 187, 192 (2009).
If, however the defendant contends "that the
jurisdictional allegations of the complaint [are] not true,
" the plaintiff bears the burden to prove facts
establishing jurisdiction and the district court may
"decide disputed issues of fact." Id. In
that case, because the plaintiffs allegations are not
presumed true, "the court should resolve the relevant
factual disputes only after appropriate discovery."
24th Senatorial Dist. Republican Comm. v. Alcorn,
820 F.3d 624, 629 (4th Cir. 2016). And where "the
jurisdictional facts and the facts central to a tort claim
are inextricably intertwined, " so that a challenge to
the truth of the jurisdictional facts indirectly challenges
the plaintiffs claims on the merits, "the trial court
should ordinarily assume jurisdiction and proceed to the
intertwined merits issues." Kerns, 585 F.3 at
Motion to Dismiss Under 12(b)(6)
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 Atl. 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.