United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
Margaret B. Seymour, Senior United States District Judge.
Kenneth Dale Walker filed this action in the Court of Common
Pleas for the County of Lexington, South Carolina, on June 5,
2017, alleging that his former employer, Defendant
Progressive Casualty Insurance Company
(“Progressive”), discriminated against him on
account of his age, in violation of the Age Discrimination in
Employment Act, 29 U.S.C. §§ 521, et seq. (First
Cause of Action). Plaintiff also asserts state law claims
against Progressive for termination in violation of public
policy (Second Cause of Action) and defamation (Third Cause
of Action); against Defendant Christina Stewart for tortious
interference with contract (Fourth Cause of Action); and
against Defendants Kevin Walston and Jim Armstrong for civil
conspiracy (Fifth Cause of Action). Defendants removed the
case to this court on July 21, 2017. In accordance with 28
U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this
matter was referred to United States Magistrate Judge Shiva
V. Hodges for pretrial handling.
August 4, 2017, Defendant Stewart filed a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6). Also on August 4, 2017,
Defendants Armstrong and Walston filed a motion to dismiss.
Plaintiff filed responses in opposition to each motion on
August 17, 2017, to which the respective Defendants filed
replies on August 24, 2017.
Defendant Stewart's Motion to Dismiss
Stewart contends Plaintiff fails to state a claim as to his
Fourth Cause of Action alleging tortious interference with
contract. To succeed on a claim of tortious interference with
contract, a plaintiff must prove five elements: (1) existence
of a valid contract; (2) the wrongdoer's knowledge
thereof; (3) his intentional procurement of its breach; (4)
the absence of justification; and (5) resulting damages
Dutch Fork Dev. Grp. II, LLC v. SEL Props., LLC, 753
S.E.2d 840, 844 (S.C. 2012). Defendant Stewart argues (1)
Plaintiff fails to plead facts sufficient to support the
existence of a contract between Plaintiff and Progressive;
(2) if such a contract existed, Progressive could not
interfere with a contract to which it was a party; and (3)
Defendant Stewart acted solely as an agent of Progressive,
and thus was not a stranger to any purported contract between
Plaintiff and Progressive.
Defendants Armstrong and Walston's Motion to
Armstrong and Walston contend Plaintiff fails to plead facts
sufficient to state a viable claim for his Fifth Cause of
Action, civil conspiracy. Under South Carolina law,
A civil conspiracy is a combination of two or more persons
joining for the purpose of injuring and causing special
damage to the plaintiff. A plaintiff need not allege an
unlawful act to state a cause of action; lawful acts may
become actionable as a civil conspiracy if the objective is
to ruin or damage the business of another. Therefore, the
primary inquiry in civil conspiracy is whether the principal
purpose of the combination is to injure the plaintiff.
Conspiracy may be inferred from the very nature of the acts
done, the relationship of the parties, the interests of the
alleged conspirators, and other circumstances.
Allegro, Inc. v. Scully, 791 S.E.2d 140, 144 (S.C.
2016) (internal citations omitted).
Armstrong and Walston state that (1) they are immune from
liability under the intracorporate conspiracy doctrine; (2)
Plaintiff fails to plausibly allege Defendants
“combined” for the purpose of injuring him; (3)
Plaintiff fails to plausibly allege an overt act beyond the
termination forming the basis of his other claims; (4)
Plaintiff fails to plead the existence of special damages.
The Magistrate Judge's Report and Recommendation
September 15, 2017, the Magistrate Judge issued a Report and
Recommendation in which she agreed that Defendant Stewart was
acting as an agent for Progressive. As such, this Defendant
could not be held liable for interfering with a contract to
which she was a party. With respect to civil conspiracy, the
Magistrate Judge noted that Plaintiff failed to plead facts
to show Defendant Armstrong played any role in
Plaintiff's termination. The Magistrate Judge noted that
a civil conspiracy claim cannot exist unless two or more
persons are acting in concert. The Magistrate Judge also
determined that Plaintiff failed to allege special damages.
Accordingly, the Magistrate Judge recommended that the
motions to dismiss be granted, without prejudice, with leave
to file an amended complaint within fifteen days of the
district court's order. The Magistrate Judge recommended
that, if no amended complaint is filed, the motions to
dismiss be granted with prejudice. No parties filed
objections to the Report and Recommendation.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). This 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. 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 ...