United States District Court, D. South Carolina, Columbia Division
J. GOSSETT UNITED STATES MAGISTRATE JUDGE
plaintiff, Jana Warner, filed this employment action alleging
violations of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101, et
seq.; the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621, et
seq.; the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601, et
seq.; and state law against the named defendants, who
are her former employer (“LMC”) and supervisor.
The defendants removed this action from the Richland County
Court of Common Pleas, then filed the pending motions to
dismiss Warner's Amended Complaint. (ECF Nos. 7 &
this matter arises out of Warner's termination from
employment by LMC when she left early from a night shift at
approximately 5:40 a.m. Warner was suffering pain from
various maladies and sought permission from Defendant Settle
to leave early. Settle completed a form indicating that
Warner was leaving her shift prior to its completion, which
Warner signed. According to the Amended Complaint, Settle
then altered the form indicating that Warner had left early
and quit. Several hours later, LMC informed Warner that her
resignation had been accepted. Warner explained that she did
not intend to quit, but her employment was terminated.
Warner's causes of action that are the subject of the
defendants' motions to dismiss are her state law claim
for fraud against both defendants and her federal ADA
retaliation claim against LMC.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) examines the legal sufficiency of the facts alleged
on the face of the plaintiff's complaint. Edwards v.
City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To
survive a Rule 12(b)(6) motion, “[f]actual allegations
must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The “complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.' ” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). A
claim is facially plausible when the factual content allows
the court to reasonably infer that the defendant is liable
for the misconduct alleged. Id. When considering a
motion to dismiss, the court must accept as true all of the
factual allegations contained in the complaint. Erickson
v. Pardus, 551 U.S. 89, 94 (2007). The court “may
also consider documents attached to the complaint,
see Fed.R.Civ.P. 10(c), as well as those attached to
the motion to dismiss, so long as they are integral to the
complaint and authentic.” Philips v. Pitt Cty.
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)
(citing Blankenship v. Manchin, 471 F.3d 523, 526
n.1 (4th Cir. 2006)).
applicable here, Federal Rule of Civil Procedure 15(a)(2)
provides that “a party may amend its pleading only with
the opposing party's written consent or the court's
leave. The court should freely give leave when justice
requires.” Nevertheless, leave to amend may be denied
“when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or the amendment would have been futile.”
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006).
LMC and Settle both assert that the Amended Complaint filed
in the Richland County Court of Appeals prior to removal does
not meet the pleadings standards in federal court.
Additionally, both defendants contend that the Amended
Complaint does not meet the pleading standards specific to
fraud claims. See, e.g., Hollman v.
Woolfson, 683 S.E.2d 495, 499 (S.C. 2009) (“A
cause of action for fraud requires: (1) a representation of
fact; (2) its falsity; (3) its materiality; (4) either
knowledge of the falsity of the representation or reckless
disregard of its truth or falsity; (5) the intent that the
representation be acted on; (6) the hearer's ignorance of
the falsity of the representation; (7) the hearer's
reliance on the truth of the representation; (8) the
hearer's right to rely on the representation; and (9) the
hearer's consequent and proximate injury.”) (citing
Schnellmann v. Roettger, 645 S.E.2d 239 (S.C.
2007)); Rule 9(b), SCRCP (“In all averments of fraud or
mistake, the circumstances constituting fraud or mistake
shall be stated with particularity. Malice, intent,
knowledge, and other condition of mind of a person may be
averred generally.”); see also Fed.R.Civ.P.
response to the defendants' motions, Warner appears to
modify her theory of the case. For example, she rests her
opposition to Defendant LMC's motion on a theory of
constructive fraud. And with regard to Defendant Settle's
motion, she posits the theory that Settle made a material
misrepresentation to Warner through words and conduct that
Warner could leave work early without adverse consequences,
upon which Warner relied. (Cf. Am. Compl. ¶ 41,
ECF No. 1-1 at 7) (alleging that Settle misrepresented on the
LMC form that Settle “left work unfinished” and
“quit”). As to her ADA retaliation claim against
LMC, Warner's memorandum suggests that she may be
pursuing a claim that LMC retaliated against her by
transferring her after she requested an accommodation due to
her fibromyalgia pain. Because it appears that the pleading
deficiencies identified by the defendants may be cured-or at
least warrant additional briefing and scrutiny under these
apparent theories of her case-the court grants Warner leave
to file a second amended complaint to attempt to cure those
deficiencies within seven days of the date of this Order. The
defendants are granted fourteen days following the filing of
any such second amended complaint to supplement their
memoranda in support of their motions to dismiss, or to file
new motions if that is more appropriate.
to cure the deficiencies identified in the defendants'
motions may result in a recommendation for dismissal of the