United States District Court, D. South Carolina, Columbia Division
F. Anderson, Jr.United States District Judge
Plaintiff, Jana Warner, filed this employment action pursuant
to the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101, et seq.; the Family and Medical
Leave Act (FMLA), 29 U.S.C. §§ 2601, et
seq.; and asserting state law violations, including
defamation, fraud, and constructive fraud, against her former
employer, Lexington Medical Center (LMC), and her former
supervisor, Evelyn Settle (Settle). (ECF No. 34). In
accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02(B)(2)(g) (D.S.C.), the case was referred to a
Magistrate Judge for Review.
filed her Amended Complaint in state court on June 16, 2017.
(ECF No. 1-1). On July 21, 2017, LMC filed its Notice of
Removal. (ECF No. 1). Plaintiff filed her Second Amended
Complaint on November 9, 2017. (ECF No. 34). On November 21,
2017, LMC filed a partial motion to dismiss, asserting that
Plaintiff's cause of action against LMC for constructive
fraud should be dismissed. (ECF No. 36). Plaintiff responded
to the Defendant's Motion on December 5, 2017 (ECF No.
42), and Defendant replied to Plaintiff's Response on
December 12, 2017 (ECF No. 43). On February 22, 2018, the
Magistrate issued a Report and Recommendation (Report). (ECF
Magistrate Judge assigned to this action prepared a
thorough Report and Recommendation, recommending that
Defendant's Partial Motion to Dismiss should be granted.
(ECF No. 48). The Report sets forth, in detail, the relevant
facts and standards of law on this matter, and this Court
incorporates those facts and standards without a recitation.
district court is only required to conduct a de novo review
of the specific portions of the Magistrate Judge's Report
to which an objection is made. See 28 U.S.C. §
636(b); Fed.R.Civ.P. 72(b); Martin v. Duffy, 858
F.3d 239, 245 (4th Cir. 2017). In the absence of specific
objections to portions of the Magistrate's Report, this
Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983). Thus, the Court must only review those
portions of the Report to which Plaintiff has made a specific
written objection. Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir.
Magistrate found that Plaintiff's claim against LMC for
constructive fraud should be dismissed because “the
Complaint fails to set forth facts plausibly alleging the
existence of the requisite fiduciary relationship to support
a claim of constructive fraud.” (ECF No. 48 p. 4).
[T]o recover upon the grounds of actual fraud based on
representation, the following elements must be shown: (1) a
representation; (2) falsity; (3) its materiality; (4)
knowledge of the falsity or a reckless disregard of its truth
or falsity; (5) intent that the representation be acted upon;
(6) the hearer's ignorance of its falsity; (7) the
hearer's reliance upon the truth; (8) the hearer's
right to rely thereon; and (9) the hearer's consequent
and proximate injury.
Moorhead v. First Piedmont Bank and Tr. Co., 273
S.C. 356, 359, 256 S.E.2d 414, 416 (1979) (citing
O'Shields v. S. Fountain Mobile Homes, 262 S.C.
276, 282, 204 S.E.2d 50, 52 (1974)). “Where the
complaint omits allegations on any element of fraud,
the trial court should grant the defendant's motion to
dismiss the claim.” Ardis v. Cox, 314 S.C.
512, 515, 431 S.E.2d 267, 269 (Ct. App. 1993) (emphasis
added) (citing Inman v. Ken Hyatt Chrysler
Plymouth, Inc., 294 S.C. 240, 242, 363 S.E.2d 691, 692
establish constructive fraud, a plaintiff must establish all
of the above nine elements of fraud except for the element of
intent. Id. at 516, 431 S.E.2d at 269. Thus,
“[n]either actual dishonesty of purpose nor intent to
deceive is an essential element of constructive fraud.”
Id. at 516, 431 S.E.2d at 269-70. “However, in
a constructive fraud case where there is no confidential or
fiduciary relationship, and an arm's length transaction
between mature, educated people is involved, there is no
right to rely.” Id. at 516, 431 S.E.2d at 270
(citing Poco-Grande Invs. v. C. & S Family Credit,
Inc., 301 S.C. 322, 325, 391 S.E.2d 735, 735 (Ct. App.
South Carolina law, “[a] fiduciary relationship is
founded on the trust and confidence reposed by one person in
the integrity and fidelity of another.” Moore v.
Moore, 360 S.C. 241, 250, 599 S.E.2d 467, 472 (Ct. App.
2004) (citing Ellis v. Davidson, 358 S.C. 509, 519,
595 S.E.2d 817, 822 (Ct. App. 2004); Regions Bank v.
Schmauch, 354 S.C. 648, 670, 582 S.E.2d 432, 444 (Ct.
App. 2003); Redwend Ltd. P'ship v. Edwards, 354
S.C. 459, 476, 581 S.E.2d 496, 505 (Ct. App. 2003)). Such a
relationship exists “when one imposes a special
confidence in another, so that the latter, in equity and good
conscience, is bound to act in good faith and with due regard
to the interest of the one imposing the confidence.”
Id. (citing Hendricks v. Clemson Univ., 353
S.C. 449, 458, 578 S.E.2d 711, 715 (2003); O'Shea v.
Lesser, 308 S.C. 10, 15, 416 S.E.2d 629, 631 (1992);
*251 SSI Med. Servs., Inc. v. Cox, 301 S.C. 493,
500, 392 S.E.2d 789, 794 (1990); Regions Bank, 354
S.C. at 670, 582 S.E.2d at 444; Steele v. Victory Sav.
Bank, 295 S.C. 290, 293, 368 S.E.2d 91, 93 (Ct. App.
1988)). Moreover, to constitute a fiduciary relationship, the
relationship must be something more than
“casual.” Id. at 251, 599 S.E.2d at 472.
Plaintiff objects to the Magistrate's finding that there
is no fiduciary relationship between the Plaintiff and her
employer, LMC, alleging that Plaintiff's situation was
“unique” and that “state law creates a
fiduciary duty” where nurses are involved. (ECF No. 49
p. 3). Specifically, Plaintiff claims that the South Carolina
Nursing Code of Ethics creates the requisite fiduciary duty.
(ECF No. 49 p. 4). Plaintiff, however, provides no case law
to support its assertion that the Nursing Code of Ethics
creates a fiduciary duty between LMC and the Plaintiff.
Moreover, although South Carolina courts have not addressed
the specific issue of whether a nurse and her employer have a
fiduciary relationship, at least one other court has
addressed the issue, and it determined that no such fiduciary
relationship exists. See State ...