United States District Court, D. South Carolina, Columbia Division
James E. Thompson, Plaintiff,
City of Columbia, Defendant.
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
plaintiff, James E. Thompson, filed this action against his
current employer pursuant to the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§
621, et seq.; and the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12101, et
seq.. He also alleges a state law claim of defamation.
This matter is before the court pursuant to 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) on the
defendant's Rule 12(b)(6) motion to dismiss all of
Thompson's claims. The motion has been fully briefed and
is ready for resolution.
motion illustrates the common occurrence where defense
counsel removes a case from state court and then attacks the
plaintiff's complaint for failing to meet federal
pleading standards. See Ashcroft v. Iqbal, 556 U.S.
662, 677-80, 684 (2009) (outlining pleading requirements
under Rule 8 of the Federal Rules of Civil Procedure for
“all civil actions”); Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007) (requiring the complaint to
contain sufficient factual matter, accepted as true, to state
a claim that is plausible on its face). Of course, the
plaintiff was not required to meet those standards when
drafting a pleading for filing in state court. And, although
the plaintiff argues in his memorandum in opposition to the
defendant's motion that his pleading does in fact satisfy
the federal rules of civil procedure and applicable case law,
the factual allegations of his Complaint do not go quite so
far as what counsel argues in the brief Because it
appears that further factual averments could render his
claims plausible, the court hereby grants him twenty-one days
to file an amended complaint. (Pl.'s Mem. Opp'n Mot.
Dismiss at 11 n.1, ECF No. 7 at 11 n.1) (requesting leave to
it is hereby
that the plaintiff is granted twenty-one days to file an
amended complaint. It is further
that the defendant's motion (ECF No. 4) is hereby
DISMISSED from the docket without prejudice
to refile if the plaintiffs amended complaint does not cure
IS SO ORDERED.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n the
absence of a timely filed objection, 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.'
” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P.
72 advisory committee's note).
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing
Robin L. Blume, Clerk United States District Court 901
Richland Street Columbia, South Carolina 29201
to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal
from a judgment of the District Court based upon such
Recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984).