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Thompson v. City of Columbia

United States District Court, D. South Carolina, Columbia Division

January 22, 2019

James E. Thompson, Plaintiff,
v.
City of Columbia, Defendant.

          ORDER

          PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.

         The 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.

         This 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[1] 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 amend).

         Accordingly, it is hereby

         ORDERED that the plaintiff is granted twenty-one days to file an amended complaint. It is further

         ORDERED 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 those deficiencies.

         IT IS SO ORDERED.

         Notice of Right to File Objections to Report and Recommendation

         The 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).

         Specific 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 objections to:

Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201

         Failure 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).

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