United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge
action has been filed by the Plaintiff asserting claims
against the named Defendants pursuant to the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12117, et seq.
Plaintiff alleges that after being initially hired by the
Defendants as an iron worker/welder on or about February 8,
2017, when it was subsequently discovered during his
orientation on February 22, 2017 that he had a disability
(deafness), he was terminated in violation of the ADA. The
named Defendants are the Yates Companies, Inc., along with
Jesco, Inc. and WG Yates Construction of South Carolina, LLC,
both alleged to be subsidiaries of the Yates Companies, Inc.
Defendant Jesco, Inc. filed an Answer on November 21, 2018.
However, the Defendants Yates Companies, Inc., and WG. Yates
Construction of South Carolina, LLC, both filed motions to
dismiss pursuant to Rule 12, Fed.R.Civ.P. After receiving an
extension of time to reply, Plaintiff filed memoranda in
opposition to the Defendants' motions on December 14,
2018, following which these Defendants filed reply memoranda
on December 21, 2018. These motions are now before the Court
their motions, the Defendants Yates Companies and WG Yates
Construction of South Carolina, LLC seek dismissal of all of
Plaintiff's claims asserted against them. When
considering a Rule 12 motion to dismiss, the Court is
required to accept the allegations in the pleading as true,
and draw all reasonable factual inferences in favor of the
party opposing the motion. Therefore, the Defendants'
motions can be granted only if the Plaintiff has failed to
set forth sufficient factual matters to state a plausible
claim for relief “on its face”. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Vogt v.
Greenmarine Holding, LLC, 318 F.Supp.2d 136, 144
(S.D.N.Y. 2004) [“[O]n a motion to dismiss, the Court
does not weigh the strength of the evidence, and simply
considers whether the [claim] alleges sufficient facts which,
if true, would permit a reasonable fact finder to find [the
party seeking dismissal of the claim] liable.”].
the Defendants Yates Companies, Inc. and WG Yates
Construction of South Carolina, LLC, assert that Plaintiff
has failed to allege a “plausible” claim against
them because 1) Plaintiff did not mention or name the
Defendants WG Yates Construction of South Carolina, LLC in
his administrative charge of discrimination filed with the
EEOC, and therefore cannot now pursue his discrimination
claim against this Defendant in this lawsuit; 2) that
Plaintiff has failed to state a claim against the Defendant
Yates Companies because he has failed to allege an employment
relationship existed between himself and the Yates Companies,
or to allege that the Yates Companies are part of an
“integrated employer”; and 3) Plaintiff has
failed to allege sufficient minimum contacts with South
Carolina to confer specific or general jurisdiction on the
Yates Companies, Inc.
memoranda filed in opposition, Plaintiff generally argues
that this case is in its early stages, that there has been no
discovery, and that the Defendants' motions are therefore
premature. Although Plaintiff does also offer some general
arguments against the pending motions, he further argues (and
requests) that if the Court determines that Plaintiff's
Complaint does fail to plead his causes of action against
these Defendants sufficiently, that he be granted leave to
amend his pleadings under Rule 15. Defendants oppose
Plaintiff's request, noting that Plaintiff has neither
filed a motion to amend nor a proposed amended complaint.
Cf. Bean v. Upsher-Smith Pharmaceuticals, Inc., No.
16-1696, 2017 WL 4348330, at * 8 (D.S.C. Sept. 29, 2017),
citing Cozzarelli v. Inspire Pharmaceuticals, Inc.,
549 F.3d 618, 630 (4th Cir. 2008). The undersigned
agrees with the Defendants that Plaintiff has not pursued
this possible remedy for potentially curing any defects in
his pleading in a proper manner. Even so, the Court is
reluctant to dismiss Plaintiff's claims against these
Defendants at this stage of the proceedings, where Plaintiff
represents to the Court that any potentially dispositive
defects could be cured through amendment. Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir.
2002)[“[W]hen [dismissal for failure to state a claim]
involves a civil rights complaint, ‘we must be
especially solicitous of the wrongs alleged' and
‘must not dismiss the complaint unless it appears to a
certainty the plaintiff would not be entitled to relief under
any legal theory which might plausibly be suggested by the
facts alleged'”], citing Harrison v. United
Postal Service, 840 F.2d 1149, 1152 (4th Cir. 1988).
Moreover, the Court finds the more appropriate action to be
that, if Plaintiff, after reviewing the Defendants'
arguments in their motions to dismiss, has further factual
allegations which he believes may address any deficiencies in
his pleadings, that all of those allegations should be
included in a proposed amended complaint prior to the
Court's consideration of any motions to dismiss.
it is recommended that these Defendants' motions to
dismiss be denied at this time, without prejudice. If the
Court adopts this recommendation, Plaintiff should be granted
fifteen (15) days to file a formal motion to amend with a
proposed amended complaint with the Court. Having been placed
on notice by the Defendants of the alleged defects in his
pleading, any proposed complaint should specifically address
those defects unless Plaintiff believes they are without
merit. No. further amendment will be allowed absent a showing
of good cause. Defendants should respond to any motion to
amend as provided by Rule.
parties are referred to the Notice Page attached hereto.
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 Post
Office Box 835 Charleston, South Carolina 29402
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, 7 ...