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Kuhn v. The Yates Companies, Inc.

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

February 11, 2019

Steven Kuhn, Plaintiff,
v.
The Yates Companies, Inc., Jesco, Inc., and WG Yates Construction of South Carolina, LLC., Defendants.

          REPORT AND RECOMMENDATION

          Bristow Marchant, United States Magistrate Judge

         This 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.

         The 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 for disposition.[1]

         Discussion

         In 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.”].

         Here, 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.

         In his 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.

         Therefore, 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.[2]

         The parties are referred to the Notice Page attached hereto.

         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 Post Office Box 835 Charleston, South Carolina 29402

         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, 7 ...


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