United States District Court, D. South Carolina, Spartanburg Division
Kuk S. Yoo, Plaintiff,
BMW Manufacturing Co., LLC, and Premise Health Employer Solution, LLC, Defendants.
Timothy M. Cain, United States District Judge
Kuk S. Yoo originally filed this action against Defendant BMW
Manufacturing Co., LLC (“BMW”), alleging
violations of the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601, et. seq., and
the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101, et. seq., and a state law claim for
workers' compensation retaliation pursuant to S.C. Code
Ann. § 41-8-80. (ECF No. 1-1). BMW removed the action to
this court. (ECF No. 1). Plaintiff filed its First Amended
Complaint adding Premise Health Employer Solutions, LLC
(“Premise Health”), as a defendant and a
conspiracy claim against both BMW and Premise Health. (ECF
No. 33). Premise Health filed a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim, or,
alternatively, pursuant to Fed.R.Civ.P. 12(b)(1) for lack of
subject matter jurisdiction. (ECF No. 39). Thereafter, on
October 2, 2018, Plaintiff filed a response to the motion and
requested leave to file a Second Amended Complaint. (ECF No.
45 at 2). This matter is before the court on the magistrate
judge's Report and Recommendation (“Report”)
allowing Plaintiff to amend his complaint and recommending
that the court deny Premise Health's motion to dismiss
(ECF No. 39). (ECF No. 51). Premise Health timely filed
objections (ECF No. 54), and Plaintiff filed a reply (ECF No.
57). Premise Health then filed a second motion to dismiss.
(ECF No. 39). Plaintiff filed a response opposing the motion
(ECF No. 60), and Plaintiff filed a reply (ECF No.
This matter is now ripe for review.
worked for BMW for twenty-one years. (ECF Nos. 41 at 5; 56 at
7). Plaintiff alleges that after a work-related injury to his
elbow, his physician released him to work without
restrictions. (ECF No. 41 at 6). Plaintiff then suffered a
separate work-related injury to his lower back and filed for
workers' compensation benefits for this injury against
BMW. Id. On December 1, 2014, his workers'
compensation case was resolved, and BMW was required to pay
for Plaintiff's treatment for his work-related back
injury. Id. Plaintiff alleges that his personal
physician for his back injury released him without any
Health operates a medical facility on BMW's property in
Greer, South Carolina. (ECF No. 25-1 at n.1). Plaintiff
alleges that at BMW and/or Premise Health's request, he
underwent a functional capacity evaluation
(“FCE”), which determined he could work without
restrictions. (ECF No. 41 at 7). However, despite this FCE,
Plaintiff contends that Premise Health's Medical Review
Officer, Dr. Kenneth Hommel, placed him on permanent
restrictions. Id. BMW then informed Plaintiff that
he could no longer work in his current position with the
restrictions imposed by Dr. Hommel and BMW would attempt to
place him in another position. Id. BMW terminated
his employment on December 1, 2016. Id. Plaintiff
filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) alleging disability
retaliation against BMW. (ECF No. 34 at 5).
December 29, 2017, Plaintiff filed this action in state court
alleging violations of the FMLA and the ADA, and a state law
claim for workers' compensation retaliation pursuant to
S.C. Code Ann. § 41-8-80. (ECF No. 1-1 at 6-9). BMW
timely removed the action to this court. (ECF No. 1). The
deadline to amend the pleadings was June 28, 2018 (ECF No.
22), and on that date, Plaintiff filed a motion to amend the
complaint to add Premise Health as a defendant on all the
claims and to add a civil conspiracy claim against BMW and
Premise Health (ECF No. 23). The magistrate judge granted
Plaintiff's motion to amend on August 6, 2018, and
Plaintiff filed his first Amended Complaint on August 14,
2018. (ECF Nos. 32, 34). On September 18, 2018, Premise
Health filed a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6) for failure to state a claim, or, alternatively,
pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction. (ECF No. 39). Thereafter, on October 2, 2018,
Plaintiff filed a response to the motion and requested leave
to file a Second Amended Complaint. (ECF No. 45 at 2).
Alternatively, Plaintiff claimed that, because the Second
Amended Complaint was filed within twenty-one days of Premise
Health's responsive pleading, no motion was required, and
the magistrate judge should find that Plaintiff could file
his Second Amended Complaint as a matter of right pursuant to
Fed.R.Civ.P. 15. Id. at 3.
Report, the magistrate judge found that Plaintiff did not
have the right to file a Second Amended Complaint pursuant to
Rule 15(a). (ECF No. 51 at 5). However, she nonetheless
granted Plaintiff leave to file his Second Amended Complaint
and considered the Second Amended Complaint to be the
operative complaint. Id. She also agreed with
Premise Health that it should not have to file a new motion
to dismiss and, thus, she considered Premise Health's
motion to dismiss as applying to the Second Amended
Complaint. Id. After considering the merits of the
motion, she recommended that the court deny Premise
Health's motion to dismiss. Id. at 7.
12(b)(6) motion should not be granted unless it appears
certain that the pleading party can prove no set of facts
that would support his claim and would entitle him to relief.
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993). When considering a Rule 12(b)(6) motion, the
court should accept all well-pleaded allegations as true and
should view the complaint in a light most favorable to the
pleading party. Ostrzenski v. Seigel, 177 F.3d 245,
251 (4th Cir. 1999); Mylan Labs., 7 F.3d at 1134.
“To survive a motion to dismiss, a [claim] must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
[pleading party] pleads factual content that allows the court
to draw the reasonable inference that the [opposing party] is
liable for the misconduct alleged.” Id. The
raising of the statute of limitations as a bar to a cause of
action constitutes an affirmative defense and may be raised
by motion pursuant to Fed.R.Civ.P. 12(b)(6) if the time bar
is apparent on the face of the complaint. Dean v.
Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir.
2005) (citations omitted).
Second Amended Complaint
objections, pursuant to Fed.R.Civ.P. 72(a), Premise Health
contends that the magistrate judge erred in granting
Plaintiff leave to file a Second Amended Complaint. (ECF No.
54 at 1-4). Premise Health argues that in the scheduling
order the deadline to amend pleadings was June 28, 2018, and
Plaintiff filed his Second Amended Complaint three months too
late on October 9, 2018. Id. at 2. Therefore,
Premise Health contends that, in ruling on the motion for
leave to file an amended complaint, the magistrate judge
should have used the two-step analysis set forth in
Dilmar Oil Company v. Federated Mutual Insurance
Company, 986 F.Supp. 959, 980 (D.S.C. 1997). Plaintiff
contends that good cause exists for the court to allow him to
file the Second Amended Complaint because he sought to
address the deficiencies alleged in Premise Health's
motion to dismiss. (ECF No. 57 at 2). The court agrees with
Premise Health that the magistrate judge should have used the
two-step analysis in Dilmar. Accordingly, the court
modifies that part of the Report, as discussed below.
See Fed. R. Civ. P. 72(a).
of the Federal Rules of Civil Procedure governs amendments
before trial, providing in pertinent part that “[a]
party may amend its pleading once as a matter of course
within: (A) 21 days of serving it, or (B) if the pleading is
one to which a responsive pleading is required, 21 days after
service of a responsive pleading[.]” Fed.R.Civ.P.
15(a)(1). “In all other cases, a party may amend its
pleading only with the opposing party's written consent
or the court's leave.” Fed.R.Civ.P. 15(a)(2).
“The court should freely give leave when justice so
requires.” Id. Under Rule 15, “leave to
amend should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or amendment would be
futile.” Matrix Capital Mgmt. Fund, LP v.
BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009)
(internal citations omitted).
Rule 15 directs courts to allow amendment of pleadings freely
“when justice so requires, ” after the deadline
for amending pleadings set forth in a scheduling order has
passed, a party must first demonstrate good cause under
Fed.R.Civ.P. Rule 16 for the court to allow the amendment.
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298
(4th Cir. 2008). “[G]ood cause means that scheduling
deadlines cannot be met despite a party's diligent
efforts.” Dilmar Oil, 986 F.Supp. at 980
(citation omitted). “[I]f the moving party satisfies
Rule 16(b), the movant then ...