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Kelly v. QVC

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

June 3, 2019

Marcus D. Kelly, Plaintiff,
v.
QVC, Defendant.

          ORDER

          R. BRYAN HARWELL, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court for consideration of Plaintiff's objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Kaymani D. West.[1] ECF Nos. 60, 72.[2]The Magistrate Judge recommends granting Defendant QVC's (“QVC”)[3] motion to dismiss and dismissing the amended complaint with prejudice. R & R at 14.

         Standard of Review

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

         Discussion [4]

         Plaintiff, proceeding pro se and in forma pauperis, brings this employment action against his former employer, QVC, alleging discrimination on the basis of race, color, and gender/sex pursuant to Title VII of the Civil Rights Act of 1964 (Title VII”), and discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”).[5][6] ECF No. 52. Plaintiff alleges QVC discriminated and retaliated against him on the basis of his race, national origin, religion, disability, sex/gender, and color, and wrongfully terminated him after a coworker obtained a restraining order against him. Id.[7] QVC has filed a motion to dismiss Plaintiff's amended complaint in which it seeks dismissal with prejudice of Plaintiff's amended complaint. ECF No. 53. QVC advances Plaintiff's amended complaint should be dismissed because: (1) the amended complaint is untimely; (2) the Court has previously dismissed some of Plaintiff's claims; and (3) Plaintiff fails to state a claim upon which relief can be granted as to the remaining causes of action. Id. Plaintiff responded to QVC's motion to dismiss, ECF No. 57, and QVC replied, ECF No. 58.

         The Magistrate Judge recommends the Court grant QVC's motion to dismiss, and dismiss Plaintiff 's amended complaint with prejudice . R & R . The Magistrate Judge notes Plaintiff's amended complaint was untimely filed, but suggests the Court excuse the untimeliness. Id. at 9. The R&R further recommends Plaintiff's remaining claims are due to be dismissed for failure to state a claim because he has neglected to provide sufficient facts to state discrimination claims at this stage of the proceedings. Id. at 10-14.

         Plaintiff has filed objections. ECF No. 72. However, in his objections, Plaintiff fails to allege a specific error in the R&R. Further, having reviewed the R & R, the record, and the law, the Court can discern no clear error. For those reasons, the Court will overrule Plaintiff's objections and adopt the R & R.

         Conclusion

         For the foregoing reasons, the Court OVERRULES Plaintiff's objections and ADOPTS the Magistrate Judge's R & R, ECF No. 60, to the extent it is consistent with this Order. Accordingly, the Court grants Defendant QVC's motion to dismiss, ECF No. 53, and dismisses with prejudice Plaintiff's amended complaint, ECF No. 52. IT IS SO ORDERED.

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Notes:

[1] The Magistrate Judge issued the R & R in accordance with 28 U.S.C. ยง 636(b)(1) and Local Civil Rule ...


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