United States District Court, D. South Carolina, Florence Division
Nochus H. M. Berry, Plaintiff,
Perdue Farms, Inc.; and Perdue Transportation, Inc., Defendants.
BRYAN HARWELL CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court for consideration of Defendants
Perdue Farms, Inc.and Perdue Transportation, Inc.
(“Defendants”) objections to the Report and
Recommendation (“R & R”) of the Magistrate
Judge. ECF Nos. 18, 21. The Magistrate Judge
recommends denying Defendants' motion to dismiss and
allowing this matter to proceed to discovery. R & R at
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).
Court must engage in a de novo review of every
portion of the Magistrate Judge's R & R 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).
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Ci222r.
1985). The Court will address each specific objection to the
R & R in turn, but the Court need not - and will not -
address any arguments that fail to point the Court to alleged
specific errors the Magistrate Judge made in the R & R.
See Orpiano, 687 F.2d at 47.
February 7, 2019, Plaintiff, proceeding pro se, filed this
Complaint in state court. R & R at 4. Defendants removed
this action on March 15, 2019. ECF No. 1. Plaintiff
alleges one cause of action - a Workers Compensation
Retaliation Claim under S.C. Code Ann. § 41-1-80. R
& R at 1. On March 22, 2019, Defendants filed a motion to
dismiss, in which they allege this action should be dismissed
under Fed.R.Civ.P. 12(b)(6) because Plaintiff's claim is
barred by the applicable statute of limitations. ECF No. 10.
Plaintiff responded, ECF No. 16, and Defendants replied, ECF
Magistrate Judge recommends the Court deny Defendants'
motion to dismiss. R & R. Specifically, the Magistrate
Judge suggests the Court should deny Defendants' motion
to dismiss because it is too early in this litigation to
reach the merits of an affirmative defense, such as the
statute of limitations. Id. at 7. The Magistrate
Judge also construed part of Plaintiff's response to
Defendants' motion to dismiss as an equitable tolling
argument, and ultimately the Magistrate Judge suggests there
may be grounds to support a finding of equitable tolling.
Id. at 9.
raised two objections to the R & R. ECF No. 21.
Defendants first aver the Magistrate Judge erred in
recommending a ruling on the statute of limitations is
premature at this stage and requires discovery. Id.
at 1. Defendants also contend the Magistrate Judge erred in
recommending equitable tolling should apply to overcome
Plaintiff's allegedly untimely filing of the Complaint.
general rule, “a defense based on the statute of
limitations must be raised by the defendant through an
affirmative defense, see Fed. R. Civ. P. 8(c), and
the burden of establishing the affirmative defense rests on
the defendant.” Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 1999). A defendant's statute of
limitations affirmative defense can be raised in a Rule
12(b)(6) motion to dismiss; however, it is seldom appropriate
to do so. “A motion under Rule 12(b)(6) is intended to
test the legal adequacy of the complaint, and not to address
the merits of any affirmative defenses.”Richmond,
Fredericksburg, & Potomac R.R. v. Forst, 4 F.3d 244,
250 (4th Cir. 1993) Accordingly, a statute of limitations
defense must “clearly appear on the face of the
complaint.” Id. In other words, the complaint
must clearly “allege all facts necessary to the
affirmative defense.” Goodman, 494 F.3d at
464. (internal citation omitted).
Defendants' objections are unpersuasive. Defendants'
first objection asks this Court to convert their Rule
12(b)(6) motion to dismiss into a Rule 56 motion for summary
judgment. Defendants ask this Court to consider three
documents outside of the Complaint in order to prove
Plaintiff's claim is barred by the applicable statute of
limitations: (1) the declaration of Perdue Farms, Inc.'s
Complex Human Resources Manager Jamie Manaia; (2) a South
Carolina Department of Employment and Workforce decision
submitted by Plaintiff; and (3) an email Plaintiff sent to
Ms. Manaia. R & R at 3-4, Defendants' Objection at 3.
Defendants contend that, with this additional information,
“there is simply no possible dispute of material fact
as to timeliness based on the materials in the record.”
Defendants' Objection at 2.
fail to direct the Court to any legal authority that would
override the Fourth Circuit's clear direction in
Goodman that requires the complaint to clearly
allege “all facts necessary to the affirmative
defense” in order for the Court to grant a Rule
12(b)(6) motion to dismiss based on the statute of
limitations. Goodman, 494 F.3d at 464. (internal
citations omitted). Because Plaintiff's complaint does
not contain any of the relevant dates, including the date of
Plaintiff's discharge from employment with Defendants,
the Court will overrule Defendants' first objection and
decline to treat their motion as one for summary judgment.
The Court agrees with the Magistrate Judge that it is too
early to rule on the statute of limitations at the Rule
12(b)(6) stage, particularly in light of the possibility of
second objection is that the Magistrate Judge erred in
recommending equitable tolling could apply to overcome
Plaintiff's allegedly untimely claim. The Magistrate
Judge lists several facts Plaintiff set forth in his response
to Defendants' motion to dismiss that could justify
equitably tolling the statute of limitation. Defendants, in
their objection, argue Plaintiff has not met the high
standard for equitable tolling and therefore it should not
apply. This factual dispute underscores the need for
discovery to more fully develop the facts that may or may not
give rise to equitable tolling. See Cruz v. Maypa,
773 F.3d 138, 145-46 (4th Cir. 2014) (reversing in part the
district court's decision to grant the defendant's
motion to dismiss because the plaintiff's claims were
time-barred and concluding discovery was necessary for the
district court to determine if any or all of plaintiff's
claims were equitably tolled). The possibility that equitable
tolling could apply to Plaintiff's claim is an additional
reason why it is too early ...