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Pastene v. Long Cove Club of HHI, SC

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

December 10, 2019

Alexander Pastene, Plaintiff,
v.
Long Cove Club of HHI, SC; General Manager L. Crimmins; Diane Adams; Ashley Davis; Michael Cochran; Guatemalan Worker So-Called Osmar; and his wife, Yurica, Defendants.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 20) recommending that Plaintiffs motion to remand be denied and the Long Cove Defendants' partial motion to dismiss be granted. For the reasons set forth below, the Court adopts in part and declines to adopt in part the R & R as the Order of the Court.

         I. Background

         Plaintiff Alexander Pastene proceeds pro se to bring seven claims arising out of his employment by Defendant Long Cove Club of HHI ("Long Cove Club")[1]: (1) unlawful discharge/retaliation by Defendants Davis and Cochran; (2) negligence by Long Cove Club, Davis and Cochran; (3) age discrimination, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., by Long Cove Club; (4) "physical injuries on the job" as to unspecified defendants; (5) intentional infliction of emotional distress by unspecified defendants; (6) loss of wages as to unspecified defendants; and (7) slander and defamation of character by Defendant Osmar. (Dkt. No. 1-1.) Defendants Long Cove Club, Crimmins, Adams, Davis and Cochran (the "Long Cove Defendants") removed this action from the South Carolina Court of Common Pleas in Beaufort County to the District Court for the District of South Carolina on the basis of federal question jurisdiction over the ADEA claim and pendant jurisdiction over the remaining claims. (Dkt. No. 1.)

         Here, Plaintiff moves to remand his lawsuit to state court and the Long Cove Defendants move to dismiss Counts One, Two, Four, Five, Six and Seven pursuant to Rule 12(b)(1) and Rule 12(b)(6). The Magistrate Judge recommends that Plaintiffs motion to remand be denied and the Long Cove Defendants' motion to dismiss be granted. Plaintiff filed untimely objections to the R &R (Dkt. No. 22), which the Court reviewed.

         II. Legal Standard

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight, and the responsibility to make a final determination remains with the Court. See, e.g., Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Where there are specific objections to the R & R, the Court "makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. In the absence of objections, the Court reviews the R & R to "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 advisory committee's note; see also Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) ("In the absence of objection ... we do not believe that it requires any explanation.").

         III. Discussion

         A. Plaintiffs Motion to Remand (Dkt. No. 15) is Denied.

         As the parties that invoked the district court's jurisdiction, the Long Cove Defendants bear the burden of establishing that the case was properly removed. Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994). The Court has federal question jurisdiction over Plaintiffs ADEA claim, 28 U.S.C. § 1331, and supplemental jurisdiction over the remaining claims, 28 U.S.C. § 1367, which on the face of the complaint also arise out of his employment by Long Cove Club. Because removal was proper, Plaintiffs motion to remand is denied.

         B. The Long Cove Defendants' Partial Motion to Dismiss (Dkt. No. 4) is Granted in Part and Denied in Part.

         Having found it has jurisdiction over Plaintiffs claims, the Court now addresses the Long Cove Defendants' partial motion to dismiss them.

         When a Rule 12(b)(1) challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Id. The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Id. A district court order dismissing a case on the grounds that the undisputed facts establish a lack of subject matter jurisdiction is a legal determination subject to de novo appellate review. Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989).

         Rule 12(b)(6) permits the dismissal of an action if the complaint fails "to state a claim upon which relief can be granted." The "inquiry then is limited to whether the allegations constitute a short and plain statement of the claim showing that the pleader is entitled to relief." Republican Party of N.C v. Martin,980 F.2d 943, 952 (4th Cir. 1992). The district court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). The court must accept the facts in a light most favorable to the non-movant, but "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id. To survive a Rule 12(b)(6) challenge, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly,550 U.S. 544, 570 (2007). Plausibility does not require probability, but the complaint must show more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the pleading "allows the court to draw the reasonable inference that the defendant is liable ...


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