United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
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
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) 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.)
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
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.").
Plaintiffs Motion to Remand (Dkt. No. 15) is Denied.
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.
The Long Cove Defendants' Partial Motion to Dismiss (Dkt.
No. 4) is Granted in Part and Denied in Part.
found it has jurisdiction over Plaintiffs claims, the Court
now addresses the Long Cove Defendants' partial motion to
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).
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 ...