United States District Court, D. South Carolina, Columbia Division
Ricky T. Kirkland, Plaintiff,
Ferring Pharmaceuticals, Inc., Defendant.
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
this action, Plaintiff Ricky T. Kirkland
(“Plaintiff”) seeks recovery from Defendant
Ferring Pharmaceuticals, Inc. (“Defendant”) for
alleged age discrimination for declining to hire him. The
matter is before the court on Defendant's motion for
partial dismissal or, in the alternative, to strike portions
of the Complaint, and for attorneys' fees and costs
incurred in filing the motion. ECF No. 8. Plaintiff filed a
response. ECF No. 14.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B), DSC, this matter was referred to United States
Magistrate Judge Shiva V. Hodges for pre-trial proceedings
and a Report and Recommendation (“Report”). On
November 18, 2019, the Magistrate Judge issued a Report
recommending granting Defendant's motion for partial
dismissal and Defendant's request for attorneys' fees
and costs associated with filing the motion. ECF No. 15. The
Magistrate Judge advised the parties of the procedures and
requirements for filing objections to the Report and the
serious consequences if they failed to do so. Plaintiff filed
objections to the Report on December 2, 2019. ECF No. 20.
Defendant filed a reply. ECF No. 27.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo
determination of any portion of the Report and Recommendation
of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in
part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b). The court
reviews the Report only for clear error in the absence of an
objection. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of a timely filed objection, a
district court need not conduct a de novo review,
but instead must only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.”) (citation omitted).
Complaint makes multiple references to violations of Title
VII of the Civil Rights Act, despite the only cause of action
pled as a violation of the Age Discrimination in Employment
Act (“ADEA”). ECF No. 1. Therefore, after no
response to several requests for a clarifying stipulation
from Plaintiff, and informing Plaintiff a response was needed
before Defendant's deadline to file a motion under Rule
12(b)(6), Defendant filed its motion to dismiss Title VII
claim and to strike portions relating to Title VII claims
from the Complaint. ECF No. 8. Plaintiff responded, arguing
Defendant's “unnecessary and frivolous motion given
Plaintiff's repeated concessions that his sole claim is
one for violations of the ADEA” should be denied, and
filing an accompanying stipulation that he has not asserted a
claim under Title VII. ECF No. 14. The Report recommends
granting Defendant's motion to dismiss Plaintiff's
Title VII claim, and also recommends granting the request for
attorneys' fees and costs associated with filing the
motion because it “could have been avoided if
Plaintiff's counsel had provided the stipulation attached
at ECF No. 14-1 prior to October 30, 2019.” ECF No. 15
objects to the Report, arguing Defendant's Partial Motion
to Dismiss was “improper” and “unnecessary
. . . as the parties would have eventually resolved their
dispute without the Court's intervention.” ECF No.
20 at 3. Plaintiff also objects to the recommendation for
fees and costs, contending Defendant did not “prevail
because Plaintiff only raised one cause of action, which was
not dismissed.” Id.
replied, arguing its motion could have easily been avoided
had Plaintiff responded with a proposed resolution more
quickly. ECF No. 27 at 2. Defendant notified Plaintiff of the
deadline of October 30 to file a motion under Rule 12 if no
stipulation had been reached, yet Plaintiff did not respond
until November 13. Id.
court agrees with the Magistrate Judge and with Defendant.
Plaintiff's Complaint is rife with mention of Title VII,
such that Defendant's request to clarify was reasonable.
Defendant reached out to Plaintiff multiple times about the
Title VII issue before Defendant's deadline to file a
responsive pleading, requesting dismissal or a stipulation
limiting Plaintiff's claim to one under the ADEA. See ECF
No. 9-2. Defendant put Plaintiff on notice of its intention
to move for fees if it was forced to make a motion, yet
Plaintiff still did not respond. Id. Plaintiff did
not respond with such a stipulation until November 13, after
the responsive pleading deadline of October 30. Although
Plaintiff argues Defendant's motion is unnecessary, and
the parties would have “eventually” resolved the
dispute without the court's intervention, Defendant could
not have known this prior to the deadline for filing a Rule
after reviewing the record of this matter, the applicable
law, the Report and Recommendation of the Magistrate Judge,
and the parties' objections, the court agrees with the
Report and therefore adopts and incorporates it in this
Order. Defendant's motion for partial dismissal (ECF No.
8) is granted and, consistent with the stipulation filed,
Plaintiff's Complaint is limited to a claim under the
ADEA. Defendant's request for attorneys' fees and
costs associated with the motion for partial dismissal is
also granted. Defendant may submit a petition for reasonable
attorneys' fees associated with the motion no later than
January 3, 2020. This matter is re-referred to the Magistrate
Judge for further pre-trial proceedings.