Southern v. WakeMed
ORDER granting in part and denying in part #11 Motion to Dismiss Plaintiff's State Law Claims as Preempted by ERISA and adopting #31 MEMORANDUM AND RECOMMENDATION - The court LIFTS stay and DIRECTS the clerk to continue management of this matter. An initial order regarding planning and scheduling will follow. Signed by District Judge Louise Wood Flanagan on 3/30/2017. (Tripp, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
M.P. SOUTHERN On behalf of himself
and all others similarly situated,
This matter is before the court upon defendant’s motion to dismiss for failure to state a claim.
(DE 11). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate Robert B. Jones, Jr.,
entered a memorandum and recommendation (“M&R”) wherein it is recommended that the court
deny in part and grant in part defendant’s motion. Plaintiff timely filed an objection to the M&R,
(DE 35), and defendant responded. In this posture the issues raised are ripe for ruling. For the
reasons that follow, the court adopts the recommendations of the magistrate judge as its own and
denies in part and grants in part defendant’s motion.
Standard of Review
The district court reviews de novo those portions of a magistrate judge’s M&R to which
specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review
where a party makes only “general and conclusory objections that do not direct the court to a
specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for
“clear error,” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th
Cir.1983). Upon careful review of the record, “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).
Plaintiff raises a general objection that does not direct the court to a specific error in the
magistrate judge’ s M&R. Specifically, plaintiff objects to the determination that the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., preempts his state
Upon careful review of the M&R and the record in this case, the court adopts the analysis
and conclusions of the M&R as its own. Plaintiff’s breach of contract claims (Counts I–III) seek
to enforce terms of plaintiff’s ERISA-governed benefit plan and thus are completely preempted by
ERISA § 502(a)(3). Plaintiff’s remaining state law claims for unfair and deceptive trade practices
(Count IV), breach of fiduciary duty (Count V), constructive fraud (Count VI), violation of North
Carolina debt collection statute, N.C. Gen. Stat. § 75-54(4) (Count VII), conversion (Count VIII),
and violation of N.C. Gen. Stat §§ 131E-91(b) and/or (c) (Count IX) are premised on rights and
obligations directly tied to plaintiff’s ERISA-governed benefit plan and thus are expressly
preempted by ERISA § 514.
Based upon the foregoing, upon careful review of the M&R and the record, the court
ADOPTS the recommendation of the magistrate judge as its own. The court LIFTS stay and
DIRECTS the clerk to continue management of this matter. An initial order regarding planning and
scheduling will follow.
SO ORDERED, this the 30th day of March, 2017.
LOUISE W. FLANAGAN
United States District Judge
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