Kotsias v. CMC II, LLC et al

Filing 70

ORDER that 59 Plaintiff's Objections are OVERRULED; 50 the Memorandum and Recommendation is ACCEPTED; 31 Defendant's Motion to Dismiss is GRANTED; and all of the Plaintiff's claims against the Defendant ESIS are hereby DISMISSED. Signed by District Judge Martin Reidinger on 12/20/2016. (khm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:15-cv-00242-MR-DLH

RITA KOTSIAS,

)
)
Plaintiff,
)
)
vs.
)
)
CMC II, LLC, LA VIE CARE CENTERS, )
d/b/a Consulate Health Care,
)
CONSULATE MANAGEMENT
)
COMPANY, FLORIDA HEALTH CARE )
PROPERTIES, LLC, and ESIS,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on the Motion to Dismiss filed by
the Defendant ESIS [Doc. 31]; the Magistrate Judge’s Memorandum and
Recommendation regarding the disposition of that motion [Doc. 50]; and the
Plaintiff’s Objections to the Memorandum and Recommendation [Doc. 59].
Pursuant to 28 U.S.C. § 636(b) and a specific Order of referral of the
District Court, the Honorable Dennis L. Howell, United States Magistrate
Judge, was designated to consider the pending motion in the abovecaptioned action. On September 29, 2016, the Magistrate Judge filed a
Memorandum and Recommendation [Doc. 50], in which the Magistrate
Judge recommended granting the Defendant’s Motion to Dismiss.

The

parties were advised that any objections to the Magistrate Judge's
Memorandum and Recommendation were to be filed in writing within
fourteen (14) days of service. The Plaintiff timely filed her Objections to the
Memorandum and Recommendation on October 13, 2016. [Doc. 59]. ESIS
filed a Reply to the Plaintiff’s Objections on October 31, 2016. [Doc. 63].
After careful consideration of the Plaintiff’s Objections, the Court finds
that the Magistrate Judge’s proposed conclusions of law are correct and
consistent with current case law. Accordingly, the Court hereby overrules
the

Plaintiff’s

Objections

and

accepts

the

Magistrate

Judge’s

recommendation that the Defendant’s Motion to Dismiss be granted.
In her Objections, the Plaintiff appears to argue in the alternative that
the Court should permit her to amend her claims against ESIS. [See Doc.
59 at 21]. The Plaintiff’s request is not well-taken. The Plaintiffs had twentyone days from the filing of the Defendant’s motion to dismiss to file an
amended complaint as of right and to address any pleading deficiencies
identified by the Defendant in its motion. See Fed. R. Civ. P. 15(a)(1)(B).
Despite having the unilateral right to do so, the Plaintiff failed to amend her
Complaint within the time required. Having failed to amend her pleading and
to address the deficiencies identified by the Defendant, the Plaintiff left the
Court with no option but to address the motion to dismiss on its merits. In so
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doing, the Magistrate Judge engaged in a thorough analysis of the Plaintiff’s
claims and the factual allegations made in support thereof. The Plaintiff
cannot now attempt to circumvent the Magistrate Judge’s recommendation
by seeking to amend her Complaint.

See Bailey v. Polk County, No.

1:10cv264, 2011 WL 4565449, at *4 (W.D.N.C. Sept. 29, 2011). In any
event, any such amendment would be futile, as the Plaintiff has not offered
any plausible factual basis to support an allegation that ESIS was her
employer or had any notice of the Plaintiff’s EEOC Charge.

For these

reasons, the Plaintiff’s request to amend her Complaint is denied.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Objections [Doc.
59] are OVERRULED; the Memorandum and Recommendation [Doc. 50] is
ACCEPTED; the Defendant’s Motion to Dismiss [Doc. 31] is GRANTED; and
all of the Plaintiff’s claims against the Defendant ESIS are hereby
DISMISSED.
IT IS SO ORDERED.

Signed: December 19, 2016

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