Ervin v. Agape Senior

Filing 53

ORDER RULING ON REPORT AND RECOMMENDATION adopting 41 Report and Recommendation, denying 34 Motion to Dismiss. Signed by Honorable Joseph F. Anderson, Jr. on 08/24/2015. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Demetria Latrice Ervin,

C/A No. 0:15-917-JFA-PJG

Plaintiff,
vs.
Ebenezer Senior Services, LLC

ORDER

Defendant.

Plaintiff Demetria Latrice Ervin (hereinafter “Ervin”), a self-represented litigant, filed this
action alleging race discrimination pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. §§ 2000e, et seq., against her former employer, initially identified as Agape Senior, but now
properly identified as Ebenezer Senior Services, LLC (hereinafter “Ebenezer”). (See ECF 43).
Additionally, Ervin alleges a state law defamation claim against Ebenezer. (ECF No. 47). This matter
comes before the Court on Ebenezer’s Motion to Dismiss pursuant to Fed. R. Civ. P. Rules 12(b)(1),
12(b)(2), 12(b)(4), and 12(b)(6). (ECF No. 34). Ervin filed a response and memorandum in opposition
to Ebenezer’s motion. (ECF No. 39).
The Magistrate Judge assigned to this action1 has prepared a Report and Recommendation
wherein she recommends that this Court deny the aforementioned motion. (ECF No. 41). The Report
and Recommendation sets forth the relevant facts and standards of law in this matter, and the Court
incorporates such without a recitation.

1
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02.
The 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. Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of those portions of the Report to which specific objection
is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The non-moving parties were advised of their right to file objections to the Report and
Recommendation, which was entered on the docket on August 3, 2015. However, no objections were
filed. In the absence of specific objections to the Report of the Magistrate Judge, this Court is not
required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983).
In her Report and Recommendation, the Magistrate Judge opined that subject matter
jurisdiction existed over Ervin’s claims pursuant to Rule 12(b)(1), and that Ervin’s allegations in
support of both the Title VII and the state law defamation claims were sufficient to withstand a motion
to dismiss pursuant to Rule 12(b)(6). Finally, the Magistrate Judge allowed the Complaint to be
amended to reflect the name of the proper defendant – Ebenezer.
After carefully reviewing the applicable laws, the record in this case, and the Report and
Recommendation, this Court finds the Magistrate Judge’s recommendation fairly and accurately
summarizes the facts and applies the correct principles of law. The Report is incorporated herein by
reference in its entirety.
Accordingly, this Court respectfully denies Ebenezer’s Motion to Dismiss. (ECF No. 34). The
Clerk is directed to return this file back to the Magistrate Judge for further proceedings in this matter.
It is so ordered.

August 24, 2015
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

2