Nave v. Centurra Group, LLC

Filing 38

ORDER RULING ON REPORT AND RECOMMENDATION accepting in part and rejecting in part 24 Report and Recommendation, granting 5 Motion for Judgment on the Pleadings pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure. Accordingly, the court GRANTS Defendant judgment as to Plaintiff's claims for constructive fraud and negligent misrepresentation. Signed by Honorable J Michelle Childs on 8/18/2017. (asni, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Timothy Nave,

)
)
Plaintiff,
)
v.
)
)
Centerra Group, LLC,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 1:16-cv-03373-JMC

ORDER AND OPINION

Plaintiff Timothy Nave (“Plaintiff”) filed this action against his former employer,
Defendant Centerra Group, LLC (“Defendant”) alleging that he was subjected to age
discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. §§ 621-634. (ECF No. 1-1 at 17 ¶ 36–18 ¶ 42.) In addition, Plaintiff asserts state law
claims for negligent misrepresentation and constructive fraud. (Id. at 15 ¶ 17–17 ¶ 35.)
This matter is before the court pursuant to Defendant’s Motion for Partial Judgment on
the Pleadings under Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure. (ECF No.
5.) Specifically, Defendant asserts that it is entitled to judgment on the pleadings as to Plaintiff’s
claims for negligent misrepresentation and constructive fraud. (Id. at 1.) Plaintiff opposes
Defendant’s Motion on the claim for negligent misrepresentation. (ECF No. 11 at 4.) In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(g) D.S.C., the matter was
referred to United States Magistrate Judge Paige J. Gossett for pretrial handling. On December
28, 2016, the Magistrate Judge issued a Report and Recommendation (ECF No. 24) in which she
recommended that the court grant Defendant’s Motion in part as to Plaintiff’s claim for
constructive fraud and deny in part as to his claim for negligent misrepresentation. (Id. at 8.)
Defendant filed Objections to the Magistrate Judge’s Report and Recommendation, which

Objections are presently before the court. (ECF No. 25.) For the reasons set forth below, the
court ACCEPTS IN PART AND REJECTS IN PART the Magistrate Judge’s
recommendation and GRANTS Defendant’s Motion for Partial Judgment.
I.

RELEVANT BACKGROUND TO PENDING MOTION

The facts of this matter are discussed in the Report and Recommendation. (ECF No. 24.)
The court concludes, upon its own careful review of the record, that the Magistrate Judge’s
factual summation is accurate and incorporates it by reference. The court will only reference
herein additional facts viewed in the light most favorable to Plaintiff that are pertinent to the
analysis of his claims.
Plaintiff alleges that he was hired by Defendant in approximately 1986.1 (ECF No. 1-1 at
13 ¶ 6.) In 2013, Plaintiff alleges that he was employed “as a Special State Constable, with all
the rights, duties, power, and privileges of a deputy sheriff of Aiken, Allendale, and Barnwell
Counties,” which position “enabled him to make and conduct traffic stops and do traffic crash
investigations.” (Id. at 13 ¶ 7.) After he was denied a promotion to captain, Plaintiff alleges that
he applied for and received approval to attend the South Carolina Criminal Justice Academy
(“SCCJA”). (Id. at 14 ¶ 10.) “Plaintiff attended the SCCJA and graduated in October 2014.”
(Id. ¶ 12.) After graduating from the SCCJA, Plaintiff alleges that he returned to work and was
suspended “for 30 days without pay and then demoted” to lieutenant because “he improperly had
his service weapon with him when he attended classes at the SCCJA.” (Id. ¶ 13.) As a result of
his demotion, Plaintiff alleges he “was stripped of his special state constable commission and his
class 1 police officer certification.” (Id.) Thereafter, Plaintiff alleges that he was forced to
resign his employment with Defendant. (Id. ¶ 15.)
1

In the Answer, Defendant states that Plaintiff was hired on “approximately December 23, 1986,
and that Plaintiff began work on January 12, 1987.” (ECF No. 4 at 3 ¶ 6.)
2

After his alleged constructive discharge, Plaintiff alleges that he filed a Charge of
Discrimination (the “Charge”) with the United States Equal Employment Opportunity
Commission. (Id. at 13 ¶ 5.) Then, on August 4, 2016, after allegedly receiving notice of the
right to sue from the EEOC as to the Charge, Plaintiff commenced the instant action against
Defendant in the Court of Common Pleas for the County of Aiken (South Carolina) asserting the
aforementioned claims for negligent misrepresentation, constructive fraud and violation of the
ADEA. (ECF No. 1-1 at 4–10.) On September 6, 2016, Plaintiff amended his Complaint. (Id. at
11–18.) After removing the case to this court on October 13, 2016 (see ECF No. 1), Defendant
filed on that same day the instant Motion for Partial Judgment on the Pleadings. (ECF No. 5.)
On November 7, 2016, Plaintiff filed a Memorandum in Opposition to Defendant’s Motion to
Dismiss (ECF No. 11), to which Defendant filed a Reply Brief in Support of Partial Judgment on
the Pleadings (ECF No. 12) on November 11, 2016.
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., the
Magistrate Judge, after reviewing the parties’ briefs and considering their arguments, issued the
aforementioned Report and Recommendation on December 28, 2016. (ECF No. 24.) On
January 9, 2017, Defendant filed Objections to the Magistrate Judge’s Report and
Recommendation. (ECF No. 25.)
II.

JURISDICTION

The court has jurisdiction over Plaintiff’s ADEA claims via 28 U.S.C. § 1331, as they
arise under a law of the United States, and also via 29 U.S.C. § 633(c), which statute empowers
district courts to hear claims brought under the ADEA. The court may properly hear Plaintiff’s
state law claims for negligent misrepresentation and constructive fraud based on supplemental
jurisdiction since these claims “are so related to claims in the action within such original

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jurisdiction that they form part of the same case or controversy . . . .” 28 U.S.C. § 1367(a).
III.
A.

LEGAL STANDARD

The Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to this court. The recommendation

has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections2
are filed, and reviews those portions which are not objected to - including those portions to
which only “general and conclusory” objections have been made - for clear error. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
B.

Motions Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
A Rule3 12(b)(6) motion for failure to state a claim upon which relief can be granted

“challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th
Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.”). To be legally
sufficient a pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
2

An objection is specific if it “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” One Parcel of Real Prop. Known
As 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140,
147 (1985)).
3
The court observes that “rule” refers to the Federal Rules of Civil Procedure.
4

A Rule 12(b)(6) motion “should not be granted unless it appears certain that the plaintiff
can prove no set of facts which would support its claim and would entitle it to relief.” Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6)
motion, the court should accept as true all well-pleaded allegations and should view the
complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th
Cir. 1999); Mylan Labs., 7 F.3d at 1134. “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
C.

Motions for Judgment on the Pleadings Pursuant to Rule 12(c)
Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay

trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A motion for
judgment on the pleadings is intended to test the legal sufficiency of the complaint and will
operate to dispose of claims “where the material facts are not in dispute and a judgment on the
merits can be rendered by looking to the substance of the pleadings and any judicially noted
facts.” Cont’l Cleaning Serv. v. UPS, No. 1:98CV1056, 1999 WL 1939249, at *1 (M.D.N.C.
Apr. 13, 1999) (citing Herbert Abstract v. Touchstone Props., Inc., 914 F.2d 74, 76 (5th Cir.
1990)). “[A] motion for judgment on the pleadings is decided under the same standard as a
motion to dismiss under Rule 12(b)(6).” Deutsche Bank Nat’l Trust Co. v. IRS, 361 F. App’x
527, 529 (4th Cir. 2010) (citing Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 154
(4th Cir. 2009)); see also Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (citing Edwards v.

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City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). The key difference between a Rule
12(b)(6) motion and a Rule 12(c) motion is “that on a 12(c) motion, the court is to consider the
answer as well as the complaint.” Fitchett v. Cnty. of Horry, S.C., C/A No. 4:10-cv-1648-TLWTER, 2011 WL 4435756, at *3 (D.S.C. Aug. 10, 2011) (quoting Cont’l Cleaning Serv., 1999 WL
1939249, at *1); see also A.S. Abell Co. v. Balt. Typographical Union No. 12, 338 F.2d 190, 193
(4th Cir. 1964).
IV.
A.

ANALYSIS

The Report and Recommendation
In the Report and Recommendation, the Magistrate Judge recommends granting

Defendant’s Motion as to Plaintiff’s claim for constructive fraud because he did not provide any
argument in opposition. (ECF No. 24 at 8.) As to the claim for negligent misrepresentation, the
Magistrate Judge recommends denying Defendant’s Motion because “the facts in the record are
not sufficiently developed” to allow the court to determine whether any reliance by Plaintiff on a
representation made by Defendant was justifiable. (Id. at 6–7.) To support this recommendation
and to respond to Defendant’s argument (at ECF No. 5-1 at 4–5) that the negligent
misrepresentation claim should be dismissed pursuant to Hand v. SunTrust Bank, Inc., C/A No.
6:11-cv-00501-JMC, 2012 WL 3834859 (D.S.C. Sept. 4, 2012), the Magistrate Judge observed
that the scope of Plaintiff’s injury in this case, i.e., being “‘stripped of his special state constable
commission and his class 1 police officer certification,’” was broader than the injury alleged by
the plaintiff in Hand. (ECF No. 24 at 7 (citing ECF No. 1-1 at 14 ¶¶ 13 & 15).) In this regard,
the Magistrate Judge attempted to differentiate this case from the decision in Hand.
B.

Defendant’s Objections
Defendant objects to the Report and Recommendation arguing that it is erroneous because

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there are no real substantive differences between the material allegations made in this case and
the material allegations made in Hand. (ECF No. 25 at 1.) In support of this argument,
Defendant asserts that the distinguishing allegations in this case cited by the Magistrate Judge–
“that our Plaintiff quit after he was suspended and demoted instead of being outright fired and
that as a result of the demotion out of law enforcement, Plaintiff lost his state-issued Class I Law
Enforcement certification and special constable commission”–are not distinctive from the Hand
plaintiff. (ECF No. 25 at 2 (referencing ECF No. 24 at 6–7).) Defendant further asserts that
because the State of South Carolina is the only entity that “can give Plaintiff his credentials and
commission back,” any liability as to Defendant is based solely on allegations of a wrongful
discharge. (Id. at 3.) As a result, Defendant asserts that “the holding in Hand applies and the
Magistrate Judge erred in determining that this case was distinguishable.” (Id.)
C.

The Court’s Review
1. Negligent Misrepresentation
As its Objection to the Report and Recommendation, Defendant asserts that the

Magistrate Judge erred in denying it judgment on Plaintiff’s negligent misrepresentation claim
because (1) the instant case has the same relevant allegations as Hand in that Plaintiff is
complaining about things occurring as a result of his allegedly wrongful discharge (ECF No. 25
at 3) and (2) the broader injuries used by the Magistrate Judge to deny the Motion are
inapplicable to Defendant since it cannot as a matter of law either issue a law enforcement
credential or commission a special constable. (Id. at 2–3 (citing S.C. Code §§ 23-23-40,4 23-710,5 23-7-206 (2016)).)
4

S.C. Code § 23-23-40 (2016) provides that “No law enforcement officer employed or appointed
on or after July 1, 1989, by any public law enforcement agency in this State is authorized to
enforce the laws or ordinances of this State or any political subdivision thereof unless he has
been certified as qualified by the council, except that any public law enforcement agency in this
7

In Hand, this court recognized the inherent difficulty under South Carolina law to plead a
negligent misrepresentation claim in the employment context. See Hand, 2012 WL 3834859, at
*4 (“Although there is no authority addressing the issue under South Carolina law, several other
jurisdictions have barred negligent misrepresentation claims in the employer-employee
context.”). Moreover, this court determined that the allegations presented by the Hand plaintiff
did not support her claim for negligent misrepresentation because the claim mirrored a wrongful
termination claim and should be dismissed because “[a]llowing [plaintiff] Hand to proceed on a
claim for negligent misrepresentation under the facts as pled in her Complaint and Amended
Complaint would nullify South Carolina’s employment at-will doctrine.” 2012 WL 3834859, at
*4.
In the instant matter, the Magistrate Judge attempts to distinguish Plaintiff’s allegations
from the Hand case allegations based on the existence of Plaintiff’s broader claims for
commission/certification injuries. However, after consideration of the statutory law cited by
Defendant, there does not appear to be any authoritative legal justification for the court to find

State may appoint or employ as a law enforcement officer, a person who is not certified if, within
one year after the date of employment or appointment, the person secures certification from the
council; provided, that if any public law enforcement agency employs or appoints as a law
enforcement officer a person who is not certified, the person shall not perform any of the duties
of a law enforcement officer involving the control or direction of members of the public or
exercising the power of arrest until he has successfully completed a firearms qualification
program approved by the council; and provided, further, that within three working days of
employment, the academy must be notified by a public law enforcement agency that a person has
been employed by that agency as a law enforcement officer, and within three working days of
the notice the firearms qualification program as approved by the director must be provided to the
newly hired personnel.”
5
Under S.C. Code § 23-7-10 (2016), “[t]he Governor may appoint and commission as special
State constables such persons, including employees of a contractor of the United States Atomic
Energy Commission (in this chapter hereinafter called “the Commission”), as shall be
recommended to him in writing by a duly authorized representative of the Commission.”
6
Under S.C. Code § 23-7-20, a special state constable “may be summarily removed by the
Governor upon his own initiative or at the request of the Commission or its duly authorized
representative.
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that Plaintiff’s broader claims for commission/certification injuries demonstrate an appropriate
negligent misrepresentation claim against Defendant in the employment context. As a result, the
court agrees with Defendant that Plaintiff’s allegations, including that he was “stripped of his
special state constable commission and his class 1 police officer certification,” are not enough to
distinguish this case from Hand. Accordingly, the court sustains Defendant’s Objection to the
Report and Recommendation.
2. Constructive Fraud
Plaintiff did not file any objections to the Magistrate Judge’s recommendation that
Defendant’s Motion be granted as to Plaintiff’s constructive fraud claim. Upon review, the court
adopts this recommendation on the basis that it does not contain clear error. Diamond, 416 F.3d
at 315 (“[I]n 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.’”) (citing Fed. R. Civ. P. 72 advisory committee’s note).
V.

CONCLUSION

Upon careful consideration of the parties’ arguments and for the reasons set forth above,
the court hereby ACCEPTS IN PART AND REJECTS IN PART the Magistrate Judge’s
recommendation and GRANTS Defendant Centerra Group, LLC’s Motion for Partial Judgment
on the Pleadings pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure.
(ECF No. 5.) Accordingly, the court GRANTS Defendant judgment as to Plaintiff’s claims for
constructive fraud and negligent misrepresentation.
IT IS SO ORDERED.

United States District Judge
August 18, 2017
Columbia, South Carolina
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