Perrine v. G4S Secure Solutions USA Inc
ORDER adopting 12 Report and Recommendations of Magistrate Judge Bristow Marchant. Defendant's motion 7 to dismiss for failure to state a claim must be GRANTED with respect to the Fifth Cause of Action. Moreover, Plain tiff has consented to the dismissal of his First, Third and Fourth Causes of Action and, therefore, Plaintiffs Second Cause of Action asserting a claim under the Family and Medical Leave Act, 29 U.S.C. § 2601, et. seq., will be the only cause of action remaining in this case. Signed by Honorable Richard M Gergel on 8/9/2011.(cwhi, )
IN THE UNITED STATES DISTRICT COURT,,~
FOR THE DISTRICT OF SOUTH CAROLINA
G4S Secure Solutions (USA), Inc.
2011 AUG - g p 12: ~ 5
CIA 2: 11-1210-RMG
This action has been filed by the Plaintiff asserting claims of discrimination and breach of
contract against the Defendant, his former employer. The Defendant filed a motion to dismiss
pursuant to Rule 12, Fed.R.Civ.P. on June 21, 2011, asserting that Plaintiff had failed to exhaust
his administrative remedies with respect to any claims being asserted under the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101, et. seq., and that Plaintiff had failed to state a claim
with respect to breach of contract. Plaintiff filed a memorandum in opposition to the Defendant's
motion on July 8, 2011, in which he agrees to the dismissal of his First, Third and Fourth Causes
of Action, which include his claims asserted under the ADA. However, Plaintiff contests
dismissal of his cause of action for beach of contract (Fifth Cause of Action).
Accordingly, before the Court is Defendant's motion to dismiss the Fifth Cause of Action
in Plaintiffs Complaint alleging breach of contract. (Dkt. No.7). In accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2)(e), DSC, this matter was referred to United States
Magistrate Judge Bristow Marchant for pre-trial proceedings and a Report and Recommendation.
On July 20, 2011, the Magistrate Judge issued a Report recommending that Defendant's motion
to dismiss for failure to state a claim be granted. (Dkt. No. 12). The Magistrate Judge advised
Petitioner of the procedures and requirements for filing objections to the Report and
Recommendation and the serious consequences if they failed to do so.
Plaintiff has failed to
object to the Report. As explained herein, this Court has reviewed the Record for any errors of
law and agrees with the Magistrate Judge's Report and adopts it as the Order of this Court.
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and responsibility for making a final determination remains with this
Court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549,46 LEd.2d 483 (1976). This
Court is charged with making a de novo determination of those portions of the Report and
Recommendation to which specific objection is made, and this Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(I). This Court may also "receive further evidence or recommit the matter to the
magistrate with instructions." Id.
In the absence of specific objections to the Report and
Recommendation, this Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
After reviewing the record of this matter for any errors of law, the applicable law, and the
Report and Recommendation of the Magistrate Judge, the Court agrees with the conclusions of
the Magistrate Judge. Here, Plaintiff has not set forth sufficient factual allegations to establish a
plausible claim for breach of contract. When considering a Rule 12 motion to dismiss, the
motion can be granted only if Plaintiff has failed to set forth sufficient factual matters to state a
plausible claim for relief "on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Further,
in regards to employment, there is a presumption in South Carolina that employees are at-will,
and in order to survive a Rule 12 motion to dismiss on a claim for breach of contract of
employment, a Plaintiff must "plead sufficient factual allegations to establish the existence of an
employment contract beyond the at-will relationship ...." Amason v. P.K. Management, LLC,
No. 10-1752,2011 WL 1100169, at *6 (D.S.C. Mar. 23,2011); See also Prescott v. Farmer's
Tel. Co-Op., Inc. 516 S.E.2d 923, 927, n.8 (S.C. 1999) (In South Carolina, "there is a
presumption of at-will employment"). In this case, Plaintiff has only alleged in very general and
conclusory terms that he and Defendant "entered into a contract" of employment in which
Defendant breached. Plaintiff has failed to set forth sufficient factual allegations to establish a
plausible claim for breach of contract and that an employment contract beyond the at-will
While the Court is aware that an employer can alter an employee's at-will status through
mandatory language in an employer's handbook or policy manual; cf Grant v. Mount Vernon
Mills, Inc., 634 S.E.2d 15,20 (S.C.CLApp. 2006); Plaintiff has failed to plead such claim in the
allegations of his Complaint. See Dickson v. Microsoft Corp., 309 F.3d 193,213 (4th Cir. 2002)
(Plaintiff has burden of alleging facts sufficient to state all the elements of a claim).
Thus, the Defendant is entitled to dismissal of this action due to Plaintiffs failure to
plead sufficient factual allegations that establish the existence of an employment contract beyond
the at-will relationship. Amason, 2011 1100169 at *6; See also Bell Atlantic v. Twombly, 550
U.S. 554, 555 (2007) ("While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, ... [fJactual allegations must be enough to raise a right to
relief above the speculative level").
Accordingly, the Court adopts the Report and Recommendation by reference in this
Order. (Dkt. No. 12). Therefore, having thoroughly considered the parties' written submissions
in light ofthe standard set forth in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), Defendant's motion
to dismiss for failure to state a claim must be GRANTED with respect to the Fifth Cause of
Action. Moreover, Plaintiff has consented to the dismissal of his First, Third and Fourth Causes
of Action and, therefore, Plaintiffs Second Cause of Action asserting a claim under the Family
and Medical Leave Act, 29 U.S.C. § 2601, et. seq., will be the only cause of action remaining in
AND IT IS SO ORDERED.
United States District Court Judge
Charleston, South Carolina
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