Jackson v. Smith & Downey PA et al

Filing 36

ORDER granting in part and denying in part 6 Motion to Dismiss; adopting 31 Report and Recommendation. Signed by Honorable Patrick Michael Duffy on August 6, 2018.(jmcg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Don L. Jackson,

)
)
Plaintiff,
)
)
v.
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Smith & Downey, P.A.; Douglas W.
)
Desmarais, individually and as a
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representative of Smith & Downey; and
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Infinity Support Services, Inc.,
)
)
Defendants.
)
____________________________________)

Civil Action No. 2:17-cv-3299-PMD-JDA

This matter is before the Court on Defendants’ objections to United States Magistrate Judge
Jacquelyn D. Austin’s Report and Recommendation (“R & R”) (ECF Nos. 33 & 31). For the
reasons set forth below, the Court overrules Defendants’ objections and grants in part and denies
in part Defendants’ motion to dismiss.
BACKGROUND
This action arises out of underlying litigation between Plaintiff Don L. Jackson and
Defendant Infinity Support Services, Inc. As no objection is made to the Magistrate Judge’s
recitation of the facts, and no clear error is found therein, the Court adopts that portion of the R & R
and includes the relevant portion of those facts here. Jackson alleged in the underlying case that
he was subjected to racial discrimination and harassment while employed with Infinity, and he was
terminated for reporting that discrimination. After Jackson and Infinity settled the underlying case,
their lawyers worked on drafting a settlement agreement. However, Infinity’s lawyer, Defendant
Douglas W. Desmarais, never disclosed that the Ohio Child Support Payment Central (“OCSPC”)
had contacted him and asserted a lien against the settlement payments owed to Jackson. After the

settlement agreement was finalized, Desmarais sent correspondence to Jackson’s lawyer with
copies of checks made out to OCSPC, rather than to Jackson. As a result, Jackson alleges in
relevant part that Infinity breached the settlement agreement by paying OCSPC and contends that
it is liable to him for breach of contract. Importantly, Jackson alleges that neither he nor his
attorney had notice of any lien from OCSPC or from Desmarais.
PROCEDURAL HISTORY
The Magistrate Judge filed her R & R on June 18, 2018. Defendants filed objections to
the R & R on July 2, and Jackson responded on July 16. Jackson did not file any objections of
his own to the R & R. Accordingly, this matter is ripe for consideration.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties may make written objections to
the R & R within fourteen days after being served with a copy of it. 28 U.S.C. § 636(b)(1). This
Court must conduct a de novo review of any portion of the R & R to which a specific objection is
made, and it may accept, reject, or modify the Magistrate Judge’s findings and recommendations
in whole or in part. Id. Additionally, the Court may receive more evidence or recommit the matter
to the Magistrate Judge with instructions. Id. A party’s failure to object is taken as the party’s
agreement with the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140 (1985).
Absent a timely, specific objection—or as to those portions of the R & R to which no specific
objection is made—this Court “must ‘only satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).

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DISCUSSION
Defendants only object to the R & R’s conclusion that Jackson’s breach of contract claim
against Infinity should survive their motion to dismiss. Their objection, which they also argued
before the Magistrate Judge, is based on the Magistrate Judge’s determination that Defendants
were relying on records beyond the face of the complaint in support of the motion and that
Defendants were essentially raising an affirmative defense, which is generally inappropriate at the
motion to dismiss stage. According to Defendants, Infinity cannot be liable to Jackson for breach
of contract because the settlement agreement contained a caveat that the settlement payments
Infinity owed Jackson were subject to “withholdings required by law.” Defendants contend that
OCSPC’s child support lien against Jackson constituted a withholding required by law, and that
therefore they had not breached the settlement agreement. The Court agrees with the Magistrate
Judge that this issue requires analysis of documents and facts beyond the face of the complaint
such that disposition at the motion to dismiss stage is inappropriate. Specifically, Jackson disputes
the veracity of the child support order, he contends that Defendants never provided him notice of
that order, and he further contends that even if that order were valid he would still be entitled to
some of the settlement funds. In light of the procedural posture of the case and the disputed issues,
the Court agrees with the Magistrate Judge that Jackson’s breach of contract claim against Infinity
should proceed, while his remaining claims against Defendants should be dismissed.

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CONCLUSION
For the foregoing reasons, the Court ADOPTS the R & R and GRANTS IN PART and
DENIES IN PART Defendants’ motion to dismiss.
AND IT IS SO ORDERED.

August 6, 2018
Charleston, South Carolina

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