Erby v. Webster University et al

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATION adopting 33 Report and Recommendation; granting without prejudice 17 Motion to Dismiss for Failure to State a Claim with leave to file an amended complaint within 15 days of this order. Signed by Honorable Joseph F Anderson, Jr on 10/01/2013. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Loretta Laura Erby,

C/A No.: 3:13-518-JFA-SVH
Plaintiff,

v.

ORDER

Webster University, Betsy Schmutz, Beth Russell,
David Dunlap, and Sam Cooper
Defendants.

Plaintiff Loretta Laura Erby brings the above-captioned case against her former
employer, Webster University, and Webster University employees Betsy Schmutz, Beth Russell,
David Dunlap, and Sam Cooper. In her complaint, Plaintiff asserts claims pursuant to Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) and the Family Medical
Leave Act (“FMLA”), as well as state law claims of defamation and intentional infliction of
emotional distress. This matter is before the court on Defendants’ partial1 motion to dismiss
under FED. R. CIV. P. 12(b)(6).
The Magistrate Judge assigned to this action2 has prepared a Report and
Recommendation wherein she recommends that the court grant Defendant’s partial motion to
dismiss. The Magistrate Judge further recommends that the dismissal of those claims be without
prejudice and with leave to file an amended complaint within 15 days of this order. The Report

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Defendants have not moved to dismiss the Title VII claims of hostile work environment and retaliation.
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).
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and Recommendation sets forth the relevant facts and standards of law on this matter, and the
court incorporates such without a recitation.
Plaintiff filed a “response” to the Report and Recommendation on September 26, 2013.
Instead of objecting to the Report and Recommendation, Plaintiff simply “refrain[ed] from
concurring with the Magistrate Judge” substantively, and agreed with the recommended course
of action only. 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).
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, Defendants’ partial motion to dismiss is granted
without prejudice and with leave to file an amended complaint within 15 days of this order. This
case is, therefore, remanded to the Magistrate Judge for further proceedings.
IT IS SO ORDERED.

October 1, 2013
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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