Lisotto v. New Prime Inc

Filing 27

ORDER RULING ON REPORT AND RECOMMENDATION granting 6 Motion to Dismiss without prejudice filed by New Prime Inc, accepting in substantial part 21 Report and Recommendation. Signed by Honorable Mary G Lewis on 8/28/14. (alew, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
John D. Lisotto,

) Civil Action No.: 3:13-2407-MGL
)
Plaintiff, )
)
vs.
)
ORDER
)
)
New Prime, Inc., d/b/a Prime Inc.,
)
)
Defendant. )
_________________________________ )
On September 5, 2013, Plaintiff John D. Lisotto (“Plaintiff”) filed this action against New
Prime, Inc. (“Defendant”) pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et
seq. (“ADA”) (ECF No. 1). On October 7, 2013, Defendant moved to dismiss pursuant to Rule
12(b) of the Federal Rules of Civil Procedure. (ECF No. 6). Plaintiff filed a Response in Opposition
on November 25, 2013, (ECF No. 12), and Defendant filed a Reply on December 5, 2013. (ECF No.
13).
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was
referred to United States Magistrate Judge Paige J. Gossett for pretrial handling. On July 22, 2014,
the Magistrate Judge prepared a Report and Recommendation (“Report”), (ECF No. 21),
recommending that Defendant’s Motion to Dismiss be granted and that the Complaint be dismissed.
The Magistrate Judge’s Report did not offer a recommendation as to whether the ultimate dismissal
of the matter should be with or without prejudice.1 Plaintiff filed an Objection to the Report on

1

The Magistrate Judge did separately provide in Footnote 2 of the Report that Plaintiff’s then-pending
Motion to Amend, (ECF No. 14), be denied without prejudice so as to afford Plaintiff an opportunity to pursue
proposed additional claims in state court. It must be emphasized that this conclusion is a separate Order of the
Magistrate Judge that stands apart from the Magistrate Judge’s Report and Recommendation on Defendant’s Motion
to Dismiss, a dispositive motion that is subject to automatic review by this Court.

August 1, 2014. (ECF No. 22). Defendant filed its own Objection on August 8, 2014. (ECF No.
23 ). In addition, both parties filed responses to their opponents’ objections. (ECF Nos. 24 and 25).
The matter is now ripe for decision.
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.
See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). In 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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
In light of the standards set forth above, the Court has reviewed, de novo, the Report, the
Defendant’s Objection and, in particular, the Plaintiff’s Objection, in which Plaintiff objects, chiefly,
to the Magistrate Judge’s determination that the administrative procedures set out in 49 C.F.R. §
391.47 were applicable to Plaintiff’s pursuit and denial of DOT medical clearance and,
consequentially, that Plaintiff was required to exhaust those procedures prior to bringing this ADA
action. (ECF No. 22). Plaintiff maintains that the circumstances by which he was denied
employment with Defendant on the basis of amphetamine use and/or a putative narcolepsy condition
do not fall within the“conflict of medical evaluations” scenario contemplated by 49 C.F.R. §
391.47. Id.

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The Court has carefully reviewed the Magistrate Judge’s analysis of this key question and
agrees with the determination of the Magistrate Judge that the circumstances outlined in Plaintiff’s
Complaint fall within the range of scenarios contemplated by the language of the governing
regulation. According to the language of § 391.47(b)(2), the conflict of medical evaluations scenario
arises whenever there is a “disagreement” between the “physician for the driver” and the “physician
for the motor carrier” about the driver’s “qualifications.” Here, as the Magistrate Judge sets out, it
is undisputed that a “disagreement” arose between Plaintiff’s doctor and at least one of Defendant’s
doctors regarding Plaintiff’s qualifications to serve as a company driver, in light of Plaintiff’s
amphetamine use and/or putative narcolepsy condition. (ECF No. 21 at p. 5) See also ECF No. 1
at ¶¶s 16-20, 22-27.
In crediting the Magistrate Judge’s analysis and overruling the Defendant’s Objection on this
ground, the Court is particularly persuaded by the Magistrate Judge’s reliance on Harris v. P.A.M.
Transport, Inc., in which the Court of Appeals for the Eight Circuit rejected the argument of the
plaintiff-driver that DOT administrative procedures did not apply to his situation merely because
the relevant medical conflict was not between a single, personal physician for the driver and a single,
in-house physician for the employer–the most basic scenario contemplated by the language of
§ 391.47(b)(2)–but rather was between a third party contractor’s physician and the employer’s inhouse physician. 339 F.3d 635, 639 (8th Circuit 2003).
Indeed, the Court looks to the reasoning of Harris more broadly in arriving at its conclusion
that exhaustion of administrative procedures was properly required on these facts. As the Harris
court noted: “The DOT is charged with and is much better equipped to handle resolution of disputes
over a driver’s medical qualifications and can do so far more expertly and efficiently than a

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reviewing court.” 339 F.3d at 638. In the instant case, a controversy arose as to whether Plaintiff,
an individual who at very least at one time suffered from a diagnosed medical disorder whose
treatment included the proscribing of amphetamines, was nonetheless medically qualified to work
as a commercial truck driver. The Court agrees with the reasoning of the Harris court that the DOT
is the body best equipped to pass upon a controversy of this sort, at least in the first instance. See
also Campbell v. Federal Exp. Corp., 918 F.Supp. 912, 919 (D. MD. 1996) (“The doctrine of
primary jurisdiction also persuades this Court that...DOT should have an opportunity to decide
whether the applicable DOT regulations were correctly interpreted and applied.”).
Based upon the foregoing, the Court accepts in substantial part the Report of the Magistrate
Judge, (ECF No. 21), adopting the Magistrate Judge’s recommendation that Defendant’s Motion to
Dismiss be granted on the basis that Plaintiff failed to exhaust the administrative procedures outlined
at 49 C.F.R. § 391.47 prior to bringing this litigation and that this failure is not excusable on any
legal basis including futility or lack of an adequate remedy. Defendant’s Rule 12(b)(6) Motion to
Dismiss, (ECF No. 6), is therefore GRANTED on this basis.
In light of this conclusion, the Court need not reach the Magistrate Judge’s alternative
recommendation that Defendant’s motion be granted on the basis that Plaintiff cannot as a matter
of law meet a required element of his claim. This decision in no way reflects the Court’s view as
to the correctness of that recommendation.
Finally, although the Court grants dismissal in this case, the Court is not prepared on the
record before it and, especially, in view of the rationales supporting the exhaustion requirement in
the first instance, to award Defendant a dismissal with prejudice. Plaintiff’s Complaint is therefore
DISMISSED without prejudice to re-file if and when the questions related to Plaintiff’s physical

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qualifications are first passed upon pursuant to the administrative procedures set out at 49 C.F.R.
§ 391.47(b)(2).

IT IS SO ORDERED.
s/Mary G. Lewis
United States District Judge

Spartanburg, South Carolina
August 28, 2014

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