Swann v. Akorn, Inc

Filing 37

OPINION AND ORDER adopting the 32 Report and Recommendation, granting the Defendants' 23 25 motions for judgment on the pleadings as to Plaintiff's wrongful termination in violation of public policy claim, and dismissing that claim with prejudice. Signed by Honorable Cameron McGowan Currie on 3/8/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Michael J. Swann,

C/A. No. 3:16-2724-CMC-PJG

Plaintiff
v.
Akorn, Inc.; Interpace Diagnostics Group, Inc.,

Opinion and Order
Adopting Report and Recommendation
and Granting Motions for
Judgment on the Pleadings

Defendants.

This matter is before the court on Defendants’ motions for judgment on the pleadings on
Plaintiff’s claim for wrongful termination in violation of public policy. ECF Nos. 23, 25. The
wrongful termination claim, along with other claims not challenged at this time, arise out of
Plaintiff Michael Swann’s (“Swann”) employment relationship with Akorn, Inc. (“Akorn”) and
Interpace Diagnostics Group, Inc. (“Interpace”) (collectively “Defendants”). For the reasons set
forth below, the motions are granted and the wrongful termination in violation of public policy
claim against both Defendants is dismissed.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(g), DSC, this
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings.
After Defendants’ motions were filed, the Magistrate Judge entered two orders directing Plaintiff
to advise the court whether he wished to continue with his wrongful termination in violation of
public policy cause of action against either Defendant and, if so, to respond to the motions within
seven days of the dates of the orders. ECF Nos. 26, 29. Plaintiff was further advised that failure
to respond would cause the court to decide the motions on the record presented in Defendants’

motions, or the court may dismiss with prejudice for failure to prosecute. Id. Plaintiff filed no
response to either of the court’s orders.
On February 15, 2017, the Magistrate Judge issued a Report and Recommendation
(“Report”) recommending Defendants’ motions for judgment on the pleadings be granted. ECF
No. 32. The Magistrate Judge advised the parties of the procedures and requirements for filing
objections to the Report and the serious consequences if they failed to do so. No party filed
objections to the Report, and the time to do so has expired. This matter is now ripe for resolution.
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 Matthews 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). The court reviews the Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“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.”) (citation omitted).
After reviewing the record of this matter, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court agrees with the conclusions of the Magistrate
Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by
reference in this Order. Defendants’ motions for judgment on the pleadings as to Plaintiff’s

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wrongful termination in violation of public policy claim (ECF Nos. 23, 25) are granted, and the
claim is dismissed with prejudice.1
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 8, 2017

1

“Dismissal with prejudice is warranted only when a trial court determines that the allegation of
other facts consistent with the challenged pleading could not possibly cure the deficiency.” Belizan
v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76 F.3d 1205,
1209 (D.C. Cir. 1996). That is the case here as to the cause of action challenged.
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