Arora et al v. James et al

Filing 117

ORDER AND REPORT AND RECOMMENDATION denies 75 Motion to Stay, and recommends terminating 79 Motion to Dismiss as moot. Signed by Magistrate Judge Paige J Gossett on 3/24/2015. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Naresh C. Arora; Sudha Arora,

)
)
Plaintiffs,
)
)
v.
)
)
Captain James; Regional Medical Center of
)
Orangeburg; Denmark Technical College, an )
agency of State of South Carolina, a
)
governmental entity; Chief Wilbur Wallace;
)
Donald Williams; Joann Boyd-Scotland;
)
Ambrish Lavania, individually at their personal )
capacity and as agents and employees for
)
Denmark Technical College; Does 1-100,
)
)
Defendants.
)
_____________________________________ )

C/A No. 5:14-18-JMC-PJG

ORDER AND
REPORT AND RECOMMENDATION

Plaintiffs Naresh C. Arora (“Mr. Arora”) and Sudha Arora, self-represented litigants, filed
this action alleging a violation of the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et
seq., as well as other federal and state claims. This matter is before the court pursuant to 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the motion
to dismiss filed by Defendants Denmark Technical College, Chief Wilbur Wallace, Donald
Williams, Joann Boyd-Scotland, and Ambrish Lavania (collectively, “the Denmark Technical
College Defendants”). (ECF No. 79.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), the court advised Plaintiffs of the summary judgment and dismissal procedures and the
possible consequences if they failed to respond adequately to the defendants’ motion. (ECF No. 81.)
Mr. Arora filed a response in opposition to the motion (ECF No. 87) and the defendants replied (ECF

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No. 89). Also before the court is Mr. Arora’s motion to stay (ECF No. 75), to which all represented
defendants responded (ECF Nos. 78 & 80) and Mr. Arora replied (ECF Nos. 84 & 85).
The court initially construed the Complaint as purporting to assert several violations of
Plaintiffs’ rights, including but not limited to claims of discrimination under Title VII against
Defendants Lavania, Boyd-Scotland, and Denmark Technical College. (ECF No. 33.) Subsequently,
Mr. Arora filed a motion to stay attesting that he has not received a right-to-sue letter from the Equal
Employment Opportunity Commission (“EEOC”) in connection with his complaint of unlawful
discrimination and, therefore, any claim under Title VII is premature. (ECF No. 75.) The Denmark
Technical College Defendants filed a motion to dismiss any Title VII claim1 against them, correctly
arguing that “[b]efore filing suit under Title VII, a plaintiff must exhaust [his] administrative
remedies by bringing a charge with the EEOC.” Smith v. First Union Nat’l Bank, 202 F.3d 234, 247
(4th Cir. 2000); see also 42 U.S.C. § 2000e-5(f)(1). Exhaustion of administrative remedies is a
statutory prerequisite to properly invoke the jurisdiction of the federal court. See, e.g., Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (stating that “a failure by the plaintiff to
exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject
matter jurisdiction over the claim”); Davis v. N.C. Dep’t of Corr., 48 F.3d 134, 140 (4th Cir. 1995)
(stating that “that receipt of, or at least entitlement to, a right-to-sue letter is a jurisdictional
prerequisite”); see also 42 U.S.C. § 2000e-5(f). Further, Mr. Arora cannot pursue any claim pursuant
to Title VII against the individual defendants, as such claims are precluded by the decision of the
United States Court of Appeals for the Fourth Circuit in Lissau v. Southern Food Service, Inc., 159

1

To the extent that Mr. Arora’s response in opposition construes this motion as seeking to
dismiss the entire case, the court notes that the motion only address any Title VII claim.
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F.3d 177 (4th Cir. 1998), which held that Title VII does not provide for individual liability. Id. at
180. Additional filings by Mr. Arora state that a Title VII claim “has not yet been asserted in the
complaint.” (See, e.g., ECF No. 84 at 3; see also ECF No. 84 at 5.)
RECOMMENDATION
Based on the foregoing, the court finds that all parties appear to agree that a Title VII claim
has not been raised at this time in this case. Therefore, the court recommends terminating the
Denmark Technical College Defendants’ motion to dismiss (ECF No. 79) as moot.2
ORDER
With regard to the motion to stay this case until Mr. Arora receives a right-to-sue letter,3 the
court observes that this matter contains numerous claims that are ready for adjudication. The court
declines to stay the case to await the possibility of Mr. Arora’s seeking to amend the Complaint to
add a Title VII claim and notes that this case was originally filed over a year ago. Therefore,
considering all of the above, it is hereby
ORDERED that Mr. Arora’s motion to stay (ECF No. 75) is denied. The court observes that
Plaintiffs’ responses to the outstanding motions for summary judgment (ECF Nos. 95 & 103) are
currently due on March 30, 2015 and April 2, 2015. Mr. Arora appears to argue that he cannot

2

In light of this recommendation, the court need not address any of Mr. Arora’s arguments
alleging that this motion was not served on him and seeking to strike the motion and for other relief.
However, the court notes for the record that the Denmark Technical College Defendants filed
identical documents for both ECF No. 78 and ECF No. 79 but named them differently on the court’s
electronic filing docket only. Mr. Arora does not appear to dispute that he received ECF No. 78,
which is listed in the electronic filing docket as “RESPONSE in Opposition re 75 MOTION to Stay
re 68 Scheduling Order” but is in fact also the pleading filed as the motion to dismiss (ECF No. 79).
3

Mr. Arora also argues that the case should be stayed until the district judge ruled on a thenpending Report and Recommendation (ECF No. 63). However, that recommendation has since been
accepted by the district court. (ECF No. 112).
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respond to these motions, in part because of his pending motion to stay. That motion is now
resolved; however, the court will extend Plaintiffs’ response deadline to both of these motions to
April 17, 2015.
IT IS SO ORDERED.

____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE

March 24, 2015
Columbia, South Carolina
The parties’ attention is directed to the important notice on the next page.

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Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and
Recommendation with the District Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made and the basis for such objections. “[I]n
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 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
Specific written objections must be filed within fourteen (14) days of the date of service of
this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P.
6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by
mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation
will result in waiver of the right to appeal from a judgment of the District Court based upon
such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

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