United States District Court, W.D. North Carolina, Charlotte Division
ORDER OF DISMISSAL
COGBURN, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on review of a Memorandum
and Recommendation issued in this matter. In the Memorandum
and Recommendation, the magistrate judge advised the parties
of the right to file objections within 14 days (plus three
days for service by mail inasmuch as plaintiff is proceeding
pro se), all in accordance with 28, United States
Code, Section 636(b)(1)(c). Objections have been filed within
the time allowed.
Federal Magistrates Act of 1979, as amended,
provides that “a district court shall make a de
novo determination of those portions of the report or
specific proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1);
Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983).
However, “when objections to strictly legal issues are
raised and no factual issues are challenged, de novo
review of the record may be dispensed with.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982).
Similarly, de novo review is not required by the
statute “when a party makes general or conclusory
objections that do not direct the court to a specific error
in the magistrate judge's proposed findings and
recommendations.” Id. Moreover, the statute
does not on its face require any review at all of issues that
are not the subject of an objection. Thomas v. Arn,
474 U.S. 140, 149 (1985); Camby v. Davis, 718 F.2d
at 200. Nonetheless, a district judge is responsible for the
final determination and outcome of the case, and accordingly
the Court has conducted a careful review of the magistrate
Court has given careful consideration to each Objection and
conducted a de novo review as warranted.
proceeding pro se, has filed documents entitled
“Objections to Order Dated Febraury [sic.] 12,
2018' (#11) and “Reply to Defendants'
[sic.] Limited Partial Objection to Courts'
[sic.] Memorandum and Recommendation and
Order” (#15). Defendant has filed a Response in
Opposition to Plaintiff's Objections to Order Dated
February 12, 2018” (#13). Defendant has also filed its
own “Limited Partial Objection to the Court's
Memorandum and Recommendation and Order” (#12).
Court is mindful of the latitude extended to the pleadings of
pro se litigants. Haines v. Kerner, 404 U.S. 519,
520 (1972) (courts should “[c]onstru[e] [a pro se]
petitioner's inartful pleading liberally”).
However, courts cannot act as the pro se plaintiff's
advocate or develop claims which the plaintiff failed to
raise clearly on the face of his complaint. Gordon v.
Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (recognizing
that district courts are not expected to assume the role of
advocate for the pro se plaintiff).
first to plaintiff's Objections, plaintiff first contends
that the magistrate judge lacked authority to “conduct
civil proceedings and order entry of judgment” without
the consent of the parties. Plaintiff is simply wrong as to
the jurisdiction of magistrate judges, who are specifically
authorized to preside over civil proceedings and enter orders
on non-dispositive issues and recommendations on dispositive
motions. 28 U.S.C. 636(b). While plaintiff is correct that a
magistrate judge cannot enter judgment in a civil matter
without the consent of the parties, 28 U.S.C. § 636(c),
the magistrate judge has not entered a judgment in this case,
but recommended that the undersigned dismiss his federal
claims, as permitted under § 636(b)(1)(B). This
objection is overruled.
second objection appears to be to Judge Cayer's
determination that federal question removal to this Court was
appropriate. Plaintiff contends that this Court lacks
jurisdiction to determine whether he has stated claims
because those claims should be heard in state court.
Plaintiff cites to the “violation of public policy
requirement” under the NCEEPA as the reason this Court
lacks jurisdiction to resolve his federal claims. While it is
also unlawful under state law to discriminate against
employees, and there may well have been ways to craft a
complaint that avoided federal law, the removal in this case
was occasioned by plaintiff's inclusion in his complaint
of two federal causes of action, to wit, causes of action
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., and the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. This
Court has original jurisdiction over those federal claims and
defendant had an absolute right to remove those claims to
this Court. The fact that plaintiff has also brought a claim
under the NCEEPA, and other state law claims, in no manner
impairs defendant's right to remove. Finally, review of
the docket reveals that defendant timely removed the state
action to this Court. Plaintiff's Objection to Judge
Cayer's finding that this action was properly removed is
no objection is made to Judge Cayer's substantive
finding, to wit, that there is no viable claim for
supervisory liability under Title VII, the ADEA, or the
NCEEPA, this Court fully concurs. Supervisors are not liable
in their individual capacities under Title VII. Lissau v.
Southern Food Serv., Inc., 159 F.3d 177, 180 (4th Cir.
1998). There is no individual liability under the ADEA.
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510
(4th Cir. 1994). Likewise, North Carolina does not recognize
a claim against a supervisor sued in an individual capacity
for wrongful discharge in violation of public policy. Cox
v. Indian Head Industries, Inc., 187 F.R.D. 531, 536
(W.D. N.C. 1999).
the Court has considered defendant's objection to Judge
Cayer's recommendation that this Court decline to
exercise supplemental jurisdiction and remand those claims to
state court. Judge Cayer explained that declining
supplemental jurisdiction where all federal claims have been
dismissed is consistent with the general principle that
federal jurisdiction is limited. Chesapeake Ranch Water
Co. v. Board of Comm'rs of Calvert County, 401 F.3d
274, 277 (4th Cir. 2005) (having dismissed federal claims,
district court properly declined supplemental jurisdiction of
state claims). Defendant argues that judicial economy
suggests that this Court should exercise supplemental
jurisdiction, consider its Motion to Dismiss as to
plaintiff's remaining state law claims, and dismiss those
claims. Defendant argues that remanding the remaining claims
to state court would require additional expense for the
individual defendant and possibly require him to defend
against these charges in state and federal court
simultaneously. He also cites related litigation filed by
plaintiff which remains pending in this Court, to wit,
Parker v. Curtis Wright Corp.,
3:17cv639-MOC-DCK. It appearing that Judge Cayer was likely
unaware of the pendency of the second Parker case
because it was assigned to another magistrate judge, the
Court will now exercise its discretion and take up the
remainder of the motion as to the remaining supplemental
claims even though Judge Cayer's recommendation is fully
consistent with case law.
determining whether a claim can survive a motion under Rule
12(b)(6), the Supreme Court held in Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007) that the “no set
of facts” standard only describes the “breadth of
opportunity to prove what an adequate complaint claims, not
the minimum adequate pleading to govern a complaint's
survival.” Id. at 563. The Court specifically
rejected use of the “no set of facts” standard
because such standard would improperly allow a “wholly
conclusory statement of claim” to “survive a
motion to dismiss whenever the pleadings left open the
possibility that a plaintiff might later establish some
‘set of [undisclosed] facts' to support
recovery.” Id. at 561 (alteration ...