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Ferrell v. FMR, LLC

United States District Court, E.D. North Carolina, Western Division

April 12, 2019

FMR, LLC, Defendant.



         This matter is before the court on defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (DE 24). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate Judge Robert B. Jones, Jr., entered memorandum and recommendation (“M&R”), (DE 30), wherein it is recommended that the court grant the motion and dismiss plaintiff's claims. Plaintiff filed objections to the M&R, and defendant responded. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the M&R, except as set forth herein, and dismisses plaintiff's claims without prejudice.


         The court incorporates herein by reference the background of this case set forth in the M&R, while summarizing below key procedural facts as pertinent to the court's discussion herein. In plaintiff's amended complaint, plaintiff asserts employment discrimination claims against defendant, his former employer, for (1) age discrimination based upon termination, (2) age discrimination based upon failure to rehire, and (3) retaliation for unspecified conduct, in violation of the Age Discrimination in Employment Act (“ADEA”). Plaintiff seeks back pay, reinstatement, punitive damages, jury trial, and such other relief as may be appropriate.

         Defendant seeks dismissal of plaintiff's claims of failure to rehire and retaliation, for lack of subject matter jurisdiction under Rule 12(b)(1), because plaintiff fails to include any allegations related to these claims in his Equal Employment Opportunity Commission (“EEOC”) charge of discrimination. In support of dismissal, defendant relies upon plaintiff's EEOC charge. Defendant seeks dismissal of plaintiff's termination claim for failure to state a claim under Rule 12(b)(6), because plaintiff failed to file his EEOC charge within 180 days of the date plaintiff was notified of his termination. In opposition to the motion to dismiss, plaintiff relies upon his declaration.

         The M&R recommends dismissal without prejudice of plaintiff's claims of failure to rehire and retaliation, and it recommends dismissal with prejudice of plaintiff's termination claim, on the grounds asserted by defendant. Plaintiff filed objections on February 11, 2019. Defendant responded on February 20, 2019.


         A. Standard of Review

         The district court reviews de novo those portions of the M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for “clear error, ” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. When a defendant challenges the factual predicate of subject matter jurisdiction, a court “is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

         “To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[, ] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         B. Analysis

         In his objections, plaintiff challenges the determination in the M&R that plaintiff's termination claim is time barred and not subject to equitable tolling. The M&R cogently addressed the deficiencies in plaintiff's termination claim. Accordingly, upon de novo review, the court adopts the analysis in the M&R as to the basis for dismissal of this claim.[1] The court writes separately to address the arguments ...

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