Opinion
C/A No. 6:18-cv-2337-DCC-KDW
01-28-2019
Teresa Busha, Plaintiff, v. South Carolina Department of Mental Health, Defendant.
REPORT AND RECOMMENDATION
This employment-related matter is before the court for issuance of a Report and Recommendation ("Report") pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Pending is the Motion to Dismiss filed by South Carolina Department of Mental Health ("SCDMH" or "Defendant"). ECF No. 4. Having considered Defendant's Motion and Memorandum; Plaintiff's opposition, ECF No. 9; Defendant's Reply, ECF No. 10; and applicable law, the undersigned recommends Defendant's Motion to Dismiss be denied. I. Factual and procedural background
A. Plaintiff's pending actions
1. Busha I
Plaintiff, Teresa Busha, has two cases pending before the court, both of which relate to her employment with Defendant. Plaintiff's first action, Busha v. SCDMH, C.A. No. 6:17-571-DCC, ("Busha I"), was removed to this court on March 1, 2017. ECF No. 1 in Busha I. In ruling on Defendant's Motion for Judgment on the Pleadings in that matter, the court dismissed Plaintiff's claims other than those for allegedly retaliatory acts in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. as applied through 28 C.F.R. Part 35 Section 504 ("Rehabilitation Act"), which took place on or after January 26, 2016. See ECF Nos. 35 and 29 in Busha I (Order adopting Report and Recommendation (R&R) that granted in part and denied in part Defendant's Motion for Judgment on the Pleadings). The alleged retaliatory acts at issue in Busha I took place in 2016. Upon the close of discovery in Busha I, Defendant filed a Motion for Summary Judgment in which it seeks dismissal of the only claims pending in that case (Rehabilitation Act retaliation claims that took place on or after January 26, 2016). ECF No. 70 in Busha I (filed July 27, 2018). On January 24, 2019, the undersigned filed an R&R recommending Defendant's Motion for Summary Judgment be granted. ECF No. 83 in Busha I. Please see that R&R for further detail concerning Busha I.
Defendant's notations that the acts under consideration in Busha I were retaliation claims that occurred on or after January 26, 2017, see ECF No. 4-1 at 2, appear to be scrivener's errors.
2. Busha II
Plaintiff filed the instant action, "Busha II," in the Court of Common Pleas for Greenville County on August 3, 2018. Defendant removed Plaintiff's Complaint to this court on August 22, 2018. ECF Nos. 1, 1-1. Plaintiff's only cause of action in Busha II is for disability discrimination and retaliation under the Rehabilitation Act—specifically, her claim focuses on her termination, an adverse action that was not before the court in Busha I. Compl. ¶¶ 15-20. On August 28, 2018, Defendant filed the Motion to Dismiss now under consideration, arguing Busha II should be dismissed as untimely or because it is "contrary to the interests of judicial economy and efficiency, and prejudicial to SCDMH." Def. Mem. 1.
Taken from the Complaint and accepted as true for purposes of this Report, Plaintiff alleges the following facts potentially relevant to deciding Defendant's pending Motion to Dismiss:
Plaintiff was employed by SCDMH for approximately six years as a Human Services Specialist I ("HSSI"). Compl. ¶ 4. Plaintiff outlines alleged disabilities, injuries, and requests for accommodation from 2015, and notes her January 2017 filing of Busha I. See Compl. ¶¶ 5-11.
Plaintiff alleges that on June 16, 2017 she needed to leave work early, and "Defendant's agents demanded that her sick leave request be contemporaneously accompanied by a doctor's excuse." Compl. ¶ 12. Three days later, "as a result of the intensified scrutiny, severe discrimination and retaliation Plaintiff was experiencing at the hands of Defendant's agents, Plaintiff made her first ever medication error[.]" Id. "Allegedly as a result thereof," Plaintiff avers:
[O]n June 26, 2017, Defendant notified Plaintiff that it intended to terminate Plaintiff's employment for this first offense error, subject to a meeting with Defendant's Center Director, Joe James.Compl. ¶ 12. Plaintiff continues:
Despite Plaintiff meeting with Mr. James' designee and proving how Plaintiff was never trained on the medication policy and how she was being treated differently, singled out, discriminated against and retaliated against, Defendant then terminated Plaintiff's employment on August 4, 2017, which was received by Plaintiff on August 8, 2017.Compl. ¶ 13. Plaintiff indicates she has "exhausted all administrative remedies required relating to the termination of her employment by Defendant." Compl. ¶ 14. II. Legal standard
Defendant seeks Rule 12(b)(6) dismissal of Plaintiff's Rehabilitation Act claim of discrimination and retaliation, alleging it was not timely brought or that it should be dismissed in the interest of judicial economy and fairness. A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When ruling on a motion to dismiss, the court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the court need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). The court need not accept legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), or "legal conclusions drawn from the facts." Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009) (internal quotation omitted).
Typically, "a defense based on the statute of limitations must be raised by the defendant through an affirmative defense, see Fed. R. Civ. P. 8(c), and the burden of establishing the affirmative defense rests on the defendant." Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc). Courts generally do not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses" through a Rule 12(b)(6) motion. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). However, "in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense 'clearly appear [] on the face of the complaint.'" Goodman, 494 F.3d at 464 (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993) (emphasis added in Goodman); accord Pressley v. Tupperware Long Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009). "A defendant's statute of limitations affirmative defense can be raised in a 12(b)(6) motion to [dismiss]; however, it is seldom appropriate to do so." El Hadidi v. Intracoastal Land Sales, Inc., No. 4:12-CV-00535-RBH, 2013 WL 625575, at *2 (D.S.C. Feb. 20, 2013).
Even so, although the usual rule is that a court "may not consider any documents that are outside of the complaint, or not expressly incorporated therein," Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), a court may properly consider documents "attached or incorporated into the complaint," as well as documents attached to the defendant's motion, "so long as they are integral to the complaint and authentic." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). To be "integral," a document must be one "that by its 'very existence, and not the mere information it contains, gives rise to the legal rights asserted.'" Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original); see also New Beckley Mining Corp. v. UMWA, 18 F.3d 1161, 1164 (4th Cir. 1994) (holding district court did not err in relying on document that plaintiff referred to in its complaint to justify cause of action); Bowie v. Univ. of Md. Med. Sys., No. CIV.A. ELH-14-03216, 2015 WL 1499465, at *6 (D. Md. Mar. 31, 2015) (granting Rule 12(b)(6) dismissal of plaintiff's ADA claim as time-barred and considering the EEOC Charge and Right to Sue Letter as being "integral" to the decision). Further, statements by counsel that raise new facts constitute matters beyond the pleadings and cannot be considered on a Rule 12(b)(6) motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 449 (4th Cir. 2011). Additional statements by counsel that may not be considered include not only those of the pleader's counsel but also statements of defense counsel who is seeking dismissal. Id. (citing Dolgaleva v. Va. Beach City Pub. Sch., 364 F. App'x 820, 825 (4th Cir. 2010), in which district court erroneously dismissed complaint based on defendant's statements in hearing that disputed complaint's allegations). III. Analysis
A. Timeliness
As noted by Defendant and not disputed by Plaintiff, a claim under the Rehabilitation Act must be brought within one year after the violation occurred. See ECF No. 35 in Busha I at 4 (Order granting in part and denying in part motion for judgment on the pleadings; citing Levin v. S.C. Dept. of Health & Human Servs., C/A No. 3:12-cv-0007-JFA, 2015 WL 1186370 at *5 (D.S.C. Mar. 16, 2015)). In considering whether a cause of action has "accrued" for purposes of the limitations period, the court looks to "when the plaintiff knows or has reason to know of the injury which is the base of the action." A Soc'y Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (cited in Busha I R&R in considering plaintiff's argument that a continuing-violation theory applied to her Rehabilitation Act claims then before the court). In considering "discrete" discriminatory or retaliatory acts such as "termination, failure to promote, denial of transfer, or refusal to hire[,]" the United States Supreme Court finds such acts are considered to have "occurred" the day they "happened." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114 (2002) (in Title VII context; as cited and quoted in Busha I R&R at 8-9). The question here, then, is when Plaintiff's termination claim "accrued" or "happened."
1. Defendant's argument
Defendant claims entitlement to Rule 12 dismissal of Plaintiff's Rehabilitation Act claims based on her termination because the Complaint was filed outside of the applicable one-year statute of limitations. Defendant argues it "notified Plaintiff of her termination on June 26, 2017, and she was terminated on August 4, 2017." Def. Mem. 3 (citing Compl. ¶¶ 12-13). Accordingly, Defendant submits, Plaintiff's August 3, 2018 Complaint in this action was untimely because it was filed "over a year after she received notice of her termination." Id.
In support, Defendant makes the following legal argument:
The statute of limitations begins to run on the date an employee is notified of a pending discharge, not on her last day of employment. See Irani v. Palmetto Health, 3:14-cv-3577-CMC, 2016 WL 3079466, * 21 (D.S.C. Jun 1, 2016) (citing Hutson v. Wells Dairy, Inc., 578 F.3d 823, 826 (8th Cir. 2009) ("filing period began to run when plaintiff was notified of her termination by her supervisor, not when she actually stopped work or received a letter stating the reasons for her termination"). The operative date for purposes of the statute of limitations is the time the adverse employment decision was made and communicated to Plaintiff. Martin v. Clemson Univ., 654 F. Supp. 2d 410, 432 (D.S.C. 2009) (holding that when "a single discriminatory decision is taken, communicated, and later enforced despite pleas to relent-the time starts with the initial decision") (quoting Lever v. Northwestern Univ., 979 F.2d 552 (7th Cir. 1992); see also Delaware State College v. Ricks, 449 U.S. 250 (1980) (holding that the "alleged discrimination occurs—and the filing limitations periods therefore commences—at the time the [adverse employment] decision was made and communicated to [the plaintiff]").Def. Mem. 4. Citing to paragraph 12 of Plaintiff's Complaint, Defendant submits that it "made the decision to terminate Plaintiff's employment and communicated that decision to Plaintiff on June 26, 2017." Id.
2. Plaintiff's response
In response, Plaintiff argues that Defendant's statute-of-limitations challenge has been prematurely raised as a Rule 12(b)(6) motion, submitting that such a defense "does not exist on the face of [her] complaint." Pl. Mem. 4. Plaintiff also attempts to distinguish the Irani decision on which Defendant relied based on factual distinctions and because Irani was decided at the summary-judgment stage. Pl. Mem. 4. In Irani, Plaintiff notes, the date on which the statute of limitations began to run was on the date "'[Irani] was informed of the full [Graduate Medical Education Committee's (GMEC's)] decision to dismiss him from'" the USC School of Medicine program. Id. (quoting Irani, 2016 WL 3079466, at *21 (emphases added by Plaintiff). Plaintiff noted that, in Irani, that decision of the full board had been provided "after several months of counseling, remediation efforts, and a full grievance process." Id. In addition to arguing the motion to dismiss should be denied because untimeliness was not clear from the face of the Complaint itself, Plaintiff attaches several documents to support her position that Defendant's termination decision was not final until August 4, 2017. Pl. Mem. 2, 5; see ECF Nos. 9-1 through -3. That alternative argument is noted below.
3. Defendant's reply
On Reply, Defendant again cites to the Complaint itself as supporting its timeliness defense. Reply 1-3. Defendant does not reference the attachments provided by Plaintiff. Defendant acknowledges the Irani decision was issued at the summary-judgment stage, but notes the other cases on which Defendant relies—Martin and Ricks—were decided at the motion-to-dismiss stage and were not discussed by Plaintiff. Reply 2-3.
4. Discussion
Having considered the parties' arguments and cases cited therein, the undersigned agrees with Plaintiff that Defendant's Motion to Dismiss based on the statute-of-limitations defense should be denied at this juncture. While Defendants' references to and quotes from Irani, Martin, and Ricks are correct as far as they go, those cases turn on their own specific facts and are not squarely applicable to the issue currently before the court. Irani was considered on summary judgment, after the parties had completed discovery. Importantly, in Irani Judge Currie noted that the date she determined the statute of limitations began to run was the same date the "GMEC voted to dismiss Irani from the program" as well as the date on which Irani "was informed of the decision, and its immediate effectiveness[.]" 2016 WL 3079466, at *21 n.4 (noting defendants' uncontroverted evidence to that effect). By contrast, the later date that Irani had argued that his claim accrued was the date he was informed of the decision by one of the defendant's chief executive officers to uphold "the termination at the final step in the grievance process." Id. at *21.
In Martin, decided on a motion to dismiss, the complained-of adverse action was plaintiff's denial of tenure, which took place in April 2005. Martin, 654 F. Supp. 2d at 421 (citing to Pl. Am. Compl). That decision mentions no factual argument that the April 2005 date she was denied tenure was in any manner contingent or less-than-final. See id. at 432 (noting plaintiff "was denied tenure in April 2005," initiated internal grievance proceedings in May 2005," and received final ruling on her grievance appeal in May 2007). The court found the statute began to run when Plaintiff was denied tenure, not in March 2007, when her employer issued its final ruling on her grievance appeal. Id.
In Ricks, the Court found the limitations period commenced on June 26, 1974, the date "when the tenure decision was made and [plaintiff] was notified." Ricks, 449 U.S. at 259. The court explained that a tenure committee had recommended in February 1973 that Ricks not receive tenure; however, the committee agreed to reconsider that decision the following year. Id. at 252. On reconsideration in February 1974, the committee adhered to its recommendation. The College Board of Trustees formally voted to deny tenure on March 13, 1974. Id. Ricks immediately filed a grievance with the grievance committee, which held a hearing in May 1974 and took the matter under submission. Meanwhile, the College continued to plan for Ricks' termination. In keeping with its policy, on June 26, 1974, the Trustees sent Ricks a letter advising him it had officially endorsed the recommendation that he not be given tenure. Id. at 253 n.2 (full text of June 26, 1974 letter found at n.2; the Court's decision does not include any discussion of how the letter became part of the record in considering the motion to dismiss). The Trustees further advised Ricks it would offer him a one-year "terminal" contract that would expire June 30, 1975. Ricks signed the contract. On September 12, 1974, the Trustees advised Ricks that it had denied his grievance. Id. at 253-54. In that case, the employment issue was the loss of tenure, making the date Ricks was notified of the tenure decision the date on which the statute began running. The Court rejected Ricks' argument that the statute began to run on a later date—the date on which a term-specific contract of employment was entered into because of the loss-of-tenure decision. The Court found that it was the denial of tenure that was the allegedly unlawful act and that the contract itself was not the relevant employment issue. Id. at 259-60. The Court also rejected the argument that the relevant date should be when Ricks' grievance of the tenure decision had been finally decided, noting that the "pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the statute of limitations." Id. at 261.
Here, looking only to the Complaint, "on June 26, 2017, Defendant notified Plaintiff that it intended to terminate Plaintiff's employment [], subject to a meeting with Defendant's Center Director, Joe James." Compl. ¶ 12. After Plaintiff met with James' designee, "Defendant then terminated Plaintiff's employment on August 4, 2017, which was received by Plaintiff on August 8, 2017." Id. ¶ 13. The alleged wrongful employment action about which Plaintiff complains is her August 2017 termination. It is simply not clear on the face of the Complaint that the June 2017 notification to Plaintiff that Defendant "intended to terminate" her "subject to a meeting" with the Center Director was the actionable employment action on which Plaintiff's Complaint hinges.
Further, while Defendant is correct that both Martin and Ricks were decided on motions to dismiss, review of those decisions does not indicate any party objected to deciding the issue based on the pleadings or about the nature of what had actually transpired on what date. The law on which Defendant relies discusses how decisions are considered final when they are rendered, and not later, when an employer refuses to "undo" that decision. See Martin, 654 F. Supp. 2d at 432. This begs the question of when the decision to terminate Plaintiff was actually "taken and communicated." See id. Martin notes that Ricks held that "adverse decision on appeals do not re-start the time for filing a charge . . . ." Martin, 654 F. Supp. 2d at 432 (citing Ricks). Here, though, based on the face of Plaintiff's Complaint, it is far from clear whether her "meeting with Defendant's Center Director, Joe James"—to which Defendant's June 26, 2017-communicated "intent to terminate" was "subject"—would be considered a part of some "appellate" process or whether, more like in Irani, the meeting with James would be considered to have taken place before the final termination decision was to be made, communicated, and made effective.
Here, the better course of action would be to deny Defendant's Motion to Dismiss as being premature as it is not apparent from the face of Plaintiff's Complaint that it is untimely. See El Hadidi v. Intracoastal Land Sales, Inc., No. 4:12-CV-00535-RBH, 2013 WL 625575, at *3 (D.S.C. Feb. 20, 2013) (denying motion to dismiss on statute of limitations grounds when plaintiff "makes no allegation of fact in his complaint that would make it clear to the Court when he allegedly discovered he had such claims"; finding limitations issue could be raised on summary judgment "if appropriate"). It is recommended that the portion of Defendant's Motion that seeks dismissal on statute of limitations grounds be denied.
Alternatively, the district judge may find it appropriate to consider the exhibits proffered by Plaintiff in making a decision as to timeliness. Defendant does not object to or otherwise reference any of these documents in its Reply. Arguably, these documents could be considered to be integral to her Complaint because they concern matters pleaded as to when she was advised of the intention to terminate and the final decision. A court may properly consider documents "attached or incorporated into the complaint," as well as documents attached to the defendant's motion, "so long as they are integral to the complaint and authentic." Philips, 572 F.3d at 180.
Plaintiff has proffered the following in support of her argument that the Complaint was timely filed:
June 26, 2017 Letter, ECF No. 9-1: The June 26, 2017 letter, labeled a "Notice of Intent to Terminate," explained to Plaintiff why Defendant intended to terminate her employment but noted: "Before my final decision, you have the opportunity, at your request to meet with Mr. Joe E. James, Center Director (or his Designee) and me if you wish to say anything on your behalf." ECF No. 9-1 (June 26, 2017 letter from Patricia E. Williams to Plaintiff). Plaintiff was advised she needed to request such a conference, if desired, in writing and within two working days of her receipt of the letter. Id. at 2 (emphasis added).
June 28, 2017 Salary Verification Document, ECF No. 9-2 at 3: This Verification, signed by a Benefits Manager with South Carolina Retirements Systems indicates Plaintiff works with Piedmont Center for Mental Health Services and certifies Plaintiff's "current status" to be "Actively employed and earning compensation." Id.
August 4, 2017 Letter, ECF No. 9-3: In the August 4, 2017 letter, Defendant, through Williams, provided a "Notice of Termination," which stated,
This letter is to serve you with our decision to terminate your employment with the SC Department of Mental Health—Piedmont Center for Mental Health Services, effective August 4, 2017[.]
* * *
On June 26, 2017, you were given a Notice of Intent to Terminate for [above-described] violations and prior to a final decision being made concerning your employment, you were given the opportunity to request a pre-termination conference. On July 25, 2017, you attended your scheduled pre-termination conference with Mr. Jeffrey Ham, Community Mental Health Service Liaison Coordinator. As a result of that meeting, the decision to terminate you has been upheld.
ECF No. 9-3 at 1 (emphases added).
If considered, the undersigned is of the opinion that these letters support Plaintiff's argument that the date her claim accrued was the date she was advised of the "final decision" for her to be terminated, August 4, 2017. Similar to Irani, August 4, 2017 was the date she was "served with" the "final decision to terminate" her and the date it became effective. See ECF No. 9-3. Accordingly, should the district judge choose to consider the documents proffered by Plaintiff, denial of the motion to dismiss on statute-of-limitations grounds would also be warranted based on a finding that the Complaint was timely filed.
B. Judicial economy
Defendant also seeks dismissal of this matter "in the interest of judicial economy and efficiency." Def. Mem. 4. Submitting that both Busha I and II "arise out of the same facts (Plaintiff's employment)" and include the same parties, Defendant provides a timeline of events in Busha I, see Def. Mem. 1-3, and argues that Plaintiff should have moved to file an amended pleading in Busha I because she received notice of termination months before the December 4, 2017 scheduling-order deadline for filing motions to amend pleadings in Busha I. Def. Mem. 5. Defendant also notes that discovery had just begun in Busha I. Defendant's equity-based argument, simply stated, is that Plaintiff should have moved to amend Busha I to include the allegations found in Busha II because she was aware of those allegations prior to the amendment deadline in Busha I. In support, Defendant cites case law aptly noting the importance of deadlines in discovery orders; however, Defendant cites no legal authority suggesting that Plaintiff was required to bring her termination claim in Busha I.
In response, Plaintiff notes that any addition to the Busha I Complaint would have been a supplemental complaint, not an amended one. Pl. Mem. 5. Accordingly, she submits, the deadline for amending pleadings in the Busha I scheduling order was not directly applicable to the claims she has chosen to bring separately in Busha II. Id. On reply, Defendant again notes judicial economy concerns and submits that Plaintiff's argument "turns the Federal Rules of Civil Procedure on their head." Reply 3 & n.2 (citing Poly-Med, Inc. v. Novus Sci. PTE Ltd., No. 8:15-CV-01964-JMC, 2017 WL 2874715, at *3 (D.S.C. July 6, 2017)). Defendant highlights language in Poly-Med noting the judicial economy that can be gained by filing supplemental complaints pursuant to Federal Rule of Civil Procedure 15(d) rather than filing new actions for claims that occur subsequent to the filing of original complaints.
While judicial economy might have been better served by Plaintiff's submitting a supplemental pleading in Busha I upon her 2017 termination, the undersigned must agree with Plaintiff that such supplementation was not required by the scheduling order in Busha I. As Judge Childs noted in Poly-Med, "[b]ecause a supplemental claim is not an 'amendment,' it is not governed by the standards set forth in Rule 16(b) for amendments filed after a scheduling order deadline." 2017 WL 2874715, at *4 (discussing this point in a different context). Further, Defendant has pointed to no legal authority suggesting that Plaintiff was required to supplement Busha I rather than file a new action, nor is the undersigned aware of any such authority under the facts of this case.
Accordingly, given the preference for considering cases on their merits, it is recommended that this portion of Defendant's Motion to Dismiss be denied, as well. IV. Conclusion and recommendation
For the reasons set forth above, it is recommended that Defendant's Motion to Dismiss, ECF No. 4, be denied.
IT IS SO RECOMMENDED. January 28, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge