Opinion
C. A. 9:21-cv-455-MBS-MHC
06-04-2021
Dr. Ronald A. Nurse, PhD, Plaintiff, v. A Better Choice Case Management, LLC; Tammy Spencer; Nicholas Spencer; and Tina Timmons, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge.
Plaintiff, a former employee of Defendant A Better Choice Case Management, LLC (“ABC”), originally filed this action in Magistrate's Court for Jasper County, South Carolina, on January 7, 2021, alleging various federal and state law claims against ABC, Tammy Spencer, Nicholas Spencer, and Tina Timmons (collectively, “Defendants”). See ECF No. 1-1. Defendants removed the case to this Court on February 12, 2021, asserting that this Court has federal question jurisdiction over the action pursuant to 28 U.S.C. § 1331. ECF No. 1.
According to Defendants' Motion, Niekolass Spencer is improperly identified in the Complaint as Nicholas Spencer. ECF No. 5-1 at 1.
Presently before the Court for disposition is Defendants' Motion to Dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Motion to Dismiss”). ECF No. 5. Because Plaintiff is proceeding pro se, the Court issued an Order, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that advised Plaintiff of the motion to dismiss procedures and the possible consequences if he failed to respond adequately to Defendants' Motion. ECF No. 10. Plaintiff filed a Response in Opposition to the Motion to Dismiss, ECF No. 13, and Defendants filed a Reply, ECF No. 14. Defendants' Motion to Dismiss is ripe for review.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), D.S.C. Because Defendants' Motion to Dismiss is a dispositive motion, this Report and Recommendation is entered for review by the District Judge.
Also before the Court is Defendants' Motion for Sanctions (ECF No. 15), filed in reaction to Plaintiff's Response to the Motion to Dismiss. Plaintiff filed a Response in Opposition to the Motion for Sanctions (ECF No. 17), and Defendants filed a Reply, ECF No. 19. The Motion for Sanctions is ripe for review.
Thereafter, Plaintiff filed a Sur Reply without first seeking leave from the Court. ECF No. 21. Defendants subsequently filed a Motion to Strike the Sur Reply. ECF No. 22. Plaintiff did not file any response to Defendants' Motion to Strike. The undersigned agrees that the Sur Reply should be stricken, as “neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit the filing of a sur-reply without leave of the Court, ” and Plaintiff did not seek or receive permission to file the Sur Reply before filing the document. See Stanfield v. Charleston Cnty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, at *4 (D.S.C. Aug. 18, 2015). Accordingly, the undersigned grants Defendants' Motion to Strike (ECF No. 22) and orders the clerk to strike the Sur Reply (ECF No. 21) from the docket.
I. MOTION TO DISMISS
Defendants move, pursuant to Rule 12(b)(6) of the Federal Rules of Procedure, to dismiss Plaintiff's Complaint in its entirety for failure to state a claim upon which relief can be granted. For the reasons set forth below, the undersigned recommends that the Motion to Dismiss be granted with respect to Plaintiff's federal claim and that the remaining state law claims be remanded to state court.
The facts, and all inferences therefrom, are construed in the light most favorable to Plaintiff for purposes of ruling on Defendants' Motion. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
Plaintiff is male, African-American, and over sixty-five years old. ECF No. 1-1 at 8. He has a Ph.D in Forensic Psychology, other advanced degrees, and over thirty years of case management experience. Id. at 10.
Plaintiff began his employment with ABC on May 22, 2020. Id. at 9. According to Plaintiff, he “was contracted and assigned to provide Case Management Services to Federal and State Medicaid participants in the South Carolina, Community Long Term Care (CLTC), Case Management Program.” Id. He provided case management services to sixty-seven clients or participants in this program. Id. Plaintiff alleges that Defendants discriminated against Black and elderly program participants. Id. According to Plaintiff, he discovered many Black participants who qualified for some waiver services, but they were denied by Defendants. Id. Plaintiff also alleges that Defendants told Plaintiff that they do not tell minority clients about all the services, and that when “clients ask for services like air conditioners, Ramps, and Home Modifications, the [D]efendants lie to the Black and Hispanic clients and tell them that CLTC no longer provides those services.” Id. at 12. Plaintiff also alleges that Defendants posted false narratives and visitation documentation in the Phoenix portal, in violation of CLTC policies and procedures. Id.
Plaintiff alleges that he had a written and verbal contract with Defendants “that they would pay him $40.00 once a month per cont[r]act for each Participant”; however, Defendants actually paid Plaintiff only $25.00 per month per Participant contract. Id. at 9-10. According to Plaintiff, other case managers and employees in the CLTC program, who had less education and experience than Plaintiff, were paid between $40.00 and $72.00 per month for each contract. Id. at 10. Plaintiff alleges that when he asked Defendant Tammy Spencer, Executive Director of ABC, about his pay, she told him he is lucky he is even allowed to work in the CLTC program, as no other Black males worked as case managers in the program and “Black males are nothing, ” so she does not have to pay him. Id. at 9-10. Plaintiff alleges that Defendant Nicholas Spencer, Chief Financial Officer of ABC, made similar comments to Plaintiff, calling Plaintiff a “gangster, ” and saying, “I do not owe you anything because Black Males are nothing in America.” Id. According to Plaintiff, Mr. Spencer said that he would not pay Plaintiff what he was owed and that Plaintiff could take him to court. Id. at 10. Plaintiff alleges that he requested copies of his paystubs at least six times, but Defendants refused to give him his paystubs. Id. Plaintiff further alleges that he worked two weeks each month with no pay, and he never received vacation or sick pay. Id. at 11.
Plaintiff alleges that Defendants terminated his employment on November 18, 2020, without warning. Id. at 9. According to Plaintiff, Defendants said that they terminated him because he sent an email to coworkers regarding the coronavirus. Id. at 11. His sister had died after contracting the virus, and he sent an email to coworkers about techniques to prevent themselves from being infected. Id. Defendants allegedly told him that the email violated policy. Id. Plaintiff suggests that the real reason for the termination was his race. Id. at 12. He also alleges that he tried to file a complaint with the Equal Employment Opportunity Commission (“EEOC”), but “[b]ecause of the abundance and high volume of discrimination” complaints, “the EEOC is closed and is no longer accepting discrimination complaints.” Id. at 14.
In his Complaint, Plaintiff asserts causes of action for (1) violation of Title VI of the Civil Rights Act of 1964; (2) violation of the Age Discrimination Act of 1975; (3) violation of Plaintiff's Eighth Amendment rights under the U.S. Constitution; (4) misfeasance (5) embezzlement and fraud; (6) slander, libel, and assail under 28 U.S.C. § 4101; and (7) claims for “unfair, unethical, illegal, and unlawful business practices.” Id. at 8. He alleges that Defendants' actions caused him emotional stress and psychological trauma, and he seeks $485.00 in stolen pay, $32.00 for the cost to mail a manual, and $7,500.00 in total damages. Id. at 13-14.
B. Legal Standard
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. The court may consider a document not attached to the complaint, so long as the document “was integral to and explicitly relied on in the complaint, ” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, principles requiring generous construction of pro se complaints do “not require courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Giving liberal construction does not mean that the court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. See Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) (“Only those questions which are squarely presented to a court may properly be addressed.”). Thus, even under this less stringent standard, a pro se complaint is still subject to summary dismissal. Estelle, 429 U.S. at 106-07.
C. Discussion
In their Motion to Dismiss, Defendants argue that all of Plaintiff's claims should be dismissed, with prejudice, for failure to state a claim upon which relief can be granted. The undersigned will address Plaintiff's federal claims before turning to the state law claims.
The undersigned notes that Plaintiff's Response to Defendants' Motion does not contain any arguments disputing the points raised in Defendants' Motion. See generally ECF No. 13. Rather, Plaintiff's Response discusses the details of previous litigation that he initiated against an educational institution. As noted by Defendants in their Reply, ECF No. 14 at 5-6, where a plaintiff fails to respond to an argument raised by the defendant in a motion to dismiss, courts often treat defendant's argument as conceded. See, e.g., Campbell v. Rite Aid Corp., No. 7:13-cv-02638-BHH, 2014 WL 3868008, at *2 (D.S.C. Aug. 5, 2014) (“Plaintiff failed to respond to [Defendant's] argument regarding causes of action 1 and 2, and the Court can only assume that Plaintiff concedes the argument.”); Kissi v. Panzer, 664 F.Supp.2d 120, 123 (D.D.C. 2009) (“Because the plaintiff's opposition fails to address the defendants' arguments, the Court may treat the defendants' motion [to dismiss] as conceded.”). Nonetheless, the undersigned will review the merits of Defendants' arguments.
1. Plaintiff's Claims Under Federal Law
a. Title VI Claim
Plaintiff asserts a claim against all Defendants under Title VI of the Civil Rights Act of 1964, a statute that prohibits federally assisted programs from discriminating against a person on the basis of his race, color, or national origin. 42 U.S.C. § 2000d; see ECF No. 1-1 at 8 ¶ A. To state a claim for relief under Title VI, a plaintiff must allege facts establishing that (1) the defendant received federal financial assistance, and (2) the defendant engaged in intentional discrimination based on race, color, or national origin. See Alexander v. Sandoval, 532 U.S. 275, 280 (2001); Callum v. CVS Health Corp., 137 F.Supp.3d 817, 844 (D.S.C. 2015).
As an initial matter, the undersigned agrees with Defendants that the Title VI claim against the individual Defendants should be dismissed. “[T]he proper defendant in a Title VI case is an entity rather than an individual.” Callum, 137 F.Supp.3d at 845 (alteration in original) (quoting Farmer v. Ramsay, 41 F.Supp.2d 587, 592 (D. Md. 1999)); see 42 U.S.C. § 2000d-4a (defining “program or activity”); Anderson v. Nebraska, No. 4:17-CV-3073, 2018 WL 4354952, at *10 (D. Neb. Sept. 12, 2018) (collecting cases and explaining that courts have uniformly concluded that individual employees cannot be personally liable under Title VI because they are not the entities receiving federal assistance). Accordingly, the undersigned finds that the Title VI claims against the individual Defendants should be dismissed with prejudice.
The undersigned also agrees with Defendants that Plaintiff has failed to allege any facts showing that ABC received federal financial assistance. Although Plaintiff alleges that he was “contracted and assigned to provide Case Management Services to Federal and State Medicaid participants in the South Carolina Community Long Term Care (CLTC) Case Management Program, ” ECF No. 1-1 at 9, the mere existence of a contract between a federal contractor and the government does not constitute “federal financial assistance.” See Venkatraman v. Rei Systems, Inc., 417 F.3d 418, 421 (4th Cir. 2005) (“To the contrary, the regulations implementing Title VI, the legislative history, and cases interpreting the term all indicate that market contracts between federal contractors and the government do not constitute such ‘assistance.' Only if the government intends to provide a subsidy does Title VI apply.”). There are no factual allegations suggesting that ABC was the recipient of federal financial assistance. Because Plaintiff has failed to allege facts sufficient to state a Title VI claim, the undersigned recommends that this claim be dismissed, without prejudice, against ABC.
Because Plaintiff may be able to plead additional facts to support this claim and cure the pleading deficiency, the undersigned recommends dismissal without prejudice.
b. Claim Under the Age Discrimination Act of 1975
Plaintiff next asserts a claim under the Age Discrimination Act of 1975 (“the Act”). ECF No. 1-1 at 8 ¶ B. The Act provides that “no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 6102.
The undersigned agrees with Defendants that Plaintiff has failed to state a claim under the Act. As with his Title VI, Plaintiff has failed to allege facts showing that any Defendant receives federal financial assistance. Moreover, the individual Defendants are not subject to liability under the Act. See 42 U.S.C. § 6107(4) (defining “program or activity”); see also Steshenko v. Albee, 42 F.Supp.3d 1281, 1290 (N.D. Cal. 2014) (finding that individual employees of a “program or activity” are not proper defendants under the Act). Further, Plaintiff's Complaint seeks only monetary damages, which are not available under the Act. See Tyrrell v. City of Scranton, 134 F.Supp.2d 373, 384 (M.D. Pa. 2001) (concluding that because the Act “cannot support an action for damages, [plaintiff's] claim for damages under that statute must be dismissed”). Finally, there are no allegations in the Complaint from which to infer that Plaintiff filed his administrative remedies under the Act prior to bringing this action. See 42 U.S.C. § 6104(e)(2)(B) (providing that no civil action shall be brought “if administrative remedies have not been exhausted”); id. at § 6104(f) (“[A]dministrative remedies shall be deemed exhausted upon the expiration of 180 days from the filing of an administrative complaint during which time the Federal department or agency makes no finding with regard to the complaint, or upon the day that the Federal department or agency issues a finding in favor of the recipient of financial assistance, whichever occurs first.”); see also Brownscombe v. Dep't of Campus Parking, 203 F.Supp.2d 479, 483 (D. Md. 2002) (dismissing claim under the Act for failure to exhaust administrative remedies). Accordingly, the undersigned recommends dismissing Plaintiff's Age Discrimination Act claim against the individual Defendants, with prejudice, and against ABC, without prejudice.
c. Claim for Violation of the Eighth Amendment of the U.S. Constitution
In his Complaint, Plaintiff asserts that Defendants violated the Eighth Amendment of the U.S. Constitution's prohibition against excessive bail, excessive fines, and cruel and unusual punishment. ECF No. 1-1 at 8 ¶ C. Although the U.S. Constitution does not create a private right of action, a civil action under 42 U.S.C. § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Here, Plaintiff has failed to allege any facts from which to infer that the Defendants acted in any way attributable to the state. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1983); Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001). Therefore, Plaintiff has failed to state any claim under § 1983 against any Defendant. Accordingly, Plaintiff's claim for violation of his Eighth Amendment rights should be dismissed, without prejudice, as against all Defendants.
d. Claims Under 18 U.S.C. Chapters 31 and 47 and 28 U.S.C. § 4101
Plaintiff attempts to bring claims against all Defendants for violations of 18 U.S.C. Chapter 31 (“Embezzlement and Theft”) and Chapter 41 (“Extortion and Threats”), which are federal criminal statutes for which there is no private right of action. See ECF No. 1-1 at 8 ¶ E. Because there is no private right of action under these criminal statutes, this claim should be dismissed, with prejudice, as against all Defendants.
Plaintiff also attempts to allege a claim for a violation of 28 U.S.C. § 4101, which is the definition section under Title 28 of the U.S. Code for Judiciary and Judicial Procedure dealing with foreign judgments for defamation. See Id. at 8 ¶ F (“The defendants are charged with slander, libel, and assail” and “with violating 28 U.S. Code § 4101. Definitions”). As there does not appear to be a private right of action under § 4101, this claim should be dismissed, with prejudice, as against all Defendants.
For the foregoing reasons, the undersigned recommends that all of Plaintiff's claims alleged under federal law be dismissed.
Defendants argue that to the extent Plaintiff's Complaint can be construed as alleging claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) or under the Age Discrimination in Employment Act (“ADEA”), Plaintiff has failed to exhaust his administrative remedies. Review of the Complaint reveals that Plaintiff purposefully did not allege claims under either Title VII or the ADEA. Plaintiff mentions neither statute in his Complaint, and he expressly alleges that he was not able to file an EEOC charge before he filed this action. ECF No. 1-1 at 14. Moreover, he attaches to his Response an EEOC charge-filed after Defendants filed the pending Motion to Dismiss-in which he asserts claims under both Title VII and the ADEA. ECF No. 13-1 at 11. Accordingly, the undersigned finds that the Complaint cannot be construed as attempting to allege claims under either Title VII or the ADEA. However, the undersigned notes that if the Complaint had alleged Title VII and ADEA claim, those claims would be premature and subject to dismissal without prejudice because Plaintiff has not yet exhausted his administrative remedies. See 42 U.S.C. § 2000e-5(b), (f)(1); 29 U.S.C. § 626(d)(1); see also Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005).
2. Plaintiff's State Law Claims
If the Court dismisses Plaintiff's federal claims, then the Court must decide whether to exercise supplemental jurisdiction over Plaintiff's remaining state law claims, which include causes of action for misfeasance and for “unfair, unethical, illegal, and unlawful business practices.” See ECF No. 1-1 at 8 ¶¶ D & G. The district court has discretion to dismiss or keep a case when it has “dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367; see Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (“[T]rial courts enjoy wide latitude in determining whether . . . to retain jurisdiction over state claims when all federal claims have been extinguished.”) (citation omitted). In analyzing whether to exercise supplemental jurisdiction, courts are to consider the following factors: judicial economy, convenience, fairness, and comity. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 & n.7 (1988). District courts in the Fourth Circuit also have considered other related factors, including (1) whether the claim involves straightforward application of well-defined case law, Caughman v. S.C. Dep't of Motor Vehicles, C/A No. 3:09-503-JFA-PJG, 2010 WL 348375, at *2 (D.S.C. Jan. 26, 2010); (2) whether the parties have completed discovery, id.; (3) whether the complaint was filed in federal court, Spears v. Water & Sewage Auth. of Cabarrus Cnty., 1:15cv859, 2017 WL 2275011, at *9 (M.D. N.C. May 24, 2017); and (4) the length of time the case has been pending in federal court, de Reyes v. Waples Mobile Home Park Ltd. P'ship, 251 F.Supp.3d 1006, 1023 (E.D. Va. 2017).
Plaintiff appears to cite Washington state law in support of his misfeasance claim and California state law in support of his unlawful business practices. See ECF No. 1-1 at 8 ¶¶ D, G.
A civil action for Plaintiff's state law claims could be cognizable in this Court under the diversity jurisdiction statute, if that statue's requirements are satisfied. See 28 U.S.C. § 1332. However, this Court does not have diversity jurisdiction in this case because Plaintiff's Complaint expressly seeks no more than $7,500.00 in damages, which is merely one-tenth of the damages threshold required by the diversity statute. See id.
Here, Plaintiff originally elected to file his complaint in state court. Moreover, this case has been pending in this Court only since February 2021, and the case is still in the early stages of litigation, as the parties have not yet engaged in discovery. Accordingly, the undersigned concludes that the balance of these factors weighs in favor of remand. See Carnegie-Mellon Univ., 484 U.S. at 350 (“When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.”).
Having recommended that Plaintiff's claim over which the Court has original jurisdiction be dismissed, the undersigned further recommends that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims in this case and remand the state law claims to the state court where Plaintiff originally filed this action.
II. MOTION FOR SANCTIONS
Defendants filed a Motion for Sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. ECF No. 15. Specifically, Defendants seek the following sanctions: (1) a dismissal of this case with prejudice; (2) a pre-filing injunction barring Plaintiff from filing further actions in federal court without permissive leave from the court; (3) the reasonable attorneys' fees incurred in defending Plaintiff's frivolous lawsuit and bringing this motion; and (4) monetary sanctions to be paid by Plaintiff to the Court.
A. Legal Standard
Rule 11 of the Federal Rules of Civil Procedure requires that in all representations to the Court, “an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, ” the pleading, motion, or other paper:
(1) is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
The reasonableness of a filing party's actions under Rule 11 involves an objective inquiry. See In re Kunstler, 914 F.2d 505, 514 (4th Cir. 1990). Subsection (b)(1) focuses on the signer's intent when filing a pleading, “objectively tested, rather than the consequences of the signer's act, subjectively viewed by the signer's opponent.” Id. at 518 (quoting Zaldivar v. City of Los Angeles, 780 F.2d 823, 832 (9th Cir. 1986)). “In other words, it is not enough that the injured party subjectively believes that a lawsuit was brought to harass” him or run up his legal bills; “instead, such improper purposes must be derived from the motive of the signer in pursuing the suit.” Id. at 518-19. Thus, the “court must ignore evidence of the injured party's subjective beliefs and look for more objective evidence of the signer's purpose, ” id. at 519, measured “under an objective standard of reasonableness, ” id. at 518. “Repeated filings, the outrageous nature of claims made, or a signer's experience in a particular area of law, under which baseless claims have been made, are all appropriate indicators of an improper purpose.” Id. at 519. However, if an attorney or pro se plaintiff filed a complaint to “vindicate rights in court, and also for some other purpose, ” that person should not be subject to Rule 11 sanctions “so long as the added purpose is not undertaken in bad faith and is not so excessive as to eliminate” a “central and sincere” desire to vindicate her rights. Id. at 518.
Subsections (b)(2) and (b)(3) require “that an unrepresented party or a represented party's attorney conduct a prefiling investigation of law and fact which is objectively reasonable under the circumstances.” Harmon v. O'Keefe, 149 F.R.D. 114, 116 (E.D. Va. 1993) (citing Brubaker v. City of Richmond, 943 F.2d 1363, 1373 (4th Cir. 1991)). To be reasonable, a prefiling investigation must “uncover some information” and “some basis in law to support the claims in the complaint.” Brubaker, 943 F.2d at 1373. Legal allegations fail the requirements of Rule 11(b)(2) when there is “absolutely no chance of success under the existing precedent.” Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153 (4th Cir. 2002). In order to warrant sanctions, the legal position must be completely untenable, rather than merely unsuccessful. Id. at 151. The issue is whether a reasonable person under the same circumstances would have believed his or her actions to be legally justified. Id. at 153. “Although a legal claim may be so inartfully pled that it cannot survive a motion to dismiss, ” that error alone does not violate Rule 11-“only the lack of any legal or factual basis is sanctionable.” Id. at 153; see also In re Kunstler, 914 F.2d at 516. Moreover, pro se “litigants are entitled to consideration of their non-lawyer status, ” Weathers v. Ziko, 113 F.Supp.3d 830, 833 (M.D. N.C. 2015), in determining whether their pleadings demonstrate a reasonable effort “to understand the law at issue and to seek out facts to support their claims, ” Johnson v. Lyddane, 368 F.Supp.2d 529, 532 (E.D. Va. 2005).
If the Court determines that a litigant has violated Rule 11(b), “the court may impose an appropriate sanction.” Fed.R.Civ.P. 11(c)(1). A sanction imposed under Rule 11 “must be limited to what suffices to deter repetition of the conduct.” Id. at 11(c)(4). “The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.” Id. An order imposing sanctions “must describe the sanctioned conduct and explain the basis for the sanction.” Id. at 11(c)(6).
B. Discussion
Defendants contend that sanctions against Plaintiff are warranted under Rule 11 for the following reasons: (1) Plaintiff has filed at least five lawsuits in federal courts in Georgia against former employers, universities, and hotels alleging similar claims as those alleged in the instant lawsuit; (2) Plaintiff, in the Complaint presently before this Court, “makes a patently false allegation that he was ‘unable to file a discrimination charge with the EEOC prior to filing this lawsuit[, ] stating that he ‘tried to file an [EEOC] complaint. Because of the abundance and high volume of discrimination in the workplace complaints, the EEOC is closed and is no longer accepting discrimination complaints.'”; (3) Plaintiff's Complaint and Response in opposition to the Motion to Dismiss “contain a clear threat of violence against the Defendants” and “vile and abusive language throughout”; (4) Plaintiff's Complaint seeks criminal penalties and unreasonable damages; and (5) Plaintiff replied to an email from defense counsel by threatening to sue counsel and copying Defendants on the email. ECF No. 15 at 1-6. After careful review of the Complaint and the parties' filings and arguments, the undersigned concludes that Defendants have not demonstrated that their requested sanctions are warranted at this time.
First, Defendants have not shown that Plaintiff's Complaint violates Rule 11(b)(2) or (3). Plaintiff's Complaint alleges that he was employed by ABC, which promised to pay him $40.00 per contract but actually only paid him $25.00 per contract, and he seeks repayment of the salary he says Defendants failed to pay him. ECF No. 1-1 at 9-10; see also Id. at 15 (ABC paystub listing Plaintiff as an employee, which was attached to the Complaint). Plaintiff further alleges that ABC's other employees were paid significantly more than he was. Id. at 10. Defendants do not contend that Plaintiff's allegations lack any foundation in fact. Rather, they dispute only Plaintiff's allegation that he could not file an EEOC charge because the EEOC was closed and no longer accepting new discrimination charges. The undersigned does not find that this one allegation is a sufficient basis for finding a Rule 11(b)(3) violation or awarding sanctions, particularly where the EEOC informed defense counsel that although it has been accepting new charges of discrimination, its offices have been closed during the COVID-19 pandemic. See ECF No. 22-2. Moreover, although the undersigned recommends granting Defendants' Motion to Dismiss Plaintiff's federal claims, the undersigned does not conclude, at this early stage of the litigation, that there is a sanctionable “lack of any legal or factual basis” for Plaintiff's claims, particularly given his non-lawyer status. See Hunter, 281 F.3d at 153; Weathers, 113 F.Supp.3d at 833; Johnson, 368 F.Supp.2d at 532.
The undersigned also does not find Plaintiff's prior lawsuits to be evidence of an intent to harass Defendants. None of the Defendants in this case were named as parties to those prior lawsuits, and there is no indication that Plaintiff has ever filed suit against the instant Defendants prior to this action. Moreover, while Plaintiff filed those previous cases in federal district court in Georgia, Plaintiff filed the instant lawsuit in state magistrate's court, expressly limiting his damages request to $7,500.00. Thus, there is no indication that he intended for this litigation to be particularly costly for Defendants, such as to suggest an intent to harass. See In re Kunstler, 914 F.2d at 514. Rather, it appears that Plaintiff filed his Complaint in state magistrate's court with the central and sincere desire to “vindicate rights” through the judicial process by recouping the wages he alleges he is still owed. See Id. at 518. As such, the undersigned finds that Defendants have not demonstrated that Plaintiff filed suit for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, so as to support an award of sanctions for a violation Rule 11(b)(1). See Id. at 518-19; Fed.R.Civ.P. 11(b)(1).
Nevertheless, the undersigned must address the violent and abusive language contained in Plaintiff's Complaint and Response to the Motion to Dismiss. Pro se parties are not exempt from the Rules of Civil Procedure or from the requirements of respect and decorum before the court. District courts must “not allow liberal pleading rules and pro se practice to be a vehicle for abusive conduct.” Spears v. Warden FCI Williamsburg, 2016 WL 2935894 (D.S.C. Apr. 20, 2016), at *1. “Due to the very nature of the court as an institution, it must and does have the inherent power to impose order, respect, decorum, silence, and compliance with lawful mandates.” United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993).
See, e.g., ECF No. 1-1 at 12 (“The Defendants . . . need to be stopped because they are going to cheat and rob the wrong Black person and catch an impetuous, “Bad Decision.” They are lucky the Plaintiff is not a street thug like them . . . .”); ECF No. 13 at 3 (“Knowing of the Defendants' past issues with being conniving, vicious street people, the Jasper County Law Enforcement Lieutenant attested that he hopes he does not one day have to investigate a double homicide because the Defendants are going to cross the line on the wrong person. He said the courts need to send a message; they are going to end up like Bonnie and Clyde because it is not their first rodeo.”); id. (“He was such a punk ass . . . .”).
While Plaintiff may be frustrated and feel wronged, there is no excuse for the language Plaintiff used, and the Court will not tolerate it. Accordingly, Plaintiff is hereby advised that Rule 11 sanctions will be considered in the future by this Court any time that he submits correspondence or pleadings containing offensive, abusive, threatening, or profane language.
For the foregoing reasons, the undersigned recommends that Defendants' Motion for Rule 11 Sanctions be denied, without prejudice, at this time.
III. CONCLUSION
For the reasons set forth above, it is ORDERED that Defendants' Motion to Strike (ECF No. 22) be GRANTED and that the clerk STRIKE the Sur Reply (ECF No. 21) from the docket.
Moreover, it is RECOMMENDED that Defendants' Motion for Sanctions (ECF No. 15) be DENIED. It is further RECOMMENDED that Defendants' Motion to Dismiss (ECF No. 5) be GRANTED as to the federal claims; the Court DECLINE to exercise supplemental jurisdiction over the remaining state law claims; and the case be REMANDED to state court.
IT IS SO RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
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
Post Office Box 835
Charleston, South Carolina 29402
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).