Opinion
Civil Action No. 2:18-02574-RMG-MGB
09-02-2020
Robert Baker, Plaintiff, v. The Boeing Company, Defendant.
ORDER AND REPORT AND RECOMMENDATION
Plaintiff filed this action alleging failure to accommodate under the Americans with Disabilities Act ("ADA") and later amended his complaint to include wrongful discharge and retaliation under the ADA, and state-law breach of contract claims. This matter is before the Court upon Defendant's Partial Motion to Dismiss (Dkt. No. 152) and Defendant's Motion to Strike (Dkt. No. 153). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that Defendant's Partial Motion to Dismiss (Dkt. No. 152) be granted in part and denied in part, and that Plaintiff's state-law breach of contract claims be dismissed. The undersigned also orders that Defendant's Motion to Strike (Dkt. No. 153) be granted in part and denied in part.
FACTUAL SUMMARY
This action arises from Plaintiff's employment with Defendant from 2012 to 2018. (Dkt. No. 14 at 4-6; Dkt. No. 135 at 2-3.) During this time, Plaintiff performed various engineering-related jobs, including as a composite fabrication quality systems specialist and as a final assembly and delivery employee. (Dkt. No. 135 at 2-3.) Plaintiff states that he has an imbalance disability (peripheral neuropathy) which posed no issues in his job as a composite fabrication quality systems specialist, but precluded him from doing the manual labor required as a final assembly and delivery employee. (Id. at 2.) Plaintiff contends that he requested a reasonable accommodation on account of his disability in June 2015 and that Defendant failed to properly accommodate him under the ADA and its own internal policies. (Id. at 2-3.) Plaintiff further alleges that Defendant discriminated and/or retaliated against him on account of his disability by demoting him and requiring him to take a leave of absence that led to his termination. (See generally Dkt. No. 135.) Accordingly, Plaintiff brings three causes of action under the ADA (wrongful termination, failure to accommodate, and retaliation) and three breach of contract claims under South Carolina state law (with respect to Defendant's internal reasonable accommodation, reassignment and affirmative action policy, anti-retaliation policy, and progressive discipline policy). (Dkt. No. 135 at 62-67.)
PROCEDURAL HISTORY
Plaintiff filed his initial complaint against Defendant on September 18, 2018, alleging failure to accommodate under the ADA. (Dkt. No. 1.) On December 11, 2018, Plaintiff filed an amended complaint to add wrongful termination and retaliation claims. (Dkt. No. 14.) On April 26, 2020, Plaintiff filed a motion to further amend his complaint, seeking to add state law breach of contract claims. (Dkt. No. 93.) On June 3, 2020, the undersigned recommended that Plaintiff's motion to amend be denied. (Dkt. No. 98.) Plaintiff filed an appeal of the undersigned's decision on June 17, 2020. (Dkt. No. 103.) His appeal was granted by U.S. District Judge, the Honorable Richard Mark Gergel, on July 16, 2020. (Dkt. No. 127.) Plaintiff was instructed to file his Second Amended Complaint within five days and the matter was referred back to the undersigned for further pre-trial proceedings. (Dkt. No. 129.)
Plaintiff filed his Second Amended Complaint on July 21, 2020. (Dkt. No. 135.) Defendant then filed its answer to Plaintiff's Second Amended Complaint, its partial motion to dismiss, and its motion to strike on August 4, 2020. (Dkt. No. 152; Dkt. No. 153; Dkt. No. 154.) Plaintiff filed his responses in opposition to Defendant's motions on August 13, 2020. (Dkt. No. 159; Dkt. No. 161.) Defendant filed its replies to Plaintiff's responses in opposition on August 17, 2020. (Dkt. No. 164; Dkt. No. 165.) As such, the motions before the Court have been fully briefed and are ripe for disposition.
DISCUSSION
I. Defendant's Partial Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(6), a "complaint must be dismissed if it does not allege 'enough facts to state a claim to relief that is plausible on its face.'" Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are 'enough to raise a right to relief above the speculative level.'" Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). "A plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must "take all of the factual allegations in the complaint as true." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party." Stansbury v. McDonald's Corp., 36 F. App'x 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the "legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
a. ADA Claims
i. Exhaustion and Equitable Tolling
The ADA prohibits an employer from discriminating against employees on account of a disability. See 42 U.S.C. § 12112(a). Before filing suit in court, however, the ADA requires that a plaintiff exhaust his administrative remedies by filing a charge of discrimination with the EEOC. See Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012). A Plaintiff must file this charge with the EEOC within 300 days of the adverse employment action, and must file suit in court within ninety days of receiving a right-to-sue letter from the EEOC. 42 U.S.C. §§ 2000e-5(e)(1), (f)(1).
Here, Plaintiff attached his EEOC charge as an exhibit to his First Amended Complaint. (Dkt. No. 14-3.) Upon review of this EEOC charge, it appears that Plaintiff filed the charge on August 17, 2017 and checked only the "disability" box as a basis for Defendant's alleged discrimination. (Id.) As such, Defendant asserts that Plaintiff's retaliation claim should be dismissed because "Plaintiff asserted a single claim of disability discrimination for alleged failure to accommodate" and that any ADA claims premised on events that occurred before October 21, 2016 (which is 300 days before August 17, 2017), should be dismissed with prejudice as a result of the 300 day look-back period. (Dkt. No. 152 at 8, 17.) On the other hand, Plaintiff argues that the Court should liberally construe his EEOC complaint and that his ADA claims should be equitably tolled. (Dkt. No. 159 at 9-12.)
Filing "a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in a federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). "[A] motion to dismiss that is filed under Federal Rule of Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred." Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). A motion to dismiss may resolve the merits of a defense that a plaintiff's claim is time-barred only in the "rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint." Id. Courts have observed that "because equitable tolling may depend on matters outside the pleadings, 'it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss (where review is limited to the complaint) if equitable tolling is at issue.'" Reese v. Bank, No. 3:16-cv-3491-JFA-PJG, 2017 WL 9275213, at *2 (D.S.C. Aug. 29, 2017), adopted, No. 3:16-cv-3491-JFA, 2017 WL 5589573 (D.S.C. Nov. 21, 2017) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006)).
Plaintiff argues that equitable tolling is appropriate here because Defendant actively misled him as to his rights under the ADA and continually "stonewalled" him during the reassignment process. (Dkt. No. 159 at 11-12.) More specifically, Plaintiff alleges that Defendant "misled Plaintiff as to his rights to a reassignment review, his entitlement to consideration for all vacant positions, and that 'undue hardship' to Baker had to be considered prior to putting him on [a leave of absence]." (Id. at 11.) Plaintiff also states that he reasonably, but mistakenly, relied on the "bona fides and competence of Boeing employees" and that "[h]ad [he] known those facts actively concealed from him by Boeing during the period from June 2015 through October 21, 2016, he would have filed his charges earlier." (Id.)
As such, the issue of whether equitable tolling applies in this case depends on matters outside the pleadings. Equitable tolling is available in "those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (internal quotation marks and citation omitted). Plaintiff asserts that he is entitled to equitable tolling based on Defendant's stonewalling and deception. (Dkt. No. 159 at 11-12.) If Defendant deceived Plaintiff or withheld pertinent information from him, equitable tolling may be appropriate; however, the Court cannot determine the validity of these allegations based solely on the pleadings. Because Plaintiff's retaliation, failure to accommodate, and disability discrimination claims all relate, at least in part, to events occurring before October 12, 2016, the Court recommends that Defendant's motion to dismiss Plaintiff's retaliation, failure to accommodate, and disability discrimination claims be denied without prejudice to Defendant's ability to raise these issues in a motion for summary judgment at the appropriate time. See Reese, 2017 WL 5589573, at *3 (denying Rule 12 timeliness challenge to employment matter, noting issues of an affirmative defense and reliance on equitable tolling generally should not be considered without a fully developed record); see also Yoo v. BMW Mfg. Co., LLC, No. 7:17-cv-03499-TMC, 2019 WL 1416882, at *5 (D.S.C. Mar. 29, 2019) (denying motion to dismiss workers-compensation retaliation claim as untimely because face of complaint insufficient to establish the affirmative defense or that plaintiff was not entitled to equitable tolling).
Similarly, the Court finds it premature to dismiss Plaintiff's ADA retaliation claim for failure to exhaust his administrative remedies. In his response to Defendant's motion to dismiss, Plaintiff asks the Court to consider that Plaintiff's EEOC charge describes his understanding of his claims at the time he filed them and that he did not have access to many critical documents at that time. (Dkt. No. 159 at 7-8.) See Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir.1988) (explaining that EEOC charges must be construed with utmost liberality because they often are not completed by lawyers). He also notes that his EEOC charge states that Defendant did not give him a reason for demoting and failing to reassign him. (Dkt. No. 14-3.) Given Plaintiff's allegations that Defendant misled him throughout the reassignment process and his assertions that Defendant retaliated against him for seeking reassignment, the Court declines to dismiss Plaintiff's ADA retaliation claim before fully developing the merits of this claim. See Sydnor, 681 F.3d at 594 (explaining that a plaintiff may advance claims in a subsequent civil suit if those claims could have been "expected to follow from a reasonable administrative investigation"); see also Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (recognizing "that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims he is suffering").
b. State-law Breach of Contract Claims
Defendant next asks the Court to dismiss Plaintiff's state-law breach of contract claims, arguing that Plaintiff has failed to set forth facts sufficient to demonstrate that Plaintiff had the requisite contractual relationship with Defendant. (Dkt. No. 152 at 17-18.) As a threshold matter, Plaintiff must show that he entered into a contract with Defendant in order to establish a valid breach of contract claim. The elements required to establish a contract are an offer, acceptance, and valuable consideration. Roberts v. Gaskins, 327 S.C. 478, 486 S.E.2d 771, 773 (1997) (citing Carolina Amusement Co., Inc. v. Connecticut Nat'l Life Ins., Co., 313 S.C. 215, 437 S.E.2d 122 (1993)). In the employment context, "[f]or a contract to be created, the employee must be aware of promises . . . , must have relied on (and continued work in reliance on) those promises, and the promises must restrict the right to discharge." Lawrence v. Westinghouse Savannah River Co., Inc., No. 1:03-cv-484-27, 2005 WL 3968031, at *14 (D.S.C. Mar. 31, 2005); see also Storms v. Goodyear Tire & Rubber Co., 775 F. Supp. 862, 867 (D.S.C. 1991) (finding language in the agreement insufficient to form a contract when it is "not couched in mandatory terms and does not contain language that specifically limits the employer's right to demote or terminate [plaintiff] without cause").
In South Carolina, there is a presumption of at-will employment. Prescott v. Farmer's Tel. Co-Op., Inc., 335 S.C. 330, 516 S.E.2d 923, 927, n.8 (1999). Thus, "in order to survive a Rule 12 motion to dismiss on a claim for breach of contract of employment, a [p]laintiff must 'plead sufficient factual allegations to establish the existence of an employment contract beyond the at-will relationship.'" Perrine v. G4S Secure Solutions (USA), Inc., No. 2:11-cv-1210-RMG, 2011 WL 3563110, at *1 (D.S.C. Aug. 9, 2011) (quoting Amason v. P.K. Management, LLC, No. 3:10-cv-1752-JFA, 2011 WL 1100169, at *6 (D.S.C. Mar. 23, 2011)). In other words, a complaint for breach of contract of employment must "set forth sufficient factual allegations . . . to state a facially plausible claim that the [p]arties entered into a contract with terms of employment that limited the duration of the relationship or the right of termination or both." Weaver v. John Lucas Tree Expert Co., No. 2:13-cv-01698-PMD, 2013 WL 5587854, at *6 (D.S.C. Oct. 10, 2013).
Here, Plaintiff has made several breach of contract claims based on Defendant's employment policies. (Dkt. No. 135 at 64-69.) In doing so, Plaintiff argues that Defendant breached contractual duties under its internal retaliation, reassignment, reasonable accommodation, anti-discrimination, and progressive discipline policies. (Id.) Plaintiff asserts that Defendant's policies overcome the presumption of at-will employment because they contain definitive, mandatory language and no conspicuous disclaimer. (Dkt. No. 159 at 12-23.)
However, Plaintiff repeatedly states that he did not know of these policies until long after he began working for Defendant. (See generally Dkt. No. 135; Dkt. No. 159.) As noted above, an employment contract requires that "the employee must be aware of promises . . . , must have relied on (and continued work in reliance on) those promises, and the promises must restrict the right to discharge." Lawrence, 2005 WL 3968031, at *14. By Plaintiff's own admission, he was not aware of the policies at issue until after his employment with Boeing had ended. (Dkt. No. 135 at 15-18.) In turn, Plaintiff could not have relied on these policies when accepting his employment and therefore could not have entered into an employment contract with Defendant.
To the extent Plaintiff alleges that he established a unilateral contract with Defendant, Plaintiff still cannot overcome the presumption of at-will employment based on the facts provided. The elements of a unilateral contract are: (1) specific offer; (2) communication of that offer to the employee; and (3) performance of employment-related duties in reliance on the offer. Monroe v. Brawo USA, Inc., No. 6:19-cv-2268-HMH-KFM, 2019 WL 5790826, at *2 (D.S.C. Oct. 9, 2019), adopted, No. 6:19-cv-2268-HMH, 2019 WL 5784989 (D.S.C. Nov. 6, 2019). Because Plaintiff has repeatedly stated that he did not know of the policies at issue here until long after he performed his employment-related duties, he could not have relied on Defendant's policies when performing those duties and, therefore, could not have entered into a unilateral contract with Defendant.
Ultimately, Plaintiff has not alleged facts sufficient to overcome the presumption of at-will employment and, in turn, has failed to state a valid breach of contract claim that can withstand a Rule 12(b)(6) motion. Perrine, 2011 WL 3563110, at *1 (quoting Amason, 2011 WL 1100169, at *6) (stating that a [p]laintiff must "plead sufficient factual allegations to establish the existence of an employment contract beyond the at-will relationship" to survive a Rule 12 motion to dismiss on a claim for breach of contract of employment). As such, the Court recommends Plaintiff's state-law breach of contract claims be dismissed.
Because the undersigned recommends that Plaintiff's breach of contract claims should be dismissed on their merits, the undersigned declines to address the parties' arguments relating to the timeliness of Plaintiff's breach of contract claims.
II. Defendant's Motion to Strike
Defendant has filed a motion to strike several sections of Plaintiff's Second Amended Complaint and its corresponding exhibits, arguing that the complaint and exhibits contain "extensive narrative portions, which include impermissible commentary, impertinent and immaterial allegations, and scandalous matters." (Dkt. No. 153 at 2.) Along with its motion, Defendant provided the Court with a redlined version of the Second Amended Complaint demonstrating the portions of the complaint Defendant seeks to strike. (Dkt. No. 153-1.) Plaintiff opposes the motion to strike, describing it as a "misguided attempt by Defendant to step in and draft Plaintiff's Second Amended Complaint." (Dkt. No. 161 at 3.) The undersigned generally agrees that Defendant is attempting to redraft the complaint and orders that Defendant's motion be granted in part and denied in part for the reasons set forth below.
Rule 12(f) permits the Court to strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "'Immaterial' matter is that which has no essential or important relationship to the claim for relief, and 'impertinent' material consists of statements that do not pertain to, and are not necessary to resolve, the disputed issues." CTH 1 Caregiver v. Owens, 2012 WL 2572044, at *5 (D.S.C. July 2, 2012) (internal citations omitted). "'Scandalous' includes allegations that cast a cruelly derogatory light on a party to other persons." Id. "The granting of a motion to strike scandalous matter is aimed, in part, at avoiding prejudice to a party by preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety inasmuch as, once filed, pleadings generally are public documents and become generally available." See id. (referencing Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011)).
Although the decision of whether to grant a motion to strike under Rule 12(f) is within the sound discretion of the court, the Fourth Circuit views Rule 12(f) motions with disfavor "because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic." Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001); see also Commodity Futures Trading Comm'n v. Dupont, No. 8:16-cv-03258-TMC-JDA, 2017 WL 4465700, at *2 (D.S.C. Sept. 7, 2017), adopted, No. 8:16-cv-03258-TMC, 2017 WL 4418673 (D.S.C. Oct. 5, 2017). Thus, the Court should generally deny a Rule 12(f) motion "unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action." See Rosendall v. Voight, No. 4:17-cv-0821-BHH-TER, 2017 WL 9674476, at *4 (D.S.C. Sept. 11, 2017) (referencing Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011)).
a. Newspaper Articles and References Thereto
First, Defendant requests that the newspaper articles attached to Plaintiff's complaint and the references to those articles throughout the complaint be stricken as immaterial and scandalous. (Dkt. No. 164 at 2-3.) Plaintiff argues that these articles, and the references to them, help to establish whether Plaintiff's concerns regarding on-the-job training were reasonable and in good faith. (Dkt. No. 161 at 5.) The Court agrees that the articles included as exhibits to Plaintiff's Second Amended Complaint as attachment 1 and attachment 2 relate to Plaintiff's on-the-job training concerns and, therefore, his retaliation claim. (Dkt. No. 135; Dkt. No. 135-1; Dkt. No. 135-2.) In addition, the articles relate to Defendant's work environment and culture. As such, those articles and the references to those articles throughout the Second Amended Complaint have a logical connection to Plaintiff's claims. In turn, the Court disagrees with Defendant that these articles are included with Plaintiff's complaint "only to improperly sensationalize Plaintiff's case and cast Boeing, and its executives, in a negative light." (Dkt. No. 164 at 3.)
However, the Court does not see how the article included with Plaintiff's Second Amended Complaint as attachment 3 has any relation to Plaintiff's claims. (Dkt. No. 135-3.) This article describes only that Defendant fired its prior Chief Executive Officer and that he will receive certain payments upon leaving. (Id.) Because the topic of this article is wholly unrelated to Plaintiff's claims, the Court orders that the article be stricken as an exhibit and that all references to the article throughout the Second Amended Complaint be stricken, as well.
Similarly, the Court agrees with Defendant that Plaintiff's reference to an "FCA claim" on page 4 of the Second Amended Complaint has no relation to the current litigation and should therefore be stricken. (Dkt. No. 164 at 2-3.)
b. References to Disabled Veteran Status
Defendant next argues that references to Plaintiff's "disabled veteran status" should be stricken because Plaintiff has specifically disclaimed any right to relief as a disabled veteran in his Second Amended Complaint. (Dkt. No. 164 at 3; Dkt. No. 135 at 4.) The Court agrees with Defendant that such references to Plaintiff's "disabled veteran status" are not essential to Plaintiff's claims, but they are not so unrelated as to have "no possible relation or logical connection to the subject matter of the controversy" and will not cause significant prejudice to Defendant. See Rosendall, 2017 WL 9674476, at *4 (referencing Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011)).
c. Speculative Allegations Related to the State of Mind of Others; Matters Outside the Personal Knowledge of Plaintiff; Derogatory Allegations Meant to Insinuate Lack of Competency or Knowledge; Misquotes and Incomplete Exhibits
Defendant also contends that Plaintiff's Second Amended Complaint contains speculative allegations related to the state of mind of others and/or matters outside the personal knowledge of Plaintiff and derogatory allegations meant to insinuate Defendant's lack of competency or knowledge that should be stricken. (Dkt. No. 164 at 4.) Specifically, Defendant asks that certain quotes from its human resources personnel be stricken and asserts that Plaintiff's descriptions of his interactions with Defendant's employees should be removed. (Id. at 4-5.) Plaintiff, on the other hand, argues that his dealings with Defendant's human resources team are absolutely related to his claims and that "[a]llegtions that Boeing's HR departments performed poorly are certainly in issue." (Dkt. No. 161 at 6.) Since Plaintiff's claims are based upon Defendant's failure to appropriately reassign him, the Court agrees that Plaintiff's encounters with human resources throughout that process are important to his complaint. Further, any incompetence of Defendant's employees in guiding Plaintiff throughout his reassignment process is directly related to Plaintiff's claims. Therefore, Defendant's motion to strike these portions of the Second Amended Complaint is denied.
The Court notes that there are instances where Plaintiff has failed to accurately cite quoted material in the Second Amended Complaint, but finds it improper to strike such quoted material at this juncture.
d. Legal Arguments
Finally, Defendant requests that the Court strike Plaintiff's legal arguments from the Second Amended Complaint. (Dkt. No. 164 at 6.) The Court understands Defendant's assertion that such arguments are not necessary in the Second Amended Complaint. Regardless, Plaintiff's legal reasoning and support is clearly relevant and pertinent to Plaintiff's case and does not cause any significant prejudice to Defendant. See Rosendall, 2017 WL 9674476, at *4 (referencing Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011) (noting that allegations should be stricken only where there is "no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action").
In turn, the undersigned orders that Defendant's motion to strike certain portions of Plaintiff's Second Amended Complaint be granted with respect to: the article included as attachment 3 and all references thereto, and the reference to an "FCA claim" on page 4. The undersigned further orders that Defendant's motion to strike be denied with respect to all other portions of Plaintiff's Second Amended Complaint.
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Partial Motion to Dismiss (Dkt. No. 152) be granted in part and denied in part, and that Plaintiff's state-law breach of contract claims be dismissed with prejudice. In addition, the undersigned orders that Defendant's Motion to Strike (Dkt. No. 153) be granted in part and denied in part.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE September 2, 2020
Charleston, South Carolina
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).