Pastene v. Long Cove Club of HHI

• Decision Date: 13 November 2019
• Docket Number: Civil Action No. 9:19-cv-1210-RMG-TER
• Court: U.S. District Court — District of South Carolina
• Parties: ALEXANDER PASTENE, Plaintiff, v. LONG COVE CLUB OF HHI, SC, GENERAL MANAGER L. CRIMMINS, DIANE ADAMS, ASHLEY DAVIS, MICHAEL COCHRAN, GUATEMALAN WORKER SO-CALLED OSMAR, and his wife YURICA, Defendants.

ALEXANDER PASTENE, Plaintiff, v. LONG COVE CLUB OF HHI, SC, GENERAL MANAGER L. CRIMMINS,DIANE ADAMS, ASHLEY DAVIS, MICHAEL COCHRAN,GUATEMALAN WORKER SO-CALLED OSMAR, and his wife YURICA, Defendants.

Civil Action No. 9:19-cv-1210-RMG-TER

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA BEAUFORT DIVISION

November 13, 2019

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff, who is proceeding pro se, filed this action in the Court of Common Pleas, Beaufort County, South Carolina, alleging causes of action for age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., unlawful discharge/retaliation, negligence, "physical injuries on the job," intentional infliction of emotional distress, loss of wages, and slander/defamation. Defendants Long Cove Club Owners' Association, Inc.¹, Leon Crimmins, Diane Adams, Ashley Davis, and Michael Cochran removed the action to this court on April 26, 2019. Presently before the court are Plaintiff's Motion to Remand (ECF No. 15) and Defendants' Motion to Dismiss (ECF No. 4). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.

II. MOTION TO REMAND

In their Notice of Removal (ECF No. 1), Defendants assert that jurisdiction is proper in this court pursuant to 28 U.S.C. § 1331 because Plaintiff has alleged a cause of action under the ADEA. They further assert that this court has supplemental jurisdiction over Plaintiff's state law causes of action pursuant to 28 U.S.C. § 1367. Defendants represent that the remaining Defendants, Guatemalan Worker So-Called Osmar and his wife Yurica, had not been served at the time of removal.

Federal courts are courts of limited jurisdiction. Lehigh Mining & Manufacturing. Co. v. Kelly, 160 U.S. 337, 327 (1895). A defendant is permitted to remove a case to federal court if the court would have had original jurisdiction over the matter. 28 U.S.C. § 1441(a). A federal district court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "[A] claim of federal question jurisdiction is to be resolved on the basis of the allegations of the complaint itself." Burgess v. Charlottesville Sav. and Loan Assoc., 477 F.2d 40, 43 (4th Cir. 1973). "The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987) (citing Gully v. First National Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936)). For a federal question to be present on the face of a well-pleaded complaint, either federal law must create the cause of action, or plaintiff's right to relief must necessarily depend on the resolution of a substantial question of federal law. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). This rule makes plaintiffs the master of theirclaims, and they may avoid federal jurisdiction by relying exclusively on state law if they so choose. Caterpillar Inc., 482 U.S. at 392 (citing The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913) ("Of course, the party who brings a suit is master to decide what law he will rely upon") (Holmes, J.); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, n. 6, 106 S.Ct. 3229, 3233, n. 6, 92 L.Ed.2d 650 (1986) ("Jurisdiction may not be sustained on a theory that the plaintiff has not advanced"); Great North R. Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 239-240, 62 L.Ed. 713 (1918) ("[T]he plaintiff may by the allegations of his complaint determine the status with respect to removability of a case")).

Plaintiff does not argue that he has not pleaded a federal cause of action. His complaint clearly states that his claims arise, in part, under the ADEA.² Compl. ¶ 1 (ECF No. 4-1).³ Rather, Plaintiff argues that he is the master of his complaint and should be able to determine the forum, removal to the federal court causes him inconvenience, and the state court is as qualified to interpret federal law as it is state law. However, none of these reasons provide a proper basis to require remand of a clearly pleaded federal claim. While it is true that Plaintiff is the master of his complaint, he can avoid federal jurisdiction only by pleading solely state law claims. See Caterpillar Inc., 482 U.S. at 392. Although Plaintiff notes that grounds for remand can arise when there is a defect in the removal procedure, he does not identify any such defect in the present case. Accordingly, Plaintiff's Motion to Remand should be denied.

III. MOTION TO DISMISS

A. Factual Allegations

Plaintiff alleges that he was hired in April of 2017 to work part-time in the Golf Maintenance Department at Long Cove Club. Compl. ¶ 6. He performed his job duties "without reproach" and was promoted to a full time position. Compl. ¶ 7. In June or July of 2017, Plaintiff, who was 77 at the time of his employment, was working in the field with other workers when Defendant Guatemalan Worker So-Called Osmar got close to Plaintiff's face and, unprovoked and out of the blue, yelled at him "you are lazy." Compl. ¶ 12. Plaintiff informed the Superintendent of Golf, Defendant Ashley Davis, of the incident immediately, and Davis told Plaintiff he would handle it, and thus, Plaintiff decided not to call law enforcement to have Osmar arrested. Id. Around the same time, in June or July of 2017, Plaintiff began making inquiries about spraying toxic chemicals around the golf course without providing any protection for the employees. Id. Plaintiff appears to allege that his employment was terminated in retaliation for his inquiries about toxic chemicals. Compl. ¶ 24.

Shortly after he was assaulted by Osmar, Davis gave him a new assignment that involved removing and replacing twelve tee markers in every one of the 18 holes within three hours. Compl. ¶ 26. On his second day of performing this assignment, his knee "foundered" and he could not stand. Compl. ¶¶ 27, 37. He had to drag himself by his hands and arms to his golf cart to drive himself to the maintenance shop to report his injury. Compl. ¶¶ 27, 37. Thereafter, Plaintiff visited an orthopedic specialist who placed him on crutches, and Plaintiff was out of work for a month. Compl. ¶¶ 27, 37. Plaintiff alleges that Defendants were negligent in giving him a job assignment that would certainly injure anyone his age. Compl. ¶ 29. Plaintiff also suffered permanent physical injuries tohis right pinky finger caused by sprayings of toxic chemicals. Compl. ¶ 39. Long Cove's insurance company offered $11,000 in Workers' Comp and subsequently offered $26,000 to settle the matter, which Plaintiff declined because it required a blanket release of responsibility. Compl. ¶ 15.

Plaintiff further alleges that Defendants discriminated and retaliated against him because of his age. Compl. ¶ 34. He was required to rake bunkers by hand instead of using a Sand Pro machine despite his experience and qualifications. Compl. ¶ 35. Davis told Plaintiff that "golf maintenance was not a job for old people like him." Compl. ¶ 36. Plaintiff was subsequently further harassed and fired. Id. As a result of losing his job, he suffered $17,220 in lost wages. Compl. ¶ 45.

Finally, Plaintiff alleges that Osmar defamed his character by calling him lazy in front of several people. Compl. ¶ 50.

Plaintiff seeks damages in an amount no less than $250,000. Compl. ¶ 56.

B. Standard of Review

Defendants move to dismiss certain causes of action pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiffs' burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state aclaim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:

[T]he pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement."

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable

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