Opinion
Civil Action 4:23-cv-2658-RBH-TER
03-20-2024
SHAWN BARRETT, Plaintiffs, v. GRAND STRAND REGIONAL MEDICAL CENTER/HCA HEALTHCARE, INC./PARALLON, SHERRI MOUNTAIN, and MICHELLE WALKER, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
This case arises from Plaintiff's employment with Defendants Grand Strand Regional Medical Center/HCA Healthcare, Inc/Parallon (the “Corporate Defendants”). Plaintiff asserts federal causes of action against the Corporate Defendants for race discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1981, and age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. She also asserts state law causes of action against Defendants Sherri Mountain and Michelle Walker (the “individual Defendants”) for slander, and tortious interference with a contract, and a state law cause of action against the Corporate Defendants for negligent supervision.
In her response to the Corporate Defendants' motion to dismiss, Plaintiff agrees that dismissal of Parallon is appropriate. Pl. Resp. p. 1 and Ex. B (ECF No. 6, 6-2). Therefore, Parallon should be dismissed from this action.
Plaintiff originally filed this action in the Court of Common Pleas, Horry County, South Carolina on April 13, 2023. Counsel for the Corporate Defendants made a “special limited appearance” asserting that Plaintiff “purported” to serve the summons and complaint on them on May 15, 2023, and they removed the action to this court pursuant to 28 U.S.C. §§ 1441 and 1446 on June 14, 2023. At the time of removal, the individual Defendants had not yet been served. Plaintiff subsequently served the individual Defendants on July 5, 2023, and they joined in the removal.
Presently before the court are the Corporate Defendants' Motion to Dismiss (ECF No. 5), the individual Defendants' Motion to Dismiss (ECF No. 8), and Plaintiff's Motion to Amend her Complaint (ECF No. 9). 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.
II. FACTUAL ALLEGATIONS
Plaintiff, an African-American female, was fifty-three at the time of her termination from employment with the Corporate Defendants in September of 2021. Compl. ¶ 3 (ECF No. 1-1). Plaintiff was hired on October 30, 2017, by CEO Mark Sims and her immediate supervisor, ECO Peter Kaufman. Compl. ¶¶ 6-7. Plaintiff was hired as a Contracts Administrator and Grievance Coordinator, but she also performed the duties and responsibilities of an Administrative Assistant. Compl. ¶ 4. Plaintiff also served as a member of the Equity, Diversity, and Inclusion Council for the facility, and was selected for the position by Mark Sims, Peter Kaufman and Keri Nelson, VP of HR and Risk Manager. Compl. ¶ 9. Plaintiff's supervisor, Kaufman, was very supportive of Plaintiff, and Plaintiff received excellent evaluations throughout her employment. Compl. ¶ 10.
The numbers of the paragraphs in the complaint repeat. The paragraph numbers cited herein refer to the paragraph in the section entitled “Factual Background” unless otherwise noted.
When Plaintiff performed the duties of an Administrative Assistant, she would answer phones for two “dedicated” Administrative Assistants, Defendants Sherri Mountain and Michele Walker, both younger, Caucasian females. Compl. ¶ 4. Plaintiff's was hired as the Contracts Administrator and Grievance Coordinator over Mountain, who also applied for and interviewed for the position but was not selected due to her lack of qualifications. Compl. ¶ 5. Mountain and Walker were not happy with Plaintiff's hire and “almost immediately began to make trouble for the Plaintiff.” Compl. ¶ 5. Plaintiff was regularly subjected to differential treatment based on her race by Caucasian females. Specifically, Caucasian females would make negative comments regarding African-Americans being late, lazy, and not coming to work. Mountain would regularly make African-American jokes regarding Plaintiff and other employees at the hospital. Compl. ¶ 11. Plaintiff alleges that Mountain was “an avid Black Lives Matter movement hater” and regularly made negative comments in the office regarding African-Americans and Black Lives Matter. Compl. ¶ 13.
In 2020, as a result of COVID-19, the hospital granted wide latitude for non-essential personnel to either work remotely or, if they chose to work in their office, they were not required to co-mingle with the patient population and could stay off the unit floors. Plaintiff chose to remain on site. Mountain and Walker regularly made commentary regarding Plaintiff's whereabouts, attempting to cast shade on Plaintiff, though she was always on site in her office and available. Compl. ¶ 14. Mountain and Walker made several false statements about Plaintiff to facilitate her termination. They made statements regarding Plaintiff's performance of her positions, failing to appear to conduct the requirements of her position, and defamatory statements regarding her overall performance. Compl. ¶ 16. Plaintiff alleges that the actions by Mountain and Walker created a hostile work environment and led to her termination. Compl. ¶¶ 15, 16. Plaintiff reported Mountain's and Walker's actions to her supervisor, Kaufman, throughout her employment who, in turn, reported them to upper management. However, no action was ever taken to change Plaintiff's work environment. Compl. ¶ 17.
In paragraph 14, Plaintiff labels Mountain and Walker as “Angry Caucasian females” and refers to them collectively as such throughout the remainder of the complaint.
Part of Plaintiff's job was to log any and all “gifts” received by physicians at the hospital, which caused hostility towards her from the physicians. Plaintiff reported this hostility to Kaufman, who reported the actions “up the chain of command,” but no actions were taken to curb the hostility. Compl. ¶ 18.
In early 2021, Kaufman began regularly reporting the discriminatory actions of Mountain and Walker to CEO Mark Sims and the Vice President of Human Resources Carly Pasquini, but neither one acted on Kaufman's concerns regarding those discriminatory actions. Instead, Defendants began to “build a file” on Plaintiff. Compl. ¶ 19. In August and September of 2021, Kaufman began reporting that not only were the actions of Mountain and Walker discriminatory and creating a hostile work environment, but also that the CEO's and Human Resources's failure to action was a violation of the law and of the Corporate Defendants' policies and procedures. Compl. ¶ 20.
Thereafter, the Corporate Defendants began to claim that Plaintiff failed to perform her position and was not coming in to work because there was a lack of scans through secure doors. However, much of Plaintiff's work did not require her to access secure doors. Compl. ¶ 21. On September 20, 2021, Plaintiff was placed on suspension and subsequently terminated. She received a phone call on September 24, 2021, from Pasquini notifying her of her termination, and was given the following explanation for her termination:
On September 20, 2021, you were placed on an unpaid suspension pending an investigation of allegations that were brought to our attention regarding your performance and standard working hours. As an exempt employee, you are expected to have reliable and consistent attendance as a requirement for your position. Failure to report to work during normal business hours impeded your ability to perform effectively in your position. This is evidenced by missing grievance/complaint entries in the Verge system and documented complaints from patients, staff, and visitors that you were unavailable by phone or in person to assist. This resulted in misplaced grievances and unjustified delays for appropriate follow-up and closure. As the Patient Relations representative, you are required in accordance with Joint Commission and CMS Standards as well as Grand Strand Medical Center Policies Complaint and Grievance Process and Patient Grievance and Complaint Management to log all patient related grievances and complaints immediately upon receipt. The investigation has been completed and there is sufficient documentation to substantiate that the above expectations have not been met. As a result, your employment will be separated effective today.Compl. ¶¶ 23-24. Kaufman, Plaintiff's direct supervisor, was terminated on September 24, 2021, as well. Compl. ¶ 25.
Plaintiff filed a Charge of Discrimination on November 23, 2021, alleging race discrimination, age discrimination, hostile work environment, and retaliation. Compl. ¶ 17 (of “Procedural Prerequisites”). She received a notice of right to sue on February 3, 2023. Compl. ¶ 18 (of “Procedural Prerequisites”).
III. STANDARD OF REVIEW
Defendants move to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(6) and/or to strike certain portions of the complaint pursuant to Fed.R.Civ.P. 12(f). In the alternative, the Corporate Defendants move that Plaintiff's attempt at serving them with the summons and complaint be quashed.
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 a claim 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 for the misconduct alleged.Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003).
Under Federal Rule of Civil Procedure 12(f), a court “may strike from the pleadings an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “The purpose of the motion to strike is to avoid the waste of time and money that arises from litigating unnecessary issues.” Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 547 (E.D. N.C. 2005) (internal quotation marks omitted). A court “possesses considerable discretion in disposing of a motion to strike redundant, impertinent, immaterial or scandalous matter.” Carlson v. Gen. Motors Corp., No. CIV. A. 2-86-2674-1, 1991 WL 90893, at *1 (D.S.C. Mar. 14, 1991) (citing 5A C. Wright and A. Miller, Federal Practice & Procedure: Civil § 1382, at 683 (2d ed.1990)).
The Corporate Defendants also move to quash service against them. Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a defendant may move to dismiss or quash for insufficient service of process. Fed.R.Civ.P. 12(b)(5). If service is contested, the plaintiff bears the burden of establishing that it effected proper service. O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006); Dickerson v. Napolitano, 604 F.3d 732, 752 (4th Cir. 2010); Fed.R.Civ.P. 4.
IV. DISCUSSION
A. Dismissal
Plaintiff asserts claims against the Corporate Defendants under Title VII, § 1981, and the ADEA, as well as a state law claim for negligent supervision. She asserts claims against the individual Defendants for slander and tortious interference with a contract. Defendants argue that dismissal of Plaintiff's claims against them pursuant to Rule 12(b)(6) is proper for several reasons.
First, Defendants argue that Plaintiff's failure to incorporate her factual allegations in to each cause of action is fatal to her claims. Paragraphs 53, 70, 82, 95, 105, 113, and 125 each begin a new cause of action in her complaint and state as follows: “That Paragraphs one (1) through() are hereby incorporated herein.” It appears that Plaintiff intended to fill in the blanks with the relevant paragraph numbers but failed to do so prior to filing the complaint. Plaintiff has filed a motion to amend her complaint to correct those “scrivener's errors” and add the relevant paragraph numbers. While the undersigned finds that this amendment is important to correct the scrivener's errors, Plaintiff's failure to incorporate those paragraph numbers into each cause of action is not fatal to her claims. Defendants cite to no rule or case law requiring a plaintiff to specifically incorporate her factual allegations under the heading for each cause of action for those factual allegations to be considered in determining whether the plaintiff has sufficiently pleaded those claims under Rule 8 of the Federal Rules of Civil Procedure. Rule 8(d)(1) of the Federal Rules of Civil Procedure states that “each allegation must be simple, concise, and direct. No technical form is required.” Contrary to Defendants' arguments, the court is not limited to the allegations set forth underneath the heading for each cause of action when considering whether sufficient allegations exist to satisfy Rule 8. Rather, when considering a Rule 12(b)(6) motion, a court must examine the complaint as a whole, accept the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Lambeth v. Bd. of Comm'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005). Thus, Defendants' argument that Plaintiff has failed to state a claim as to any of her causes of action for her failure to incorporate her factual allegations into each cause of action is without merit. When the complaint is read as a whole, Plaintiff has alleged sufficient facts to state claims under § 1981 for discrimination based on race and under Title VII for discrimination, retaliation, and a hostile work environment based on race. She alleges that co-workers regularly made jokes or negative comments regarding African-Americans and the Black Lives Matter movement, that they made false statements about her in an attempt to get her terminated, and that nothing was done to change her work environment even though she reported the discriminatory behavior to her supervisor, who in turn reported it to the CEO and the Vice President of Human Resources. She also alleges that after she and her supervisor reported the discriminatory actions by Mountain and Walker in August and September of 2021, she was placed on suspension and then terminated in September of 2021.
However, her allegations with respect to her discrimination claim under the ADEA fall short. There are no specific allegations in the complaint of any discriminatory treatment against her based on her age. The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age.” 29 U.S.C. § 623(a)(1). Plaintiff alleges generally that her employer treated her differently because of her age because younger individuals had more favorable job assignments, bigger raises, better evaluations, no discipline, and “returned to work.” Compl. ¶¶ 97-98. However, she does not include any factual allegations with respect to these claims. Although she does allege that Mountain and Walker are younger than her, she does not allege that they are the younger employees who received more favorable treatment, nor does she identify any other younger employees. She also fails to allege what the more favorable job assignments were, what offenses the younger individuals committed without discipline, or what raises the younger individuals obtained that she did not. Plaintiff's allegations with respect to her age discrimination claim amount to “naked assertion[s]” devoid of “further factual enhancement,” which are insufficient to survive a motion to dismiss. Iqbal, 556 U.S. at 678. Therefore, dismissal of her age discrimination cause of action is appropriate.
The Corporate Defendants also argue that Plaintiff's negligent supervision cause of action is subject to dismissal because Plaintiff fails to allege sufficient factual allegations to state a claim for negligent supervision and because such a claim is barred by the South Carolina Workers' Compensation Act's (SCWCA) exclusivity provision. The SCWCA provides,
The rights and remedies granted by this Title to an employee when he and his employer have accepted the provisions of this Title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.S.C. Code Ann. § 42-1-540. The South Carolina General Assembly has, therefore, vested the South Carolina Workers' Compensation Commission with exclusive original jurisdiction over an employee's work-related injuries. See Sabb v. S.C. State Univ., 567 S.E.2d 231, 234 (S.C. 2002). Courts, applying § 42-1-540, have held that claims for negligent supervision specifically are covered by the SCWCA. See Id.; Dewese v. Sci. Applications Int'l Corp., No. 2:11-3024-DCN-BHH, 2012 WL 1902264, at *3 (D.S.C. May 2, 2012); Palmer v. House of Blues Myrtle Beach Rest. Corp., No. 4:05-3301-RBH, 2006 WL 2708278, at *3 (D.S.C. Sept. 20, 2006); Dickert v. Metro. Life Ins. Co., 311 S.C. 218, 428 S.E.2d 700 (S.C. 1993); Washington v. Hilton Hotels Corp., No. 2:07-cv-2694-CWH, 2008 WL 747792, at * 4 (D.S.C. Mar. 17, 2008); Edens v. Bellini, 359 S.C. 433, 597 S.E.2d 863 (S.C. App. 2004).
Without citation to case law, Plaintiff first argues that workers' compensation claims are specific to accidents not intentional acts of the agents and, thus, the exclusivity provision does not apply in this case. However, Plaintiff's claim against the Corporate Defendants for negligent supervision is not an intentional tort and, thus, this argument is without merit. See Lindblad v. J & I Servs., Inc., No. 4:18-1336-RBH-TER, 2019 WL 653968, at *6 (D.S.C. Jan. 30, 2019), report and recommendation adopted sub nom. Lindblad v. J & L Servs., Inc., No. 4:18-01336-RBH-TER, 2019 WL 652248 (D.S.C. Feb. 15, 2019). She also argues that the exclusivity provision does not apply where the injury is not personal injury but injury to reputation. However, with respect to Plaintiff's negligent supervision claim, she does not allege injury to reputation as part of her damages. Rather, she alleges that she suffered emotional distress as a result of the Corporate Defendants' negligent supervision of Mountain and Walker. See Compl. ¶¶ 126, 129. Therefore, her claim falls within the SCWCA exclusivity provision and dismissal is appropriate. See Stokes v. First Nat'l Bank, 306 S.C. 46, 410 S.E.2d 248 (1991) (mental injury arising from non-physical stress is within the SCWCA).
The individual Defendants also argue that the claims asserted against them-slander, and tortious interference with a contract-fail to state a claim. Slander is the spoken form of defamation. Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 484, 514 S.E.2d 126, 133-34 (1999) (citation omitted). The tort of defamation allows a plaintiff to recover when a defendant communicates a false message about the plaintiff to others that injures the plaintiff's reputation. McBride v. Sch. Dist. of Greenville Cty., 389 S.C. 546, 559, 698 S.E.2d 845, 852 (Ct. App. 2010). A party asserting a claim of defamation must prove the following elements: “(1) a false and defamatory statement was made; (2) the unprivileged publication of the statement to a third party; (3) the publisher was at fault; and (4) either the statement was actionable irrespective of harm or the publication of the statement caused special harm.” Williams v. Lancaster Cty. Sch. Dist., 369 S.C. 293, 302-03, 631 S.E.2d 286, 292 (Ct. App. 2006).
With respect to the fourth element, defamation that is actionable irrespective of special harm is defamation per se, which includes defamatory statements regarding 1) the commission of a crime, 2) contraction of a loathsome disease, 3) adultery, 4) unchastity, or 5) unfitness in one's business or profession. Fountain v. First Reliance Bank, 398 S.C. 434, 442, 730 S.E.2d 305, 309 (S.C. 2012) (citing Goodwin v. Kennedy, 347 S.C. 30, 36, 552 S.E.2d 319, 322-23 (S.C. Ct. App. 2001)).
Plaintiff alleges that Mountain and Walker intentionally published false statements regarding the Plaintiff's work performance while she was employed with the Corporate Defendants, and the false statements were made to place Plaintiff in a negative light, ruin her reputation, cause dissension in the ranks of her employment, and force her out of her employment. Compl. ¶¶ 107-07, 109. She alleges that Mountain and Walker knowingly made false statements “regarding the Plaintiff's performance of her positions, failing to appear to conduct the requirements of her position and defamatory statements regarding her overall performance.” Compl. ¶ 16. The allegations in a complaint are insufficient to state a claim for defamation where the plaintiff does not set forth with specificity what the alleged false statements were or to whom they were made. McNeil v. South Carolina Dep't of Corrections, 195, 743 S.E.2d 843, 848 (S.C. Ct. App. 2013) (affirming dismissal of defamation cause of action when the plaintiff could neither set forth with specificity the alleged false statements, whether defendant made allegedly defamatory statements, or to what third party such statements were published); see also Carson v. Emergency MD, LLC, 2020 WL 5077655, at *5 (D.S.C. Aug. 25, 2020) (“Many courts applying South Carolina law have found that a lack of specificity in a plaintiff's allegations regarding a defamation claim warrants dismissal.”); Doe v. Cannon, No. 2:16-cv-00530-RMG, 2017 WL 591121, at *1 (D.S.C. Feb. 14, 2017) (dismissing defamation claim because the plaintiff's allegations fail to “state with specificity the time, place, medium, and listener of the alleged defamatory statements”). Plaintiff's allegations with respect to any false statements made by the individual Defendants are vague and she includes no allegations as to whom these false statements were made. Accordingly, dismissal of Plaintiff's slander cause of action is appropriate.
The individual Defendants also argue that dismissal of Plaintiff's tortious interference with contract is proper. To establish a cause of action for tortious interference with contract under South Carolina law, a plaintiff must demonstrate: (1) existence of a valid contract; (2) the wrongdoer's knowledge thereof; (3) the wrongdoer's intentional procurement of its breach; (4) the absence of justification; and (5) resulting damages. Eldeco, Inc. v. Charleston Cty. Sch. Dist., 642 S.E.2d 726, 731 (S.C. 2007).
The South Carolina Supreme Court recently held, upon a certified question from this court, that an at-will employee can maintain an action for tortious interference with contract against a third-party, reasoning, in part, that “‘an employee with an at will employment contract must be able to expect that his continued employment depends on the will of his employer and not upon the whim of a third party interferer.'” Hall v. UBS Fin. Servs. Inc., 435 S.C. 75, 90, 866 S.E.2d 337, 344 (2021) (quoting Bochnowski v. Peoples Federal Savings & Loan Ass'n, 571 N.E.2d 282 (Ind. 1991)).
Plaintiff alleges that Mountain and Walker “were aware of the Plaintiff's contract for employment and intentionally interfered with that contract by providing false information, intimidation, harassment, bullying, and hostile work environment.” Compl. ¶ 115. She alleges that because of their conduct, Plaintiff's employment was terminated. Compl. ¶ 117. She alleges that the sole purpose of Mountain's and Walker's actions was to harm Plaintiff and they lacked justification for their actions. Compl. ¶¶ 121-22.
Defendants argue that Plaintiff's claim fails because an action for tortious interference with contractual relations requires interference by a third party. “[A]n action for tortious interference protects the property rights of the parties to a contract against unlawful interference by third parties.” Threlkeld v. Christoph, 312 S.E.2d 14, 15 (S.C.Ct.App.1984). A tortious interference with contract claim does not “protect a party to a contract from actions of the other party.” Id. This court has held that coworkers, as agents of an employer, are not third parties and, thus, cannot be liable for tortious interference with a contract. See e.g. McLendon v. Horry County Police Department, No. 4:13-CV-3403-BHH, 2016 WL 1168142 (D.S.C. March 25, 2016) (“because [the plaintiff's supervisors] are agents of Plaintiff's employer, HCPD, Plaintiff cannot maintain an action against them for intentional interference with a contract”); Farley v. Goodwill Indus. of Lower S.C., Inc., No. 4:15-CV-2450, 2016 WL 408949, at *16 (D.S.C. Jan. 12, 2016) report and recommendation adopted, 2016 WL 398159 (D.S.C. Feb. 2, 2016) (finding that plaintiff did not establish “a plausible claim of tortious interference with contract against” defendant who, as an agent of plaintiff's employer, was a party to the contract between plaintiff and the employer); Wencoast Restaurants, Inc. v. Chart Capital Partners, L.P., No. 2:05-1650-18, 2006 WL 490101, at *3 (D.S.C. Feb. 28, 2006) (finding plaintiff could not establish an interference with contract claim against defendants who were parties to the contact, including the agents and employees of the defendants); see also Dutch Fork Dev. Grp. II, LLC v. SEL Properties, LLC, 406 S.C. 596, 605, 753 S.E.2d 840, 844 (2012) (“[T]he actions of a principal's agent are afforded a qualified privilege from liability for tortious interference with the principal's contract.”).
Plaintiff argues that such a claim still stands against the individual Defendants because they acted outside the scope of their employment and not as agents of the Corporate Defendants. In Dutch Fork Dev. Grp. II, LLC v. SEL Properties, LLC, 406 S.C. 596, 605, 753 S.E.2d 840, 844 (2012), the South Carolina Supreme Court held that “an agent may be liable for tortious interference, just as if the agent were an outside third party, if the allegedly interfering acts were conducted outside the scope of the agent's authority.” Id. (quoting CGB Occupational Therapy, Inc. v. RHA Health Servs., Inc., 357 F.3d 375, 385 (3d Cir.2004)). The Dutch Fork court notes that “‘[s]cope of authority' is defined as ‘[t]he range of reasonable power that an agent has been delegated or might foreseeably be delegated in carrying out the principal's business.'” Id. at 605-06, 753 S.E.2d at845 (citing Black's Law Dictionary (9th ed.2009)). “What is within the scope of employment may be determined by implication from the circumstances of the case.” Wade v. Berkeley Cnty., 498 S.E.2d 684, 688 (S.C. Ct. App. 1998) (quoting Hamilton v. Miller, 389 S.E.2d 652, 653 (S.C. 1990)). Ultimately, “if the servant acts for some independent purpose of his own, wholly disconnected with the furtherance of his master's business, his conduct falls outside the scope of his employment. ” Crittenden v. Thompson-Walker Co., Inc., 341 S.E.2d 385, 387 (S.C. Ct. App. 1986). There are no allegations in this case that Mountain or Walker acted outside the scope of their employment or that they acted “for some independent purpose of [their] own, wholly disconnected with the furtherance of [Grand Strand's] business.” Id. Accordingly, dismissal of Plaintiff's tortious interference with contract claim is proper.
Plaintiff repeatedly refers to “Hilton,” rather than Mountain and Walker, throughout her discussion of her tortious interference with contract claim, which appears to be a cut-and-paste error from a previous case. See Pl. Resp. pp. 15-16 (ECF No. 10).
For the reasons discussed above, it is recommended that the individual Defendants' motion to dismiss be granted in full and that Mountain and Walker be dismissed from this action. It is recommended that the Corporate Defendants' motion to dismiss be granted in part. Specifically, it is recommended that Defendant Parallon be dismissed from this action with Plaintiff's consent, that Plaintiff's claims for discrimination under the ADEA and for negligent supervision be dismissed, and that Plaintiff's claims under Title VII and § 1981 for discrimination, retaliation, and a hostile work environment based on race remain pending.
B. Strike
Defendants also seek to strike all references in the complaint to Mountain and Walker as “Angry Caucasian females” as immaterial, impertinent, and scandalous. In paragraph 14, Plaintiff labels Mountain and Walker as “Angry Caucasian females” and refers to them collectively as such throughout the remainder of the complaint. See Compl. ¶¶ 14, 15, 17, 90, 127. Rule 12(f) allows a court to strike material from a pleading that is “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.'” Crownover v. S.C. Pub. Serv. Auth., No. 2:18-cv-02577-RMG-MGB, 2019 WL 13259287 *2 (D.S.C. Feb. 6, 2019) (quoting CTH 1 Caregiver v. Owens, No. 8:11-2215-TMC, 2012 WL 2572044, at *5 (D.S.C. July 2, 2012)). “‘Scandalous' includes allegations that cast a cruelly derogatory light on a party to other persons.” Id.
The district court possesses considerable discretion in disposing of a Rule 12(f) motion to strike redundant, impertinent, immaterial, or scandalous matter. However, because federal judges have made it clear ... that Rule 12(f) motions to strike on any of these grounds are not favored, often being considered purely cosmetic or “time wasters,” there appears to be general judicial agreement ... that they should be denied 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.5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1382. The moving party bears a “sizable burden” to show that the challenged allegations have no possible relation or logical connection and would cause significant prejudice if not stricken. Lopez v. Asmar's Mediterranean Food, Inc., No. 1:10cv1218, 2011 WL 98573, at *1 (E.D. Va. Jan. 10, 2011) (internal quotations omitted). Here, Defendants have failed to surmount that sizable burden. While Plaintiff's use of the phrase “angry Caucasian females” to describe Mountain and Walker may be scandalous to a degree and likely are not necessary to resolve disputed issues, Defendants cannot show that the phrase is immaterial to Plaintiff's claims or that use of the phrase would cause any prejudice to any Defendants. The individual Defendants argue that Plaintiff's use of this phrase is “inherently prejudicial, intended to inflame and prejudice a jury or potential jury, and is improper character evidence under the Federal Rules of Evidence.” Reply p. 7 (ECF No. 11). However, this court has previously noted that such an argument “is not compelling as the complaint as a matter of course is not submitted to the jury, and the jury pool is questioned about any prior knowledge of the case prior to selection and striking.” Rosendall v. Voight, No. 4:17-CV-0821-BHH-TER, 2017 WL 9674476, at *4 (D.S.C. Sept. 11, 2017) (Report and Recommendation adopted May 7, 2018) (citing National Council of Young Israel v. Wolf, 963 F.Supp. 276, 282 (S.D.N.Y. 1997) (“Inasmuch as the Court does not submit pleadings to the jury in civil cases, it is difficult to see how a defendant is prejudiced by the presence in the complaint of [such] material.”). The court further noted that the defendant's concern regarding the introduction of statements of trial are more appropriately addressed in a motion to limine. Accordingly, Defendants' request to strike should be denied.
The individual Defendants cite to Chancey v. North American Trade Schools, Inc., Civil No. WDQ-10-0032, 2010 WL 4781306, * 3 (D. Md. Nov. 17, 2010), for their argument that allegations in a complaint can be prejudicial when a juror might see the complaint, though the holding therein is not as broad as these Defendants represent. In Chancey, the court held only that the plaintiff's “inclusion of these prejudicial findings when he has demanded a jury trial and admits that a juror might see the complaint may be an attempt to evade the Federal Rules of Evidence.” Id. (Emphasis added).
C. Quash
Finally, the Corporate Defendants argue that Plaintiff failed to properly serve them because she served Grand Strand Regional Medical Center, HCA Healthcare, Inc., and Parallon with one letter and one copy of the Summons and Complaint rather than serving each of them separately. When a case is removed to federal court, the court looks to the state rules governing service of process as to see if the applicable state rule or statute has been followed. Fed. Deposit Ins. Corp. v. Schaffer, 731 F.3d 1134, 1136 (4th Cir. 1984); Hawes v. Cart Products, Inc., 386 F.Supp.2d 681, 690 (D.S.C. 2005). Rule 4 of the South Carolina Rules of Civil Procedure provides in part that “[c]opies of the original summons shall be served on each defendant.” (Emphasis added).
Plaintiff served her Summons and Complaint on the three Corporate Defendants by mailing a single letter, via the United States Postal Service Priority Mail, addressed to “CT Corporation System,” a corporate registered agent. Service Letter (ECF No. 5-3). The Service Letter states in part,
“[p]lease find enclosed the Summons and Complaint in the above referenced action hereby served upon you as the listed registered agent for HCA Healthcare, Inc. and Parallon d/b/a Grand Strand Regional Medical Center . . . The Secretary of State's office for the State of South Carolina has you listed as the register[ed] agent.”Id. The South Carolina Secretary of State's website provides that Grand Strand Regional Medical Center, LLC's registered agent is CT Corporation System. See Secretary of State Records (ECF No. 6-5), which is the agent who was served with process. Thus, service on Grand Strand Regional Medical Center was proper.
Plaintiff acknowledges that HCA Healthcare Inc. does not have a registered agent for service of process in South Carolina, but appears to argue that service on Grand Strand Regional Medical Center, Inc. is sufficient because HCA Healthcare, Inc. operates Grand Strand Regional Medical Center and received notice of the litigation through such service. The South Carolina Supreme Court has held that “[w]e have never required exacting compliance with the rules to effect service of process.” Roche v. Young Bros. of Florence, 318 S.C. 207, 209-10, 456 S.E.2d 897, 899 (1995). However, “the plaintiff [must] sufficiently compl[y] with the rules such that the court has personal jurisdiction of the defendant and the defendant has notice of the proceedings.” Id. Plaintiff has not sufficiently complied with the rules with respect to service on HCA Healthcare, Inc. Plaintiff sent one letter, summons, and complaint to CT Corporation System. However, CT Corporation System is not the registered agent for service of process for HCA Healthcare, Inc. Further, as acknowledged by Plaintiff, HCA Healthcare, Inc. is not registered to do business in South Carolina and, thus, Plaintiff's service on Grand Strand Regional Medical Center, LLC does not confer personal jurisdiction over HCA Healthcare, Inc. Service upon one corporation does not equate to proper service over other related or subsidiary entities. See, e.g., McCall v. IKON, 611 S.E.2d 646, 652-53 (S.C. Ct. App. 2005) (addressing similar language under Rule 5(a) of the South Carolina Rules of Civil Procedure requiring service on each party and holding that service of a single letter jointly addressed to two entities named as defendants was not adequate service). Accordingly, service as to HCA Healthcare, Inc. should be quashed and Plaintiff should be required to properly serve this Defendant. As set forth above, Plaintiff consents to Parallon's dismissal, and, thus, the court need not address the service arguments as they relate to it.
The court notes that the Corporate Defendants asserts that only Grand Strand Medical Center, Inc. was Plaintiff's employer and, thus, the only proper corporate defendant. See Motion p. 2 n.1 (ECF No. 5-1).
V. CONCLUSION
For the reasons discussed above, it is recommended that the Corporate Defendants' Motion to Dismiss (ECF No. 5) be granted in part and denied in part. Specifically, it is recommended that it be granted as to Plaintiff's ADEA and negligent supervision claims as well as to Defendants' request to quash service on HCA Healthcare, and that it be denied in all other respects. It is further recommended that Parallon be dismissed as a Defendant with Plaintiff's consent. In addition, it is recommended that the individual Defendants' Motion to Dismiss (ECF No. 8) be granted in part and denied in part. Specifically, it is recommended that it be granted as to Plaintiff's slander and tortious interference with contract claims and denied as to the individual Defendants' request to strike. It is further recommended that Plaintiff's Motion to Amend (ECF No. 9) be granted to correct the scrivener's errors subject to the recommendations set forth above.