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Brady v. The Dow Chemical Co. Retirement Board

United States District Court, S.D. West Virginia, Charleston Division

July 31, 2019

DENNIS P. BRADY, Plaintiff,



         Before this Court is a motion to dismiss filed by Defendants The Dow Chemical Company Retirement Board and Union Carbide Employees' Pension Plan (collectively, “Defendants”). (ECF No. 7.) By standing order entered on January 14, 2016, and filed in this case on August 30, 2018, this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a recommendation for disposition (“PF&R”). (ECF No. 4.) Magistrate Judge Tinsley entered his PF&R on June 10, 2019, recommending that this Court grant Defendants' motion and dismiss this action. (ECF No. 13.)

         For the reasons explained more fully herein, this Court OVERRULES the objections filed by Plaintiff Dennis P. Brady (“Plaintiff”), (ECF No. 14), and ADOPTS the PF&R, (ECF No. 13). Defendants' motion to dismiss, (ECF No. 7), is GRANTED.

         I. BACKGROUND

         Plaintiff brings this action pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq. (ECF No. 1.) He alleges that he is a participant in the Plan and that on May 3, 2013, he requested certain documents from the Plan but never received them. (Id. at 2.) He further alleges that he made a second request for the same documents on August 24, 2017, and received them on September 2, 2017. (Id. at 3-4.) He makes a single claim for statutory penalties of $110 per day for each of the 1, 550 days between the deadline for responding to his May 3, 2013 request and his September 2, 2017 receipt of the requested documents, for a total of $170, 500. (Id. at 4-5.) Defendant moved to dismiss the action as time-barred. (ECF No. 7.)

         Magistrate Judge Tinsley filed his PF&R on June 10, 2019. (ECF No. 13.) Plaintiff filed timely objections on June 27, 2019. (ECF No. 14.) Defendants filed a timely response to Plaintiff's objections on July 11, 2019. (ECF No. 15.) As such, this matter is fully briefed and ripe for adjudication.


         A. Review of PF&R

         Upon receipt of a PF&R, this Court “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). This Court “make[s] a de novo determination of those portions of the [PF&R] to which objection is made.” Id.; see Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016). However, this Court is not required to review, “under a de novo or any other standard, ” the factual or legal conclusions of the magistrate judge “when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the [PF&R].” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

         B. Motion to Dismiss

         In general, a pleading must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). However, to withstand a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts “to state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “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 678. Stated another way, the factual allegations in the complaint “must be sufficient ‘to raise a right to relief above the speculative level.'” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th Cir. 2017) (quoting Twombly, 550 U.S. at 555). A complaint that alleges enough facts “to satisfy the elements of a cause of action created by [the relevant] statute” will survive a motion to dismiss. Id. at 648 (quoting McCleary-Evans, 780 F.3d at 585).

         In evaluating the sufficiency of a complaint, this Court first “identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the[] veracity” of the complaint's “well-pleaded factual allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.” Id. Review of the complaint is “a context-specific task that requires [this Court] to draw on its judicial experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is not required to plead factual allegations in great detail, but the allegations must contain sufficient factual heft to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of that which is alleged.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal quotation marks omitted).

         III. ANALYSIS

         A. Applicable ...

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