United States District Court, S.D. West Virginia, Charleston Division
DENNIS P. BRADY, Plaintiff,
THE DOW CHEMICAL COMPANY RETIREMENT BOARD, et al., Defendants.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
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.)
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
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.)
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.
Review of PF&R
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).
Motion to Dismiss
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).
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).