REPORT AND RECOMMENDATION

SHIVA V. HODGES, Magistrate Judge.

In this employment discrimination case, Gregory B. Holmes ("Plaintiff") sues his former employer, Town of Clover ("Town") and Town mayor, Donnie Grice ("Grice"). All pretrial proceedings in this case have been referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.).

This matter is before the court on Grice's motion to dismiss Plaintiff's Fifth Cause of Action for tortious interference with a contract. [ECf No. 18]. Plaintiff having filed a response on April 18, 2018 [ECF No. 19], this motion is ripe for disposition. Because the motion is dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court grant the motion to dismiss, but permit Plaintiff 14 days from the its ruling to amend the complaint.

I. Factual Background1

The Town hired Plaintiff in 2001 as a Program Coordinator and promoted him to Recreation Director in 2004. (Am. Compl. ¶¶ 10-11). Town has a Council form of government, but its Town Administrator is designated to run the day-to-day operations of the Town. Id. at ¶ 16. According to the amended complaint, although the Town Administrator was responsible for supervising Town employees, Grice exerted a great deal of influence over the Town's day-to-day operations. Id.

Plaintiff alleges that on April 20, 2015, Grice accosted Plaintiff at work because a player on a little league team that Grice coached had been ejected from a baseball game. Id. at ¶ 18. Grice was dissatisfied with the Recreation Department's response to his concerns, and he voiced his concerns directly to the Town Administrator, Plaintiff's supervisor. Id. at ¶ 20. During a meeting with Grice and the Town Administrator, Plaintiff, who was not at the baseball game, explained that the ejection was a judgment call consistent with little league rules. Id. at ¶¶ 19, 21. Defendant Grice replied, "This is not a judgment call . . . a judgment call is what [Michael Slager] did in North Charleston." Id.

Approximately one year later, Plaintiff was fired by the Town Administrator for allegedly pretextual reasons. Id. at ¶¶ 24-28. Plaintiff alleges he was fired at Grice's directive. Id. at ¶ 24).

II. Discussion

A. Legal Standard

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support" the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

B. Analysis

Grice argues that a tortious interference with a contract claim can only be brought by a third party, not a party to the contract. He further argues that as the Town mayor, he is a Town agent and cannot interfere with a contract to which Town is a party. In response, Plaintiff argues that the complaint alleges that Grice's conduct fell outside of the course and scope of his employment. [ECF No. 12 at 8].

Plaintiff does not appear to dispute, and the undersigned agrees, that Grice cannot be held liable for tortious interference with a contract between Plaintiff and Town while he was acting within the course and scope of his employment with Town. Although Plaintiff claims that the amended complaint specifically alleges that Grice acted outside of the course and scope of his employment, the undersigned's review of the amended complaint reveals that it references only that Grice exerted "a great deal of influence over Defendant's Council and Town operations" (Am. Compl. ¶ 16), but does not state that his actions were outside the course and scope of his employment. Additionally, Plaintiff included a town ordinance as an attachment to the response, but it is not referenced in the amended complaint and therefore cannot be considered on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b). Because the amended complaint does not explicitly allege that Grice was acting outside of the course and scope of his employment, under the circumstances of this case, the undersigned recommends Grice's motion to dismiss be granted on this basis. However, the undersigned recommends that Plaintiff be given an opportunity to amend the amended complaint, as set out below.

III. Conclusion and Recommendation

For the foregoing reasons, the undersigned recommends the court grant Grice's motion to dismiss. [ECF No. 18]. The undersigned further recommends that the dismissal of Plaintiff's Fifth Cause of Action for tortious interference with a contract be without prejudice with leave to file an amended complaint within 14 days of the district court's order on the motions to dismiss, if he so chooses. See Ostrenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir. 1999). If the district judge accepts this recommendation and Plaintiff fails to file an amended complaint within 14 days of the district court's order on the motions to dismiss, the undersigned recommends the dismissal be with prejudice as to the Fifth Cause of Action.

IT IS SO RECOMMENDED.

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:

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).