Opinion
Case No. 03-4218-RDR
March 15, 2004
MEMORANDUM AND ORDER
This is an action alleging a violation or violations of 42 U.S.C. § 1981 as well as claims under state law. This case is now before the court upon defendant's motion to dismiss. Defendant asks for dismissal under FED.R.CIV.P. 12(b)(1) (lack of subject matter jurisdiction), FED.R.CIV.P. 12(b)(6) (failure to state a claim), and 28 U.S.C. § 1367(c)(3) (discretionary rejection of supplemental jurisdiction). The primary question presented by the motion to dismiss is whether the complaint fails to state a claim under § 1981, the only federal statute alleged.
The complaint
The complaint alleges that on February 11, 2003 plaintiff, an African-American male, entered a branch of defendant's bank in Topeka, Kansas for the purpose of cashing a student loan check that was drawn upon an account of the bank. It is further alleged that a security guard "profiled" plaintiff as a "dangerous, suspicious" person who was casing the bank and likely to be involved in a heist or robbery. A written memorandum discussing plaintiff's activity inside the bank and indicating suspicions regarding plaintiff was communicated to other banks, including Fidelity State Bank Trust Company in Topeka. A videotape of plaintiff's visit was also forwarded to other banks.
Subsequent pleadings indicate that plaintiff actually cashed two checks. However, the court shall stick with the allegations of the complaint in deciding this motion.
Plaintiff cashed the student loan check and left defendant's bank, having completed his business. Plaintiff alleges that he was illegally profiled by defendant on the basis of his race. In his § 1981 claim he asserts that his "opportunity and right to enter into and enforce contracts has been denied and interfered with, depriving [p]laintiff, because of his race, of the same rights as are enjoyed by white citizens."
Legal Standards
When the court examines a motion to dismiss under FED.R.CIV.P. 12(b)(6), the court must accept all well-pled allegations in the complaint as true and view them in a light most favorable to the nonmoving party. Davis-Warren Auctioneers v. F.D.I.C., 215 F.3d 1159, 1161 (10th Cir. 2000). Conclusory legal allegations are not accepted. See Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998). The motion cannot be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief. Davis-Warren Auctioneers, 215 F.3d at 1161.
Section 1981
Section 1981 provides in part that "[a]ll persons . . . shall have the same right to make and enforce contracts . . . as is enjoyed by white citizens . . ." The phrase "`make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."
Arguments raised
Defendant asserts that plaintiff has failed to state a claim under § 1981 because plaintiff does not allege that he had or attempted to make a contractual relationship with defendant. Defendant further asserts that plaintiff has failed to state a claim under § 1981 because plaintiff does not allege that defendant denied him the ability to make and enforce contracts through any actions described in the complaint. Finally, defendant claims that plaintiff's claims of defamation are not actionable under § 1981 and that the court should not exercise supplemental jurisdiction over the state law claims that are stated in the complaint.
Defendant also contends that a person who cashes a check at a bank where he has no account is not acting pursuant to a contractual relationship with the bank under Kansas law. Defendant asserts that it was performing a gratuitous act by cashing the student loan check in this instance. We do not reach either point in this order.
In response to defendant's arguments against the § 1981 claim, plaintiff makes reference to sworn statements from plaintiff and Sharisse Farmer. Plaintiff also makes reference to three federal court decisions:Alexis v. McDonald's Restaurants, 67 F.3d 341 (1st Cir. 1995);Bobbitt by Bobbitt v. Rage Inc., 19 F. Supp.2d 512 (W.D.N.C. 1998); and McCaleb v. Pizza Hut of America, Inc., 28 F. Supp.2d 1043 (N.D.Ill. 1998). Plaintiff further alleges in response to the motion to dismiss that he was required to go into the main bank branch lobby instead of using the drive-thru facility and to wait an inordinate length of time of up to twenty minutes prior to cashing the check or checks "apparently for the ostensible purpose of being videotaped so that his likeness could be available to other banking facilities in Topeka due to the racial profiling in violation of his contractual benefits and privileges . . ."
Analysis
To state a claim under § 1981, plaintiff must allege, among other things, that he was discriminated against in a manner which interfered with a protected activity under § 1981. Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091, 1102 (10th Cir. 2001) cert. denied, 534 U.S. 1131 (2002). Here, the protected activity asserted by plaintiff is the making and enforcing of contracts. This is just a legal conclusion, however. There are no facts alleged in the complaint which describe interference with plaintiff's ability to make and enforce contracts. Indeed, the complaint alleges that plaintiff completed his business transaction with defendant on February 11, 2003. It is not alleged that racial profiling or racially motivated surveillance interfered with defendant's ability to make and enforce contracts. As noted previously, it does not suffice to assert the bare legal conclusion that plaintiff's right to enter into and enforce contracts was denied. Therefore, a § 1981 claim is not stated in the complaint. SeeHampton, 247 F.3d at 1118 (§ 1981 requires interference with a contract beyond the mere expectation of being treated without discrimination while shopping); Garrett v. Tandy Corp., 295 F.3d 94, 100 (1st Cir. 2002) (no claim stated under § 1981 by African-American retail customer who was surveilled in store and reported to the police as a suspect in theft of computer after he left the store);Morris v. Office Max, Inc., 89 F.3d 411 (7th Cir. 1996) (no § 1981 claim where shoppers completed their purchases and were not denied service, but were referred to police as suspected shoplifters);Jeffrey v. Home Depot U.S.A., Inc., 90 F. Supp.2d 1066 (S.D.Cal. 2000) (no § 1981 claim where shopper's purchase of item was delayed by alleged racially motivated request to look inside a bag shopper carried with him); see also, Arguello v. Conoco, Inc., 330 F.3d 355 (5th Cir.) cert. denied, 124 S.Ct. 567 (2003) (no § 1981 claim where shoppers purchasing beer at convenience store were hassled regarding identification and subject to verbal abuse and crude gestures).
The cases cited in plaintiff's response to the motion to dismiss do not defeat defendant's arguments for dismissal. In Alexis v. McDonald's Restaurants, 67 F.3d 341 (1st Cir. 1995), the plaintiff was arrested at a restaurant under facts which were sufficient to allege that plaintiff was denied the "equal benefit of all laws" as white citizens and the right to "like punishment" as protected under § 1981. Plaintiff in the instant case is proceeding upon a different part of § 1981 and, of course, was not arrested or punished. Therefore, theAlexis case is distinguishable from the case at bar.
In Bobbitt by Bobbitt v. Rage, Inc., 19 F. Supp.2d 512 (W.D.N.C. 1998), two sets of plaintiffs brought claims. One set of plaintiffs alleged that they received slow service and bad service at a restaurant in comparison to white customers. Another set of plaintiffs alleged that they received poor service and were told they would have to prepay for their order because three African-American teenagers had left without paying the day before. The court held that the allegations of poor service were not enough to state a claim that the right to make and enforce a contract was violated. The court further held, however, that the alleged requirement of prepayment did suffice to state a claim under § 1981 because it alleged the deprivation of the terms and conditions of the contractual relationship enjoyed by white customers. In contrast, the complaint in the instant case does not assert that any terms and conditions related to the business transaction being conducted were denied to plaintiff.
In McCaleb v. Pizza Hut of America, Inc., 28 F. Supp.2d 1043 (N.D.Ill. 1998), the allegations of poor service extended to failing to provide eating utensils, refusing to sell drinks, driving the plaintiffs out of the restaurant before they had finished eating, and creating a disturbing atmosphere in which to eat. The court held this was sufficient to allege the denial of the right to make and enforce contracts afforded to white citizens because the plaintiffs asserted a denial of the ordinary accoutrements of a meal at the restaurant. Again, we find this significantly distinguishable from the allegations in plaintiff's complaint in the case at bar.
Plaintiff's reference to the sworn statements he and Sharisse Farmer made does not effectively rebut defendant's motion to dismiss. The issue is whether the complaint states a claim under § 1981. The court cannot decide that issue by considering allegations, even if they are sworn statements, which are not made in the complaint. Similarly, the court cannot judge the adequacy of the complaint by a factual assertion plaintiff's counsel makes in response to the motion to dismiss.
Furthermore, these statements do not appear to support a claim that plaintiff's rights to make and enforce contracts under § 1981 were violated. A delay in cashing checks and a request that plaintiff complete the transaction in the bank lobby as opposed to the drive-through facility do not appear to deprive a person of the benefits, privileges, terms and conditions of a contractual relationship with the bank for the purposes of § 1981.
Plaintiff does not deny defendant's argument that a defamation claim is not actionable under § 1981. See Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989). So, the question becomes whether the court should maintain supplemental jurisdiction over plaintiff's state law claims if the only federal claims are dismissed. In general, under these circumstances the court declines to exercise supplemental jurisdiction over state law claims. See 28 U.S.C. § 1367(c); Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) ("When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims."); Cole v. Sharp, 898 F. Supp. 799, 804 (D.Kan. 1995) (declining to exercise supplemental jurisdiction where claims under 42 U.S.C. § 1983 were dismissed). The court sees no good reason to modify our usual course here.
Conclusion
For the reasons stated above, the court shall grant defendant's motion if plaintiff does not or cannot in good faith amend the complaint regarding the § 1981 claim or claims before April 15, 2004.
IT IS SO ORDERED.