Nanko Shipping, USA, et al v. Alcoa, Inc., et al

Filing

OPINION [1665351] filed (Pages: 11) for the Court by Judge Pillard, DISSENTING OPINION (Pages: 4) by Judge Brown [15-7070]

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided March 10, 2017

Argued September 23, 2016
No. 15-7070

NANKO SHIPPING, USA, PARENT COMPANY OF NANKO
SHIPPING GUINEA, ET AL.,
APPELLANTS
v.
ALCOA, INC. AND ALCOA WORLD ALUMINA, LLC,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01301)

Donald M. Temple argued the cause and filed the briefs for
appellants.
Thomas E. Birsic argued the cause for appellees. With
him on the brief were Matthew J. Louik and David T. Case.
Before: ROGERS, BROWN and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
Dissenting opinion filed by Circuit Judge BROWN.

Page 1 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

2
PILLARD, Circuit Judge: The Republic of Guinea is one of
the world’s principal sources of bauxite, an aluminum ore.
After Guinea declared independence from France in the middle
of the last century, it sought to ensure that the exploitation of
its natural resources would not only provide business for
multinational corporations based overseas that invested in the
ore’s extraction, but would also benefit the Guinean economy.
Plaintiff Nanko Shipping Guineé (Nanko) claims to be the
beneficiary of one of Guinea’s legal undertakings to that end,
and contends in this case that defendants (collectively, Alcoa)
violated corresponding obligations. Other named plaintiffs—
Nanko’s owners, Nanko Shipping USA and Mori Diané, an
American of Guinean descent—are not before us, having not
appealed the district court’s order dismissing them for lack of
standing.
The district court granted Alcoa’s motion to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(7) for
failure to join Guinea, which Alcoa asserts is a Rule 19 required
party. The district court concluded that Guinea could not be
joined because it is entitled to sovereign immunity. But it is
not apparent why Guinea is a required party and, if it is,
whether Nanko’s allegations bring Guinea within the
commercial-activity exception to foreign sovereign immunity
such that its joinder would be feasible. We accordingly reverse
and remand for further proceedings.
I.
On review of the order granting the motion to dismiss, we
assume—as did the district court—the truth of the facts alleged
in Nanko’s proposed Second Amended Complaint. According
to that complaint, in 1963 the Republic of Guinea and the
Harvey Aluminum Company of Delaware (now Halco) signed
an agreement establishing the Compagnie des Bauxites de

Page 2 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

3
Guinée (CBG) for the purpose of developing Guinea’s rich
bauxite mines. 1 CBG is a corporation of which Guinea owns a
49 per cent share and Halco 51 per cent. Nanko alleges that
defendant Alcoa, in turn, is somehow both the minority owner
and alter ego of Halco. Over the last half century, CBG has
extracted and exported more than 600 million tons of Guinean
bauxite.
Under Article 9 of the CBG Agreement, Guinea reserved
the right to require that up to 50 per cent of the Republic’s
bauxite be shipped on vessels flying the Guinean flag or
chartered by the Guinean government, provided that the freight
rates those Guinean shippers offered are no higher than, and the
services equal to, those otherwise available on the international
shipping market. That clause presumably was designed to
ensure that some of the business generated by the bauxite mines
would go to qualified Guinean shipping firms and thereby
benefit the Guinean economy.
Nanko alleges that, in August 2011, Guinea entered into a
Technical Assistance Agreement (TAA) with Nanko. That
document is neither quoted in nor attached to the pleadings, nor
is it otherwise in the record. Pursuant to the TAA, Nanko
alleges, it “assumed Guinea’s rights” under Article 9 of the
CBG Agreement “to manage, control and ship” up to 50 per
cent of Guinean-produced bauxite. Prop. Second Am. Compl.
at 2.
Later in 2011, CBG’s Board of Directors allegedly invited
its constituent corporations, including Halco and Alcoa, to
contact Nanko to make shipping arrangements. Nevertheless,
1

Nanko calls this agreement a “convention,” see Appellant’s
Br. 2, but that term usually denotes an accord between states. The
cover page of the agreement describes it as an “Agreement Between
the Republic of Guinea and Harvey Aluminum Co. of Delaware.”

Page 3 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

4
Halco and Alcoa refused to deal with Nanko, offering “only a
few limited micro-tender shipping opportunities” that were
“substantially less in value and volume than the shipping rights
and contracts” to which Nanko claims it is entitled under the
TAA. Prop. Second Am. Compl. ¶¶ 26, 46. Halco and Alcoa
allegedly added insult to injury, posing questions about
Nanko’s “background and capacity” that were not asked of
other shipping companies and then refusing to credit Nanko’s
responses. Id. at ¶¶ 42, 65. Guinea, for its part, “repeatedly
urged” Halco and Alcoa to hire Nanko to ship their bauxite. Id.
at ¶ 76.
In this action, Nanko initially brought two claims: one for
breach of the CBG Agreement, asserting that it is a third-party
beneficiary thereof, and another for racial discrimination in
violation of 42 U.S.C. § 1981. Alcoa moved to dismiss on a
variety of grounds, including lack of standing, failure to state a
claim, and failure to join a required party. Nanko responded
with a proposed Second Amended Complaint adding Halco as
a defendant and asserting an additional claim against Alcoa for
tortious interference with contractual relations.
The district court dismissed the case under Rule 12(b)(7)
for failure to join a Rule 19 party. Guinea was a required party
under Rule 19(a), the court concluded, because resolving
Nanko’s claims would depend on defining Guinea’s rights
under its CBG Agreement with Halco, which might “impair or
impede Guinea’s right to protect its interests” under that
Agreement. Nanko Shipping, USA v. Alcoa, Inc., 107 F. Supp.
3d 174, 181 (D.D.C. 2015) (“Nanko I”). Proceeding to the Rule
19(b) inquiry, the court concluded Guinea could not be joined
because it is entitled to sovereign immunity, and that the case
could not “in equity and good conscience” proceed in Guinea’s
absence. Id. at 181-82. Although it considered the allegations
of the proposed Second Amended Complaint in its analysis, the

Page 4 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

5
district court denied leave to file that complaint on grounds of
futility because it concluded that, even if it accepted the
additional allegations, it would still conclude that the case
cannot proceed without Guinea.
The district court alternatively noted that if Guinea could
be joined the case “would have to be dismissed so that the
parties could proceed to mandatory arbitration.” Nanko I, 107
F. Supp. 3d at 182 n.7. Because it is not clear on the present
record that Alcoa (as distinct from Halco and CBG) bound
itself to the relevant arbitration agreement, and because the
parties have not briefed the issue, we do not here address that
ground.
Nanko timely appealed and simultaneously moved the
district court to reconsider its dismissal of the discrimination
claim. The district court denied the reconsideration motion in
an order that postdates Nanko’s notice of appeal. See Nanko
Shipping, USA v. Alcoa, Inc., 118 F. Supp. 3d 372 (D.D.C.
2015) (“Nanko II”). In that order, the district court said that it
had dismissed the discrimination claim for failure to state a
claim, though its original dismissal rested exclusively on Rule
19 grounds. We conclude that the district court’s Rule 19
holding failed to fully grapple with Nanko’s allegations and
that those allegations, accepted as true, state a claim for racial
discrimination under § 1981.
II.
Federal Rule of Civil Procedure 19 calls on a district court
confronting a Rule 12(b)(7) motion to dismiss a case for failure
to join an absent party to decide first (under Rule 19(a))
whether the absent party should be joined, and, if joinder is
infeasible, to assess (under subsection (b)) whether the action
among the existing parties should proceed or be dismissed in
light of the missing party’s absence. We have summed up the

Page 5 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

6
Rule 19 inquiry as posing three questions: Should the absentee
be joined, i.e., is it necessary to the litigation? If so, can the
absentee be joined? And finally, if the absentee should but
cannot be joined, may the lawsuit nonetheless proceed “in
equity and good conscience”? W. Md. Ry. Co. v. Harbor Ins.
Co., 910 F.2d 960, 961 (D.C. Cir. 1990); see Kickapoo Tribe
of Indians of Kickapoo Reservation in Kan. v. Babbitt, 43 F.3d
1491, 1494 (D.C. Cir. 1995). Rule 19 promotes fair treatment
of nonparties in certain circumstances where their interests, and
particularly their due process rights, are at risk from litigation
between others. It also seeks to avoid multiple and wasteful
litigation, such as where the absence of a party would prevent
the court from granting the relief sought or expose an existing
party (typically the defendant) to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations. Rule
19 does not apply merely because dispute resolution would be
more efficient with the nonparty’s participation, nor because
the pending case could yield precedent adverse to the
absentee’s interests. A decision under Rule 19 “not to decide” a
case otherwise properly before the court is a power to be
exercised only “[i]n rare instances.” Nat’l Ass’n of Chain
Drug Stores v. New England Carpenters Health Benefits
Fund, 582 F.3d 30, 42 (1st Cir. 2009); see also Fort Yates Pub.
Sch. Dist. No. 4 v. Murphy ex rel. C.M.B., 786 F.3d 662, 671
(8th Cir. 2015).
We review the district court’s application of Rule 19(b)’s
“equity and good conscience” test for abuse of discretion,
Cloverleaf Standardbred Owners Ass’n, Inc. v. Nat’l Bank of
Wash., 699 F.2d 1274, 1276 (D.C. Cir. 1983), but “[q]uestions
of law that inform a district court’s Rule 19 determination are
reviewed de novo,” Am. Trucking Ass’n, Inc. v. N.Y. State
Thruway Auth., 795 F.3d 351, 356 (2d Cir. 2015). Under Rule
12(b)(7), we accept Nanko’s allegations as true and draw
all reasonable inferences in its favor. Paiute-Shoshone Indians

Page 6 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

7
of the Bishop Cmty. of the Bishop Colony, Cal. v. City of
Los Angeles, 637 F.3d 993, 996 n.1 (9th Cir. 2011). We
have not specifically addressed the standard of review of
decisions whether an absent party is necessary and whether it
cannot be joined—the first and second questions in the above
triad—and we need not do so here. Under any standard of
review, we cannot, on the current record, affirm the
district court’s conclusion that Alcoa has shown that
Guinea is a necessary party to this litigation that cannot be
joined, and that the case accordingly must be dismissed.
The district court determined that Guinea is a potential
party required to be joined if feasible. Guinea is a necessary
party under Rule 19, the district court held, simply because
“[t]he Court’s interpretation of the [CBG Agreement] may
impair or impede Guinea’s right to protect its interests” under
that Agreement. Nanko I, 107 F. Supp. 3d at 181. But due
process protects Guinea from being bound by any judgment
rendered in its absence, and it is not obvious what interests
Guinea would retain in the CBG Agreement if Nanko
“assumed Guinea’s rights” thereunder, as Nanko alleges. Prop.
Second Am. Compl. at 2. See SEC v. Bilzerian, 378 F.3d 1100,
1108 (D.C. Cir. 2004) (absent party not required to be joined
where it merely assigned rights to party). Alcoa expresses
concern that the court might “construe the CBG [Agreement]
in a manner inconsistent with or contrary to Guinea’s own
understandings or positions, without the opportunity for
Guinea to be heard.” Appellee Br. at 29. Rule 19 precedent is
admittedly scant, but we agree with the Third Circuit that “the
requirements of Rule 19(a) are not satisfied simply because a
judgment against Defendants in this action might set a
persuasive precedent in any potential future action.” Huber v.
Taylor, 532 F.3d 237, 250 (3d Cir. 2008). Insofar as the
existing parties’ interests are concerned, evidence of Guinea’s
actions, views, or prerogatives can be discovered and

Page 7 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

8
introduced where relevant to the parties’ claims and defenses
even if Guinea remains a nonparty. At the current pleading
stage, we do not believe the allegations can reasonably be read
to show that Guinea is a necessary party.
The district court further held that Guinea could not be
joined involuntarily on the ground that it is entitled to sovereign
immunity under the Foreign Sovereign Immunities Act (FSIA),
28 U.S.C. § 1602 et seq. See Nanko I, 107 F. Supp. 3d at 181.
The FSIA “renders a foreign government ‘presumptively
immune from the jurisdiction of United States courts unless
one of the Act’s express exceptions to sovereign immunity
applies.’” Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317 n.1
(2016) (quoting OBB Personenverkehr AG v. Sachs, 136 S.Ct.
390, 394 (2015)). Under the FSIA, a foreign state is not
immune from claims “based [1] upon a commercial activity
carried on in the United States by the foreign state; or [2] upon
an act performed in the United States in connection with a
commercial activity of the foreign state elsewhere; or [3] upon
an act outside the territory of the United States in connection
with a commercial activity of the foreign state elsewhere and
that act causes a direct effect in the United States.” 28 U.S.C.
§ 1605(a)(2).
Nanko and Alcoa sparsely briefed the immunity issue
before the district court. That court’s immunity holding rested
exclusively on Nanko’s failure to “contest” Alcoa’s bare
assertion that the court lacked jurisdiction over Guinea. See
Nanko I, 107 F. Supp. 3d at 181 n.6. But Nanko did contest the
point. See Opp’n to Mot. to Dismiss at 24 (characterizing as “a
red herring and meritless” Alcoa’s argument that “because
Guinea is a foreign sovereign this Court lacks jurisdiction”).
And Nanko’s motion for reconsideration argued that the court
was “not in [a] position to resolve,” absent discovery, what
Nanko identified as the “fact question” whether Guinea “enjoys

Page 8 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

9
sovereign immunity.” Mot. for Recons. at 4. Nanko’s
assumption that Alcoa’s assertion of Guinea’s immunity “may
be correct” is not, in context, fairly read to concede the matter.
See Opp’n to Mot. to Dismiss at 25. Nor did Nanko give up
the point in its motion for reconsideration by stating that the
district court “properly acknowledged that it [has no]
jurisdiction over … Guinea as a sovereign entity.” Mot. for
Recons. at 6 (emphasis added). That statement leaves open a
critical question for FSIA purposes: whether the district court
has jurisdiction over Guinea as a commercial actor.
Before this Court, Alcoa argues in a footnote that Nanko
“has utterly failed to allege any facts” establishing a FSIA
exception, thus failing to overcome the “presumption of
immunity.” Appellee Br. at 35 n.54 (citing Bell Helicopter
Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1183
(D.C. Cir. 2013)). That is not necessarily so. Most notably,
Nanko alleges that the CBG Board—of which Guinea is a
member—hosted a 2011 meeting in New York City at which
Guinea “announced its authorization and contract award to
[Nanko] regarding shipment of bauxite.” Prop. Second Am.
Compl. ¶ 22. That alleged authorization appears to be central
to Nanko’s theory of the case. For instance, it is that
authorization on which Nanko rests its claim that defendants
knew of but disregarded their contractual responsibility to deal
with Nanko to ship bauxite out of Guinea. The facts as Nanko
alleges them suggest that Guinea’s participation in the shipping
of bauxite falls within the FSIA’s commercial-activity
exception.
At this preliminary stage, based only on the pleadings, we
see no adequate basis for the district court’s dismissal of the
complaint under Rule 12(b)(7). With the benefit of discovery
and further briefing, as appropriate, the district court may wish
to revisit the Rule 19 issues. Further proceedings may help to

Page 9 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

10
clarify what interests of Guinea, if any, would be impaired in
its absence, what role Guinea would play in this litigation if
joined, and whether sovereign immunity prevents its
involuntary joinder here. See In re Papandreou, 139 F.3d 247,
252 (D.C. Cir. 1998) (district courts often must “look beyond
the pleadings” to decide whether an FSIA exception applies);
Ilan-Gat Eng’rs, Ltd. v. Antigua Int’l Bank, 659 F.2d 234, 242
(D.C. Cir. 1981) (“[T]he court failed to consider whether more
facts were needed before making the indispensable party
determination given the rather unusual situation before it.”).
III.
Our dissenting colleague would hold that the complaint
failed to state a section 1981 claim sufficient to withstand a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). We disagree.
Section 1981 protects the right “to make and enforce
contracts” free from racial discrimination, 42 U.S.C. § 1981(a),
and the pleading standards under section 1981 track those in
the familiar McDonnell Douglas rubric for alleging a prima
facie case of purposeful employment discrimination. See
Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)
(citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248
(1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)); Brown v. Sessoms, 774 F.3d 1016, 1022-23 (D.C. Cir.
2014) (citing McDonnell Douglas, 411 U.S. at 802-04). The
plaintiff’s initial burden “is not onerous.” Patterson, 491 U.S.
at 186. Further, discrimination against a business based on the
race of its owner violates section 1981. See McClain v. Avis
Rent A Car Sys., Inc., 648 F. App’x 218, 222 n.4 (3d Cir. 2016);
Gersman v. Group Health Ass’n, Inc., 931 F.2d 1565, 1567-70
(D.C. Cir. 1991), vacated on other grounds, 502 U.S. 1068,
reinstated, 975 F.2d 886 (D.C. Cir. 1992). Nanko alleges that

Page 10 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

11
Alcoa, aware of Diané’s race, treated the company he owns and
operates less favorably than similarly situated white-owned
companies. See, e.g., Prop. Second Am. Compl. ¶¶ 3, 17, 5768. By alleging those basic elements of a prima facie case of
intentional discrimination, Nanko raised its “right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007); see Brown, 774 F.3d at 1023
(plaintiff stated section 1981 claim where she “identified a
similarly-situated employee who is not in her protected class
and explained why she has equivalent qualifications”). The
burden at the summary judgment stage and at trial is different
and substantially more onerous than the pleading burden.
Allegations regarding comparators, racial comments, and
pretext obviously strengthen a discrimination complaint, but
the evidentiary requirements the dissent identifies are
inapplicable at the pleading stage.
We do not reach any of the other grounds, such as the
applicability of a mandatory arbitration clause in the CBG
Agreement, on which Alcoa moved to dismiss. The absence of
a putative required party is not a jurisdictional question. IlanGat Eng’rs, Ltd., 659 F.2d at 240. The district court
accordingly may decide to address those other grounds on
remand before or in tandem with further consideration of the
Rule 19 issue.
***
For the foregoing reasons, we reverse the district court’s
dismissal of the complaint and remand for further proceedings.
So ordered.

Page 11 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

BROWN, Circuit Judge, dissenting: The Court finds the
question whether the Foreign Sovereign Immunities Act
(“FSIA”) applies—and therefore whether jurisdictional
discovery is necessary—was properly presented to the district
court. Op. 8–9. Its opinion further holds the district court
erred in deciding Nanko failed to state a claim upon which
relief can be granted for violations of 28 U.S.C. §§ 1981 and
1985. Op. 10–11. I disagree on both points and respectfully
dissent.
I.
The district court specifically noted, “Plaintiffs do not
contest the assertion that Guinea is protected from suit by
sovereign immunity.” Nanko Shipping, USA v. Alcoa, Inc.,
107 F. Supp. 3d 174, 181 n.6 (D.D.C. 2015) (citing Nanko’s
opposition to Alcoa’s motion to dismiss). We, therefore,
review Nanko’s filings in the district court to determine
whether the court abused its discretion in finding the
argument forfeited. See GSS Grp. Ltd. v. Nat’l Port Auth.,
680 F.3d 805, 812 (D.C. Cir. 2012). It did not.
Nanko’s brief opposing the motion to dismiss contains
two relevant statements:
•

•

“Defendants claim that Guinea is an indispensable
party and further allege that because Guinea is a
foreign sovereign this Court lacks jurisdiction under
the Foreign Soverign [sic] Immunities Act, unless a
specified exception applies. This argument is a red
herring and meritless.
Contrary to Defendants’
contention, there is no basis for Guinea involvement
given the Technical Assistance Agreement . . . ,” and
“[w]hile Defendants may be correct in its [sic] view
that this Court lacks jurisdiction over Guinea,
Defendants miss two critical facts; as plead, the CBG
and the TAA are valid legal contracts.”

Page 12 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

2
Nanko Opp’n to Alcoa Mot. to Dismiss at 24–25, Nanko
Shipping, USA v. Alcoa, Inc., No. 14-cv-1301 (D.D.C. Sept.
25, 2014), ECF No. 11. These statements, read together and
in succession, discuss whether Guinea was an indispensable
party, mentioning the applicability of the FSIA only in
passing. Of course, reasonable minds may differ regarding
the precise interpretation of these statements, see Op. 8, but
the district court judge did not abuse her discretion in
concluding the FSIA issue was not contested. See Cement
Kiln Recycling Coal. v. EPA, 255 F.3d 855, 869 (D.C. Cir.
2001) (“A litigant does not properly raise an issue by
addressing it in a cursory fashion with only bare-bones
arguments.”).
The majority points to Nanko’s Motion for
Reconsideration filed before the district court, Op. 8–9, which
does appear to discuss the FSIA. Nonetheless, “[Federal]
Rule [of Civil Procedure] 59(e) motions are aimed at
reconsideration, not initial consideration.” GSS Grp., 680
F.3d at 812. Accordingly, a “Rule 59(e) motion may not be
used to . . . raise arguments or present evidence that could
have been raised prior to the entry of judgment.” 11 CHARLES
ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE
§ 2810.1, at 163–64 (3d ed. 2012). Since Nanko could have
raised its FSIA argument earlier, but chose not to do so, the
argument is forfeited. See District of Columbia v. Doe, 611
F.3d 888, 896 (D.C. Cir. 2010).
II.
The district court also properly dismissed Nanko’s claims
pursuant to 42 U.S.C. §§ 1981 and 1985 for failure to state a
claim upon which relief could be granted.
I agree with the Court’s starting premise: “Nanko alleges
that Alcoa, aware of Diané’s race, treated the company he

Page 13 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

3
owns and operates less favorably than similarly situated
white-owned companies.” Op. 10–11. Indeed, Nanko’s
complaint recounts multiple incidents, over a three-year
period, when Alcoa failed to award bids to Nanko and
awarded contracts to white-owned companies instead.
But, as the majority also notes, a Section 1981 claim
cannot “reach[] more than purposeful discrimination.” Gen.
Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 388,
391 (1982) (emphasis added). Accordingly, to plead a prima
facie case, a plaintiff must show the defendant intended to
discriminate against the plaintiff on the basis of race. See
Williams v. Lindenwood Univ., 288 F.3d 349, 355 (8th Cir.
2002); Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7
F.3d 1085, 1087 (2d Cir. 1993).
Nanko has failed to plead sufficient facts to carry that
burden here. In fact, no facts presented in the complaint
suggest Alcoa intentionally discriminated against Nanko on
account of race. Rather, Nanko states it is an AfricanAmerican owned company, see Prop. Second Am. Compl.
¶¶ 78–79, alleges Alcoa had done business with white-owned
Klaveness, id. ¶¶ 17, 80, and asserts “[Alcoa] imposed certain
unreasonable requirements, offered multiple limited shipping
opportunities in 2012 after telling Nanko that all such bid
opportunities had been contracted out and expressly stated
that their decision making process would be arbitrary and
subjective,” id. ¶ 82. Further, Nanko claims it used the “same
exact shipping companies” as Alcoa and also “attained equal
or lower shipping prices and similar assurances regarding
shipping security.” Id. ¶ 87. Indeed, all of Nanko’s factual
allegations are consistent with an arbitrary, but not racially
discriminatory, decision-making process. Everyone can be
characterized by race, and many contracting parties are
“harsh, unjust, and rude,” but a failure to do business with a

Page 14 of 15

USCA Case #15-7070

Document #1665351

Filed: 03/10/2017

4
particular African-American individual or company does not
automatically constitute a federal civil rights claim. See
generally Alfano v. Costello, 294 F.3d 365, 377 (2d Cir.
2002).
The inadequacy of Nanko’s pleading is hardly surprising.
Intentional discrimination may be relatively easy to plead via
comparator evidence—as Nanko apparently attempts to do—
in the employment discrimination context, where a plaintiff is
keenly aware of his coworkers’ performance and familiar with
his employers’ policies. See Brown v. Sessoms, 774 F.3d
1016, 1023 (D.C. Cir. 2014) (pleading the underlying facts
necessary to rely on comparator evidence in an employment
case). In the commercial context, however, it is often very
difficult to plead facts raising an inference of racially
discriminatory intent. See Denny v. Elizabeth Arden Salons,
Inc., 456 F.3d 427, 429–31, 435 (4th Cir. 2006) (finding a
viable § 1981 claim where an individual purchased a salon
gift card for her mother, but the salon refused service to the
mother, stating it did not “do black people’s hair”). This
difficulty is systemic, but it is not for this Court to remedy
policy deficiencies: “Trying to make [the statute] a cure-all
not only goes beyond any expression of congressional intent
but would produce satellite § 1981 litigation of immense
scope.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470,
479 (2006).
Accordingly, I would affirm the district court’s dismissal
of Nanko’s claims pursuant to 42 U.S.C. §§ 1981 and 1985
for failure to state a claim upon which relief can be granted.
See Nanko Shipping, USA v. Alcoa, Inc., 118 F. Supp. 3d 372,
377 (D.D.C. 2015); United Bhd. of Carpenters & Joiners v.
Scott, 463 U.S. 825, 833 (1983) (noting § 1985 “provides no
substantial rights itself”).

Page 15 of 15