Creek Red Nation, LLC et al v. Jeffco Midget Football Association, INC.
Filing
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ORDER granting in part and denying in part 18 Motion to Dismiss. Plaintiffs' third claim brought pursuant to 42 U.S.C. § 2000a is dismissed without prejudice. Plaintiffs' first, second fourth, fifth, and sixth claims remain. By Judge Christine M. Arguello on 03/30/2016. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-01087-CMA-KLM
CREEK RED NATION, LLC, and HIGHLANDS RANCH YOUTH FOOTBALL
ASSOCIATION, a non-profit corporation,
Plaintiffs,
v.
JEFFCO MIDGET FOOTBALL ASSOCIATION, INC.,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS (DOC. # 18)
Currently before the Court is Defendant Jeffco Midget Football Association, Inc.’s
(“JMFA”) Motion to Dismiss, which was filed on June 2, 2015. (Doc. # 18.) Plaintiffs
Creek Red Nation, LLC (“CRN”) and Highlands Ranch Youth Football Association
(“HRYFA”) responded to JMFA’s motion on June 4, 2015. (Doc. # 19.) JMFA did not
reply to Plaintiffs’ response. For the following reasons, JMFA’s motion is granted in part
and denied in part.
I.
BACKGROUND
CRN is “a group of six youth football teams primarily made up of minority
children.” (Doc. # 1 at 1 ¶ 2.) CRN alleges that, after four years of participation as a
member association, JMFA wrongfully expelled CRN. (Doc. # 1 at 2 ¶ 2.) To “save the
children of CRN from the expulsion,” HRYFA—another participating member of JMFA—
“immediately took in the CRN teams so that the CRN teams could play in JMFA under
the HRYFA banner.” (Doc. # 1 at 2 ¶ 2.) Plaintiffs allege that JMFA “then expelled all
24 HRYFA teams, in order to keep out the CRN teams.” (Doc. # 1 at 2 ¶ 2.) Plaintiffs
allege that JMFA’s actions were based on racial animus. (Doc. # 1 at 6 ¶¶ 32-38.)
In their complaint, Plaintiffs allege violations of 42 U.S.C. § 1981 (claim one), 42
U.S.C. § 1985 (claim two), 42 U.S.C. § 2000a (claim three), and Colo. Rev. Stat. § 2434-601 (claim four), as well as claims for breach of contract (claim five) and breach of
the covenant of good faith and fair dealing (claim six). (Doc. # 1 at 9-12 ¶¶ 58-80.)
II.
ANLAYSIS
JMFA moves to dismiss Plaintiffs’ complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(1) provides that a
complaint may be dismissed for “lack of subject-matter jurisdiction.” Fed. R. Civ. P.
12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of the plaintiff’s
claim. Instead, it is a determination that the court lacks authority to adjudicate the
matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing that
federal courts are courts of limited jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing subject-matter jurisdiction
is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906,
909 (10th Cir. 1974).
Rule 12(b)(6) provides that a complaint may be dismissed for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to survive a
motion to dismiss under Rule 12(b)(6), the plaintiff must set forth “enough facts to state
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a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). When ruling on a motion to dismiss, the court must accept as true the
factual allegations contained in the complaint, but it may not rely on mere conclusions.
Id. at 555.
A.
Whether Plaintiffs have standing to bring claims for the alleged
violations
JMFA contends that Plaintiffs lack standing to bring claims under 42 U.S.C. §§
1981, 1985, and 2000a because “they do not allege any immediate or threatened injury
to their members, who are the holders of those claimed civil rights.” (Doc. # 18 at 4.)
Instead, according to JMFA, “Plaintiffs allege only injury to the organizations themselves
as a result of their expulsion from [JMFA].” (Doc. # 18 at 4.)
A challenge to a plaintiff’s standing to bring a particular claim is properly raised in
a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. The Court
construes JMFA’s motion as a facial challenge to Plaintiffs’ complaint. “In addressing a
facial attack, the district court must accept the allegations in the complaint as true.”
United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001).
“[T]he term ‘standing’ subsumes a blend of constitutional requirements and
prudential considerations.” Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). To establish standing
under Article III of the United States Constitution, a plaintiff must show: (1) that he or
she has personally suffered an injury in fact; (2) that the injury is fairly traceable to the
challenged action of the defendant; and (3) that it is likely, not merely speculative, that
the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504
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U.S. 555, 560-61 (1992). Beyond these constitutional requirements, a plaintiff must
also satisfy the following prudential principles: (1) the plaintiff generally must assert his
or her own legal rights; (2) the court must refrain from adjudicating “generalized
grievances”; and (3) the plaintiff’s complaint must fall within the zone of interest to be
protected or regulated by the statute or constitutional right in question. Mount Evans
Co. v. Madigan, 14 F.3d 1444, 1450-51 (10th Cir. 1994).
An organization may, in some situations, have standing to bring claims on behalf
of its members. In order to have “organizational standing,” the organization must
demonstrate (1) that its members would otherwise have standing to sue in their own
right; (2) that the interests the organization seeks to protect are germane to the
organization’s purpose; and (3) that neither the claim asserted nor the relief requested
requires the participation in the lawsuit of the individual members. Hunt v. Wash. State
Apple Adver. Comm’n, 432 U.S. 333, 342-43 (1977).
JMFA argues that Plaintiffs lack “organizational standing” because they “do not
allege that their expulsion from JMFA has caused their members any immediate or
threatened injury as a result of JMFA’s actions, but rather that JMFA’s actions have
caused the organizations themselves immediate or threatened injury because CRN
teams will be forced to break up.” (Doc. # 18 at 7 (emphasis in original).) JMFA further
argues that the individual members would lack standing to sue in their own right
because, individually, they are not prohibited from playing football in JMFA. (Doc. # 18
at 7.)
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In response, Plaintiffs argue that they have in fact alleged harm to their
members. (Doc. # 19 at 2.) Plaintiffs point to their allegation that, if CRN and HRYFA
are not permitted to play in JMFA, “HRYFA will have to break up all six of the CRN
teams and most of the approximate 18 HRYFA teams or leave some of the children off
of each team.” (Doc. # 1 at 19 ¶ 55.) Plaintiffs argue that, if their teams are broken up
or certain players are left off teams, “it is reasonable to infer that the separated and
abandoned children will suffer emotional and psychological harm” due to the “lost
relationships with players, coaches, and other team officials,” as well as “the loss of joy
from not being able to practice and play with the players and for coaches with whom
they have developed relationships over multiple seasons and years.” (Doc. # 19 at 2.)
The Court agrees with Plaintiffs. The facts, as alleged by Plaintiffs, lead to the
reasonable conclusion that the individual players will be harmed by being wrongfully
denied the opportunity to play football with the teams and individuals of their choosing.
The Court rejects the argument that the individual players will not suffer harm because
they can nevertheless play for a different team. Such reasoning strikes the Court as too
similar to the discarded belief that discrimination is not harmful if an “equal” alternative
exists. The discrimination itself is the harm. Thus, the Court finds that, contrary to
JMFA’s argument, Plaintiffs have sufficiently alleged harm to their individual members.
Furthermore, the Court notes that, in addition to having standing to assert claims
on behalf of their members, Plaintiffs also have standing in their own right to seek
judicial relief from injury to themselves and to vindicate whatever rights and immunities
the organizations themselves may enjoy. See Warth v. Seldin, 422 U.S. 490, 511
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(1975) (“There is no question that an association may have standing in its own right to
seek judicial relief from injury to itself and to vindicate whatever rights and immunities
the association itself may enjoy.”)
B.
Whether Plaintiffs state a claim under 42 U.S.C. § 1981
42 U.S.C. § 1981 guarantees equal rights under the law to all persons within the
jurisdiction of the United States. Subsection (a) of the statute specifically enumerates
the following rights as protected: the right to “make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and proceedings for
the security of persons and property.” 42 U.S.C. § 1981(a). Subsection (c) provides
that the rights enumerated in subsection (a) “are protected against impairment by
nongovernmental discrimination and impairment under color of State law.” 42 U.S.C. §
1981(c).
JMFA argues that Plaintiffs fail to state a claim for relief under 42 U.S.C. § 1981
because Plaintiffs do not allege that JMFA was acting “under color of State law.” (Doc.
# 18 at 7-10.) To support this argument, JMFA interprets 42 U.S.C. § 1981 to apply
against only “nongovernmental actors who are acting under color of State law.” (Doc. #
18 at 8.)
In response, Plaintiffs argue that 42 U.S.C. § 1981 protects against “two sets of
harm”: (1) impairment of rights by nongovernmental discrimination; and (2) impairment
of rights under color of State law. (Doc. # 19 at 4 ¶ 19.) Thus, according to Plaintiffs,
they are not required to allege that JMFA was acting under color of State law because
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JMFA is nonetheless subject to the statute as a nongovernmental actor. (Doc. # 19 at 5
¶ 22.)
The Court agrees with Plaintiffs. In Hampton v. Dillard Dept. Stores, Inc., 247
F.3d 1091, 1102 (10th Cir. 2001), the Tenth Circuit set forth the elements of a § 1981
claim as follows: “(1) that the plaintiff is a member of a protected class; (2) that the
defendant had the intent to discriminate on the basis of race; and (3) that the
discrimination interfered with a protected activity as defined in § 1981.” There is no
requirement that the defendant was acting under color of state law. Indeed, in
Hampton, there was no allegation that the defendant—a private company—was acting
under color of state law. Therefore, in the present matter, Plaintiffs are not required to
allege that JMFA was acting under color of State law as JMFA argues.
C.
Whether Plaintiffs state a claim funder 42 U.S.C. § 1985
42 U.S.C. § 1985 protects an individual from conspiracies to deprive him or her
of “the equal protection of the laws, or of equal privileges and immunities under the
laws.” 42 U.S.C. § 1985(3). To state a claim under 42 U.S.C. § 1985(3), a plaintiff must
show the following: (1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of laws, or of equal
privileges and immunities under the law; (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property or deprived of any right or
privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 91
(1971). 42 U.S.C. § 1985(3) has been interpreted to apply to private conspiracies. Id.
at 101. In addition, the statute has been interpreted to require “some racial, or perhaps
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otherwise class-based, invidiously discriminatory animus behind the conspirators’
actions.” Id. at 102. “The conspiracy, in other words, must aim at a deprivation of the
equal enjoyment of rights secured by the law to all.” Id. The Supreme Court has
interpreted 42 U.S.C. § 1985(3) to protect the right to be free from racial discrimination,
among other rights. Life Ins. Co. of North Am. v. Reichardt, 591 F.2d 499, 503 (9th Cir.
1979) (citing Griffin, 403 U.S. at 97).
JMFA argues that Plaintiffs fail to sufficiently allege a “conspiracy” because they
fail to allege either “a combination of two or more persons acting in concert and an
allegation of a meeting of the minds, an agreement among the defendants, or a general
conspiratorial objective.” (Doc. # 18 at 11.) Instead, according to JMFA, “the only
JMFA officer that Plaintiffs allege participated in the alleged conspiracy is its president,
Jeff Glenn,” and “JMFA cannot conspire with itself via only one officer.” (Doc. # 18 at
11.) In addition, JMFA argues that Plaintiffs have not properly alleged that they or their
members were deprived of any “privilege” or “immunity” under the law because “playing
football for a voluntary association is not a constitutionally protected ‘right or privilege.’”
(Doc. # 18 at 11.)
In response, Plaintiffs argue that their complaint “identifies several votes by the
member-associations [of JMFA] adverse to CRN and HRYFA.” (Doc. # 19 at 9 ¶ 45.) In
addition, Plaintiffs point out that they allege in their complaint that prior to the April 28,
2015 vote to expel HRYFA “JMFA held a secret meeting on a Sunday, at which JMFA
planned the expulsion of HRYFA.” (Doc. # 19 at 9 ¶ 47.) Plaintiffs argue that “[i]t is a
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reasonable inference that more parties than Jeff Glenn attended the meeting, including
multiple member-association representatives.” (Doc. # 19 at 9 ¶ 48.)
The Court agrees with Plaintiffs. The facts, as alleged by Plaintiffs, lead to the
reasonable conclusion that two or more persons acted in concert to perform the alleged
improper acts. In addition, the Court believes that Plaintiffs have sufficiently alleged that
JMFA’s member-association representatives conspired to deprive Plaintiffs of their right
to be free from racial discrimination, a right that is protected by 42 U.S.C. § 1985(3).
See Griffin, 403 U.S. at 97.
D.
Whether Plaintiffs state a claim under 42 U.S.C. § 2000a
42 U.S.C. § 2000a protects an individual’s “full and equal enjoyment of the
goods, services, facilities, privileges, advantages, and accommodations of any place of
public accommodation . . . without discrimination or segregation on the ground of race,
color, religion, or national origin.” 42 U.S.C. § 2000a(a). The statute explicitly identifies
each the following “establishments” as a “place of public accommodation” within the
meaning of the statute if “its operations affect commerce or if discrimination or
segregation by it is supported by State action”: “any . . . sports arena, stadium or other
place of exhibition or entertainment.” 42 U.S.C. § 2000a(b)(3). The statute is
applicable to an organization but only when that organization is affiliated with a place
open to the public and membership in the organization is a necessary predicate to use
of the facility.” Clegg v. Cult Awareness Network, 18 F.3d 752, 756 (9th Cir. 1994).
JMFA argues that “Plaintiffs fail to state a claim for relief under § 2000a because
JMFA is not a ‘place of public accommodation.’” (Doc. # 18 at 13.) Instead, JMFA
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asserts that it is a “private, non-profit organization expressly excluded from the
[provisions] of § 2000a.” (Doc. # 18 at 13.) In addition, JMFA argues that it “has no ties
to any particular facility or establishment, its operation does not affect interstate
commerce, and its activities are not support by State action.” (Doc. # 18 at 13.)
In response, Plaintiffs argue that JMFA can be considered a “place of public
accommodation” because it is “affiliated with ‘parks and fields throughout the
metropolitan area.’” (Doc. # 19 at 5 ¶¶ 24-25.) Plaintiffs assert that “[t]he games occur
on playing fields, which qualify as a type of place that is identified as a ‘place of public
accommodation’ by 42 U.S.C. § 2000a(b)(3) (i.e., sports arena, stadium, or other place
of exhibition or entertainment).” (Doc. # 19 at 7 ¶ 32.)
Multiple federal courts have held that Title II of the Civil Rights Act of 1964 (which
includes 42 U.S.C. § 2000a) “governs membership organizations that are closely
connected to a facility or structure.” See Welsh v. Boy Scouts of Am., 993 F.2d 1267,
1272 (7th Cir. 1993) (citing cases). In each of the cases identified in Welsh, “Title II was
found applicable because the organization conducted public meetings in public facilities
or operated facilities open to the public, like swimming pools, gyms, sports fields and
golf courses.” Id. Although not binding, the case United States v. Slidell Youth Football
Ass’n, 387 F. Supp. 474 (E.D. La. 1974), involved facts similar to the matter at hand. In
Slidell, the court enjoined a youth football association’s “racially discriminatory activities”
and ordered it to “eliminate the effects of their past discrimination” in an action brought
by the United States under Title II. Id. at 486. The court found that the facility owned by
the youth football association was a “place of public accommodation” because it
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constituted a “place of entertainment,” as that phrase is used in 42 U.S.C. §
2000a(b)(3). Id. at 483. Also of note, the court in Slidell found that the youth football
association was not a “private club” because participation in it was open to the public.
Id. at 486.
However, a critical element present in Slidell has not been alleged here: whether
the defendant’s actions affect interstate commerce. In Slidell, the court found that the
football equipment that the youth football association provided to the players “was
manufactured outside the State of Louisiana.” Id. at 484. This finding was necessary to
satisfy § 2000a’s requirement that place of public accommodation’s operations affect
interstate commerce. 42 U.S.C. 2000(a)(b). Plaintiffs here have not alleged that
JMFA’s operations affect interstate commerce. Neither have Plaintiffs alleged that the
“parks and fields throughout the metropolitan area” in which JMFA operates affect
interstate commerce. See, e.g., United States v. Allen, 341 F.3d 870, 877 (9th Cir.
2003) (identifying the ways in which a public park affected interstate commerce).
If interstate commerce is not affected, the requirements of 42 U.S.C. § 2000a can
be satisfied by a showing that the place of public accommodation is “supported in [its]
activities by State action.” 42 U.S.C. § 2000a(b). Plaintiffs fail to sufficiently allege that
JMFA’s activities are supported by State action. It is insufficient for Plaintiffs to claim
that “JMFA is affiliated with ‘parks and fields throughout the metropolitan area.’” (Doc. #
19 at 5 ¶ 25.) A nongovernmental organization’s use of public property alone may not
suffice to show State action. See, e.g., Reinhart v. City of Brookings, 84 F.3d 1071,
1073 (8th Cir. 1996) (“[T]he fact that a private organization was temporarily using public
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property [does not] transform its actions into state action.”); United Auto Workers, Local
No. 5285 v. Gaston Festivals, Inc., 43 F.3d 902, 910 (4th Cir. 1995) (“The possession of
a permit to perform on public property what are ordinarily private functions does not
convert the permit holder into a state actor.”).
Therefore, the Court finds that, because Plaintiffs have not sufficiently alleged
either an effect on interstate commerce or the support of State action, Plaintiffs have
failed to state a claim under 42 U.S.C. § 2000a, and such claim is properly dismissed
without prejudice.
E.
Whether Plaintiffs state a claim under Colo. Rev. Stat. § 24-34-601
Like 42 U.S.C. § 2000a, Colo. Rev. Stat. § 24-34-601 protects against
discrimination in places of public accommodation. In its motion to dismiss, JMFA
argues that “Plaintiffs’ claim for violation of C.R.S. § 24-34-601 fails for reasons similar
to their claim under 42 U.S.C. § 2000a.” (Doc. # 18 at 13.) JMFA also argues that
Colo. Rev. Stat. § 24-34-601 “is clearly limited to ‘places’ and JMFA is not in fact a
‘place.’” (Doc. # 18 at 14.) JMFA states in its motion that “[i]t does not appear that any
Colorado or federal courts have had occasion to consider what constitutes a ‘place of
public accommodation’ under C.R.S. § 24-[3]4-601.” (Doc. # 18 at 14.)
The Court looks to federal law to assist it in determining what constitutes a “place
of public accommodation” under Colo. Rev. Stat. § 24-34-601. See, e.g., Colo. Civil
Rights Comm’n v. Big O Tires, Inc., 940 P.2d 397, 399 (Colo. 1997) (finding federal law
“particularly helpful” in approaching employment discrimination case under state law
because “the language of the Colorado statute at issue . . . closely parallels that of its
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federal counterpart”). As discussed in the previous section, multiple federal courts have
found Title II applicable to organizations that “conducted public meetings in public
facilities or operated facilities open to the public, like swimming pools, gyms, sports
fields and golf courses.” See Welsh, 993 F.2d at 1272 (citing cases). Federal courts
have also found that the Civil Rights Act “is to be afforded a liberal construction in order
to carry out the purpose of Congress to eliminate the inconvenience, unfairness, and
humiliation of racial discrimination.” United States v. Beach Assocs., Inc., 286 F. Supp.
801, 808-09 (D. Md. 1968).
The Court believes that it is proper to give Colo. Rev. Stat. § 24-34-601 a
similarly “liberal construction.” The Court finds that, like its federal counterpart, Colo.
Rev. Stat. § 24-34-601 applies to organizations that conduct activities in facilities, such
as parks and sports fields, that are open to the public. Importantly, Colo. Rev. Stat. §
24-34-601 does not include the interstate commerce/State action requirement of 42
U.S.C. § 2000a. Therefore, the Court concludes that Plaintiffs have stated a claim
under Colo. Rev. Stat. § 24-34-601.
F.
Plaintiffs’ remaining state law claims (breach of contract and breach
of the covenant of good faith and fair dealing)
Lastly, JMFA argues that “because Plaintiffs’ federal claims must all be
dismissed for lack of subject matter or failure to state a claim, Plaintiffs’ state law claims
should also be dismissed without prejudice.” (Doc. # 18 at 15.) However, this argument
fails because the Court has not dismissed all of Plaintiffs’ federal claims.
III.
CONCLUSION
Thus, for the foregoing reasons, it is hereby
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ORDERED that JMFA’s Motion to Dismiss (Doc. # 18) is GRANTED IN PART
AND DENIED IN PART. Plaintiffs’ third claim brought pursuant to 42 U.S.C. § 2000a is
dismissed without prejudice. Plaintiffs’ first, second fourth, fifth, and sixth claims
remain.
DATED: March 30, 2016
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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