Flournoy v. CML-GA WB, LLC et al

Filing 48

ORDER denying Defendants CML-GA WB, LLC and Rialto Capital Advisors, LLC's 11 Motion for Judgment on the Pleadings. Signed by Magistrate Judge Brian K. Epps on 05/15/2015. (jah)

THE T'NITED STATES DISTRICT COURT FOR TIIE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

IN

C.

PATRICIA

FLOURNOY.

r-Lcr-L.rrL.L!r,

14
cv 1- - 161-

*

v.
CML-GA WB, LLC. RIALTO CAPITAL
ADVISORS, LLC, REX PROPERTY &
LAND, LLC, and PAUL GREGORY
KING,

Defendant.s

ORDER

on ,fuly

complaint

instants
tsrrr rref
E
!J

rrsr r i n.r
qpr Y

l- r'l

the

!

Capital-

is

the

is

Defendant

mot.ion

reasons

trr

her

set

("Riafto")

for

judgment
below,

forth

42 U.S.C.

hrecause

of

her

S 1981
Now

race.

CML-GA WB, LLC (*CML") and Rialto

LLC

Advisors,

DefendanLs")
For

r.rrrrnpr^j- \/

renf

f il-ed the

C. Flournoy

violated

Defendants

alleging

Court

before

Patricia

2ol-4, Plaintiff

29,

(coIlectively,

(doc.

pleadings

on

the

the

Rialto

Rialto

"the

Defendants'

11).
motion

DENTED.

I.

The

legal

standardg
motions

Procedure

12(c)

1 , /l^') f 6l

m^f i .rnq

j-.o

applicable
for

dismiss

to

j udgirrent on
are

the

Federal
the

Rule

pleadings

salne.

Roma

of

Civil

and Rule
Qlr.tdoor

creFfi()ns.

Tnc.:.

^s
^..-*j-f?L\-LIrL'l'L-Lrry

c r L L'Y
--L - -

v-

1284 (N.D. Ga. 2OOB) ("A motion
subiect

to

d.iqmiss

,, 1

mot.ion

to

Ieoal

aLl- facts

affeged

inferences

in

^^rrrt-

as

on its

n^l

onfy

its

face.'"
544,

"factuaL

content

inference

that

allegred, "

ld.

well-pled

a cfaim

to

(citing

678

(citing

Durma Pharm.,

the

court

see
2002).
J

rs9or

v.

:l-^-^^

v.

is
to

draw
for

"

Broudo,

h i r.''

'lrLr^ml^]r'

544 V.S-

v.

required
the
the

no probability

is

there

Corp.

matter/
plausible

is

that

AtI.

1iabIe

is

defendant

Inc.

as true

factuaf

relief

The pfaintiff

allows

L^

416

Ashcroft

facts.

BelI

rnt-F

tests

Cir.

r u n L ' n lr: a n r r q
l - r m P i f t' L

sufficient

\\ < ^ma+

nvopsr s ri rl rrui J r l l v [l wf+V' ,
i )
y '
v

it

plaintiff.

the

l-ho

uuu!F-

state

Afthough

will

reasonable

1-225 (11th

1222,

'to

the

a

RhodeS,

alf

consLrue
to

"contain

that

liKe

(2009).

57O (2oo7\t.

550 U.s.

and

must

at

to

Rather,
v.

is

mot.ion

courL mrrst accept

afso

Id.

1283,

plaintiff

the

case.

favorabfe

nood

.A

nlae..linos-

SCheur

the

compfaint

662, 677-79

as true,

the

^^mhlaint-,

most

light

true,

complaint

accepted

of

Ramsey, 3L2 F-3d

Iqbal , ss5 U.S.
A

the

hntrarrar

concfusions

fha

<r,r
ouyyh ^ .

12(b) (6)

Rule

whether

Therefore,

in

the

Hoffman-Pugh v.
'Fl-ra

n€

(1974) .

236

a

-ha

test

merits

on the

srrfficjp13.r

IJ.S. 232,

not

does

prevail

is

jrrnlrnanl-

mof i^-

dismiss,

ultimatel-y
fhe

,A

E !.

j udgment on the pleadings

for
as

same standard

the

trtro

\'a .

,

Twombly,
to

pfead

reasonabfe
misconduct

requirement
l-ro rr an

EE^

rr

at

rl

c

1r

c56-57

336, 347 (2005) )

When, however,
of

construction
the

support

on

basis

the

f actual-

the

of

cause

1536, 1539 (11th Cir.

Karisma
care

Hair

Broad

street,

Riafto

"is

conLrol-s,

for

the
and

Property")

naf

was, at

JB Whites building,
an

agent

contends
a-MT.-r:A

"acted

I
a-n o

as

complaint

the

Martin

no

will

compLaint

is

922 F,2d

Cnty,,

woman, owns and operates

two

Georgia,

and

making

decision

pav

An/l.nt-

Ffournoy

authority
.\r

Dr^harf

been

the

and

an

f .1r

agenr

Rav

T.ih.l

leasing

pr. nar
- - -\q - _r-\ /r

| , l "
L r

Rex Properry,

of

1,

at

936
lhat

it

owns/

cML-GA WB."
T.T.a-

agent

and Defendanr Pauf G-regory King
h r.n l-t - . , or
c

Doc.

affeges

over
,(.

hair

a

l-ocated

CML-GA WB,

times,

al-l- relevant

building
Ms.

member of

has

(Compl .,

decades.

".TB whit.es"

the

and

urhn

RiaIro

1\\Fov

for

the

(t'Mr- King")
Me

.

F
- ,l .-\u r n o y

Capital

,

and

i^]F.I

civen

t.he success

a racially

diverse

a

that

studio

(Id.

v.

Georgia,

more than

managing
has

of

Iaw,

BACRGROI'ND

Augusta,

Augusta,

( r d . t T ' |4 l- s . )
|

was

in

cML owns

8. )

the

of

1 9 9 1 - ).

Studio

professionaf

tlfl 3,

Inc.

an African-American

Ffournoy,

of

dismissaf

100,

issue

dispositive

affegations

II.

Ms.

a

action,

see Executive

appropriate.

of

tl1 9-10.)

client.

wou]d
In

of

that

the

Karisma

base,

affow

Ms. Flournoy

her

search,

Hair

space

to

Ms. Flournoy

Studio,

which

boasts

began searching
expand

her

for

salon.

met wiLh Ms. Andrea

1)

real

a

Carr,

)n1)

to

options

,JB Whites

Ms.

Carr

JB whites

that

on Decenlcer

interest

within

3l-,
the

r -L 6 n

hr^-aarieri

Flournoy

wit.h

a bl-ueprint

F]ournoy
l-ocated.

(rd.

like

woul-d

After
contact

needed to
the

JB

Ms.

submit
Whites

inquired

as

responded

that

that

calf,

time

'tMs.

something
At

the

space

pl-umbing

and

rental-

and

credit
After

out

Ms.

with
like

to

a par.ticular

Ms

space

Ms. carr

fl 13.)

n'i ans.

a

and Ms.

Cerr

nrnr|i

and discussed

electrical

dpd

MS.

where Ms.

outl-ets

!o

be

u 14 . )

several

from

(rd.

and Lhe

she would

that

tWO

fl 12.)

checked

the

of

building

(Id.

ar:d identified

wi f h

r.rFqenj-Fd

submitted

building.

building.

on August

background

indicated

2012

E'l ^1,rh^\r

a

everyEhing

Ms. Flournov

credit.

Theater

for

the

f'arr

Ffournoy

Ms.

$50.00

indicated

Ms

fmperial-

the

with

space in

Rex Property,

mraj-in.r

(fd.)

along

Ffournov's

of

-

buildinq.

for

move in

fhat-

Tn

Flournoy

Ms.

application,
check,

\

by

empfoyed

al 11

f Tsd
\ r .

.

agent

estaEe

to

Ms.
Carr
soon'

an unspecified

weeks of
Ms.

Carr,

Ms.

buil-ding.
why

a

plan

informed
with

in

Ms.

order

pl-an

was

to

met

with

Ms.

respect

t.ime thereafter,

When

Ms.

the
Carr

Fl-ournoy
to

rent

necessary,

request

the

Ms.
plan.
in

that

she

King

any

"that.

she

space within
Ms.

Flournoy

Carr

simply

(Id.)

After

person,

application."

Mr.

without

F]ournoy

to

(rd. fl 1s.)

"

she was told
Flournoy

informed

Carr

a business

prodding

Fl-ournoy's

at

which

would

'know

(Id.

calJ-ed Ms.

fl 16.)

Fl-ournoy

and

said

residents

the

of

Ffournoy

Ms.

not

r,: l l

him

wh.i r"h

while,

rent

t.he

business

Ms.

space

Al-l- the

in

consul-tant,

pl-an.

(Id.

meeting

with

Ms.

the

schedule
that
the

"Ms.

pfan's

Ms.

di d .

King

Mr

brrf

of

afl

visited

requesled

King

and

the

was apparently

Ftournoy

rti nrr

Flournoy

,fB whites

CFrr

carr

sufficient.

"

to

that

di rt

Ms.

n.\i

return

her

int.ent

Maness
to

plan

Ms.

be able

to

due to

her

credit

score."

r.'L!' h6*

previously

statement,
^FA/ri I

Ms.

Carr

to

responded

rent. space wit.hin
(Id.

Ms. Flournoy

fl 20.)

contacted

d^ore

was

not

that

her

credit

score

not

reLurn

the

indicated

tl 21.)

(fd.)

Ms.
Carr

Carr

did

a

after

content.

contacted

which

hired

business

a

a business

not

aback by this

i norri re
9

prepare

to

required

any

plan,

the

She

buildinq.

Maness,

Ms.

with

l-ikel-y

would

(Id.

Whites

discuss

review

+rr\49+!

had

JB

Maness prepared

Ms.

building

taken
'.f o
9v

Ehe

Carr

to

moved f orward

Fl-ournoy

compfetion,

a time

Apparently
Ms -

she

Mr.

Catherine

fl 19.)

Upon

and

Ms.

cfients

Mr.

the

(Id. )

the ca1l.

to

.| 18.)

service
white[,]"

services

thereaft.er,

time

coul-d

predominately

salon

(Id.

this

at

her

Shortl-y

St.udio.

present

F'l lrrrrnmr

that

who

tenant

who are

building,

tl 17.)

Hair

safon

a

responded

(Id.

races.
Karisma

wanted

"he

an

issue

when

was
call

(rd. )
November 2012,

Around
r^ec,a i rri ncr

nr)

rFqn.lr]Se

f IOm

Ms.
MS .

Flournoy
CaI.f

-

and

Ms.

rri si j- cd

Maness Pa1.

after

pr.rr_rarl!
4 v!,vl

9

\/, 9
s
-t,

in

office
(Id.

Augusta,
The

met

tT 22.)

annoyed by
(1)

their

Fl-ournoy's
(3)

Ms.

s..)rc.

to

space

rents

circumstances.

Ms.

Flournoy

buil-ding
tenants
l-evel

of
of

s.-ore

was.

within

f.hat

and
JB

the

the

Ms.

Carr

"he

did

that

Whites

King
Ms.

that

space,

and,

previously

not

she

what

care

woufd

building

credit

,fB Whites

the

were

buil-ding

scrutiny,

a]lowed

to

not

under

be
any

white

subjected

submitting

t.enants

space within

"many

were not

as

commercial

rent

and

scores//

buiLding
such

"

"many white

that

contends

lower

with

i n d i r - : a fe r i

stated

rent

that

Mr.

be

(Id. )

"

,JB whit.es

the

him

informed

eredi i

allowed

of

Fl-ournoy

Flolrrnov's

Ms.

to

seemed to

meeting,

(21

p1an,

business

was insufficient.

score

i-hF r-r.cdiI

the

During

plan.

business

*who

King,

Mr.

(Id.)
the

the

deliver

with

visit."

credit

ennrnrrpd

two

t.o review

refused

after

to

Georgia

a

the

commercialto

the

business

same
plan.

( r d . ! l t T2 3 - 2 4. ' )
Ms.
of

Flournoy

action

DefendanLs

l-0.)

for

flr'l lv

her

then

f il-ed

hrri cf Fd

42

their

same day,

judgment

compl-aint

of

violation

On the

motion
been

-

fifed

the

on
i s

the

ri ne

November

on

Rialto

Defendants

pleadings
ihe

Collt-t,

(doc.
s

3,

filed
11)

review.

one cause
The

S 1981.

U.S.C.

answer

fc)r

just

asserting

Riaf to

2Of4,

(IJOC.

the

inscanc

which,

having

DISCUSSION

III.

The Ria]to
to

al-lege

facts

sufficient

discriminationl

intentional
Rialto

Defendants

lacking,
state

a

Rial-to

Rial-to

Def end.ants

Lvtlll

^aci

point

to

roe

the

states

t- ^

Flournoy
(1)

engaged in
between

principal/agent

Fl-ournoy

In

the

of

an

relationship

Ms.

S 1981.

faifed

was that

King

that

has

they

refationship

and Mr.

argue

them under

Ms.
that

the

a

Defendants

which

and Rex Property,
f aMT.l

(2)

With

against

claim

establish

and

contractor.

the

to

that

and Rex Property

Defendants

independent

contend

cannot

regard,

this

Management Agreement2

the

between

CML

that

vlrYsYv

f Parc

p1..1nartr.'l
!

!vl/e!

el

r<1

r

^n

certain
management
contractor
to provide
independent
to
respect
JB white
serv.ices
for
[the
[cML] with
Property]
and [cML] shal-l- not
buildlingl
[Rex
partners
venturers,
or agents of
be construed as joint
pursuant
Agreement,
and neither
to
this
each other
power to bind or obligate
the other
shalf
have the
In all
respects,
the
except
as set
forth
herein.
to IcML] under this Agreement
status of [Rex Property]
is that of an independent contractor.
1

M6. FLournoy does not
The RiaLto
Defendaris'
lirst
argument is that
in the decisior
not to lease the subject
that they had any involvement
allege
property or chat they interfered
v,7ith Ms. F-ournoy's r-qhL Lo make or enfo-ce
(Doc. lL at 6.)
Liability
under S 1981, however, may
a contract
in any way.
vicarious
liability.
through
See Long v. Aronov
be imputed to an employer
Thus,
Realty Mgmt., Inc.,
645 F. supp. 2d 1008, 1033 n.54 (M.D. Ala. 2009).
Defendants'
on the Rialto
main argument: that
the Court focuses its attention
\rith
Mr. King or Rex ProperLy
they had no agency or emplolrment relationship
sufficienL
Lo impose vicarious
liability.
2

judgmenc
The Court may, on elther
to dismiss
for
a motion
or a motion
consider
attached
to
the pleadings
withouL
on the pleadings,
a document
the motion
summary judgment
where the attachment
is
converting
to one for
claim;
and (2) undisputed."
central
to the plaintiff's
"(1)
Because the existence
Feldt,
304 F-3d 1125, 1134 (1Lth cir.
2OO2).
of an
is
independent
contractor
informed
by the
contract
or agency relationship
'anguage, and IVls. I -oLrnoy's c oins aoa-Lnsr t\e Ria.!o Deferoan!s are based
entirFlv
fhe Court finds the document to be cenLral to hex claims.
B1 s^

Ms

Accordingly,

Fl.lrrrn.)w

the

court

dlrFe

finds

n^l-

its

d i snrr|-p

fhr

consideration

alrfhent-

on this

i..i

trr

motion

.lf

l-hF

d.rcument.

appropriate.

(Doc.
naf
ra.r:

10,

Ex.

q

an.l^rrj-

A

at

ararrrF

].d i T1.r

l.ha

1,

l crrcl

refat'ionship.

Dznnorrrr'e

frrrt-

E l.-\rrrn^r;'

r^

qrrhh^rr-

har

h.a<

l

71^f

i l1f 1rran.'a

cite

language

from

authority

a

ad

l-rrr

l- hc

principaf/agent

a

any

l f .\

f a..f

avarl-

create

they

pi.e

f ha

^la,.l

woufd

that

disclaims

that

Tn

^^hr-

Of

Indeed,

Agreement

\

M<

i'hat

Defendants

Riafto

A-'1

or

the

ManagemenE

controf

over

Rex

amn l

hire,
train,
Property]
wil-lsupervise/
[Rex
pay, and discharge
direct
the work of,
al-l- personnel
the
necessary
for
operation
of
Management
the
Such personnel
shal-l in every instance
be
Functions.
and not of
empl-oyees of
[CML] .
[CML]
lRex Propertyl
have no riqht
or
shafl
t'o supervi-se
direct
such
empfoyees .

M<

which
fha

Fl.)rrrn.)r/

she

is

aware

l.al^fi^n<hin

at

Rex Property

fhej-

this

hofr"raon

control

significant

for

reqn.rndq

was the

earl-y
lu-r hsa
r

over

Pqr

with

certaj-n

expenses

S 2.3);

(2)

Rex

leasing

CML (Id.,

leases

Ex. A a!

be

8.)

(3)

by

el

litigation

nl u L L a !]r \) /'
r :mL

fa.l-_S

of

regarding
pi.ll-^

t-hrf

JB Whites
King

I

r---

building,

was an

agent

Taking a cue from the Rialto
language in

which

approved

prepared
1) ;

in

I ecred

and Mr.

agent,

Property,

must

-

s-

al

CML, CML owns the

Defendancs, Ms. Fl ournoy a-Iso cites
Agreement

has

stage

r \ a r f i a fc
L

(Doc. 14 at

Rex Property.

shc

by

staLes,

inter

CML (Doc.

Rex Property

CML retains

CML's Management

must

(1)

afiaz

10,
be

sofe discretion

Ex.

A

at

signed

by

regarding

the
and

(4)

for

cash management system
alf

bank

Rex Property

(rd. ) .

Mq

T lfr

to

SLL'Pf vy

employer,

'.L-fUe

-.:

the

under

yi -l-rl-

f ^

work,

as distinguished

^^ht-?^l

definite

l-he

resufts

.-r^Tr)rA

a??

F

in

q.q4

denominates

the

relationship
thef

v.

other

Rea]ty

1rq 7 q lJ)
L
t

a :f l 1 - e erl a rlf - J r^r h
a a \i
\a

a/ /
d } n} r ,r

t

t

The Rialto
[Ms.

Ffournoy]

rli sr-nvcnr

' ^ ,i I I

true

ih

rarra2l

\sllrl/rrqrf

contend

establish
evidence"

a

that

c
p

*it

reasonabl-e
when

V.

(ca.
a l or

evidence

(rrrrnf incr

744,
: r t Aua
qusu /

is

zt\

v.

P. r- ^ , n
- w

contractor,
the

Td

/^,nnh:<i

certain

omnl

unLess

j-hc

Jotms

"

534-35

independent

the

e}(ecl]tin.r

require

632,

380 S.E.2d

^vi^ih-1\

v7grftgl.
r

assumes the

f a r r n l - 9 4h d : ,
i rr
\ Ygv

nf

COntfOJ,."

u!fYfrro.r/

Of

to

to

Whethef

s

contract.

.-rin l- r:-i

Inc.,

necessarv

written,

1qqlI

Cfeate

r e e r l -u l e u rq-rr r 1 : r
i r
yi!

t'i

354 S.E.2d

be

Defendants
to

air

an

frr

:
s

method

the

as

Assocs.,

control-

merely

to

party

eSs]u,med SUCh

Northslde

right

iho

to

accounts

S 3.1(a) );

rrOVj_SiOnS

or

and

/lTt-h

Inc.,

of

oral

hora

presumed

is
p m r t Tn t t c r

thF

\\ lu,l

An.4

the

conformity

qq-l

?/l

those

..\yrf.ractor

either

from

name and

into

Whatl^a-

Of

manner-

Coastal- Emerqencv Servs.,

A p p . r 9 8 7) )

l-evel

LeSt,/

t.ime.

cML's

'tihcsc

f LA1-

the

contract

at

in

payments

rent

i ss srrn l u
r r l1 1yd F u sarn . l a n | -

ss

(Id.

units

be maintained

/-.).tf en.lq

demonstrate

^r ^ l^ t-y-f - ': ^
\ E J
d

': -

aff

deposit

Flnrr-n.rrz

opportunities

must

accounts

must

retaif

Ct.
r1

rr

that
shows

R.artfett

(ca.

745

Ct.

.

impossible

expectation

1-l^e Manaoerrent

for
that

A1.1raement

r\Yr!

states

clearly
(Doc.

18

stated

above.

3.)

at

established
independent
annavf

sufficient

t-

Fl-ournoy -

the

prorlerrv.
present

whi ch

is

Court

reluctant

on

a

such

of

the

appeals

error

bv

-

court

identifying

j -h F

contsrof

-^l ^it S o: - L 'ri c^. r t . r n g

aspects

contract
of

the

the

agent

over
fnr

provide
business.

the

to

the

control_

i-n

pleadings,

the

in<rrr:nao

the
-

issue

face

There,

reversibl-e

was

of

hanrrr<o

Georgia

on summary

committed

place,

which

issue.

as an independent
time,

the

claims,

similar

at

Rex
the

decision

court

cou]d

over

Indeed,

court's

trial

that

survive

on the

inquiry.

even

. - i
f
a-plp^-aL r c A t il ^ n c

the

an

identj-fied

conlrol

Flournoy's

rc'l at'i onsh i n

purportsed

disclaiming

of

Ms.

of

based on a strikingly

contractor,
the

judgment

a triaf

heLd tha!

has

sufficient

for

dispose

to

r-nnr- l rrdi no

independent

finds

Court

reversed

judgment no less

of

exercised

fact-intensive

Appeals

afforded

Management Agreemenl

the

on a motion

motion.

of

is

record

limited

Defendants

fhe

that

evidence

with

have

the relationship.

within

Rialto

l-aw as

Defendants
is

Flournoy

presumption

that

RialLo

the

the

refationship

Ms.

even on Ehis

provisions

indicate

court

'6h

the

that

contractor.

independent

misinterprets

argument

but

to transform

specific

turn

presumption

f ^

an

no doubL that

is

contractor,

rrn.i t-r,

Ms.

an

Such

There
a

is

Rex Property

that

that

a

of

contract

contractor
and

control"

wirh

A.L.

Wi]Iians

& Assocs

and

manner

\\nt- trar
\JLrrsr

for

an

of

n z n r vi ] s l o n s
prv r

regard
Inc

to

other
v.

Sun

Life

Assurance

App.

1980)

772

F.3d

Co.

districr

court

apparent

the

independent
fine

calfs

Franza v.

] - 2 3 7- 3 8

agency

because

simply

rerrca

l

Caribbean

the

the

Cruises,

(hoLding

nurse
that

was
and
is

Ct.

Ltd.,

thats

the

claim

of

pl ai nciff's

Court

because

(Ga.

285-86

unwilling
doctor

what

t.o

to

be

the

cruise

discovery

might

them. " )

not

foreclosing

prr1rrprf

RF).

-,

Management Agireement
facts,

based

defeat

the

Defendants'

285,

20a4)

onboard]

Idefendant's

IV.

While

Cir.

dismissi ng

part

contractors

S.E.2d

Royal

(11th

in

erred
in

265

Canada,

see afso
t225,

t'consider

of

on her

Riafto
motion

--d

CONCLT'SION

the
M'

cfaims,
compl-aint

Defendants'
for

possibility
v; ^d

Ms.
and

f cr

be

Ffournoy
the

motion.

judgment

that

on

e:{acf

has

l v

pled

what.

sufficient

Management Agreement,
Accordingly,
the

pleadings

the

the
is

to

Rial-to
DENIED.

(Doc. 11. )
ORDER ENTERED at

Augusta,

Georgia,

this

day

of

2QL5

STATES DISTRICT JUDGE
DISTRICT OF GEORGIA

May,