Martinez v. Wal-Mart
MEMORANDUM AND ORDER granting 7 Motion to Dismiss for Failure to State a Claim; finding as moot 9 Motion to Strike ; denying 11 Motion to Amend Complaint. It is further ordered that Martinez' Amended Complaint is dismissed in its entirety. Signed by District Judge Eric F. Melgren on 11/28/2017. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 6:17-CV-01199-EFM-GEB
WAL-MART, et al.,
MEMORANDUM AND ORDER
This action arises out of Plaintiff Daniel Martinez’ unsuccessful attempt to exchange a
tire pump at a Wal-Mart located in Wichita, Kansas, and the encounter that ensued between
Martinez and two managerial employees. Martinez asks this Court to find that Wal-Mart, along
with two of its managerial employees, violated his First Amendment rights by asking him to
leave the store after he commented on the physical appearance of an assistant manager.
Three motions are currently before the Court: (1) Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint (Doc. 7); (2) Plaintiff’s Motion to Strike Defendant’s Motion to
Dismiss (Doc. 9); and (3) Plaintiff’s Motion to Amend (Doc. 11). As explained below, the Court
grants Wal-Mart’s motion to dismiss, denies Martinez’ motion to amend, and denies as moot
Martinez’ motion to strike.
Factual and Procedural Background
According to the Amended Complaint, Martinez tried to exchange a tire pump to WalMart, but was told by an assistant manager, Lisa (last name unknown), that he could not
exchange the pump without a receipt. Another manager, Mike (last name unknown), added that
even with a receipt, an exchange would not be performed beyond 90 days after the purchase.
Martinez disagreed and requested Lisa’s last name, purportedly to pursue legal action. At some
point in his discussion with Mike, Martinez described Lisa as having a “Butch Style Hair Cut.”
Mike told Martinez that his comment was out of order and asked him to leave the store.
On August 10, 2017, Martinez filed a Complaint asking the Court to rule that he was
wrongfully asked to exit the store in violation of the First Amendment. Martinez filed an
Amended Complaint on August 16, 2017, expanding upon his requested relief, but not amending
the statement of his claim.1 Martinez alleges that Wal-Mart, Lisa, and Mike violated his First
Amendment rights, and requests $500,000 in damages.
In its motion to dismiss, Wal-Mart asserts that the Amended Complaint should be
dismissed for failure to state a claim under Rule 12(b)(6), for insufficient process and insufficient
service of process under Rules 12(b)(4) and (5), and for lack of personal jurisdiction under Rule
12(b)(2). Martinez filed a motion to strike Wal-Mart’s motion to dismiss, as well as a combined
response and request for leave to amend (Docs. 10 and 11).
Wal-Mart contends that Martinez’ First Amendment claim fails as a matter of law
because Martinez has not and cannot allege that Wal-Mart is a governmental entity or that any
party acted under color of law—a prerequisite for stating a valid claim for violations of the First
See Docs. 1 & 3.
Amendment. Martinez asserts that Wal-Mart has not provided clear and convincing evidence
that Lisa and Mike did not act under the color of law, and that private corporations and
individuals may violate the First Amendment.
The motions are fully briefed and ripe for adjudication. For the reasons stated below, the
Court grants Wal-Mart’s motion to dismiss, denies Martinez’ motion to amend, and denies as
moot Martinez’ motion to strike.
Motion to Dismiss2
To survive a motion to dismiss under Rule 12(b)(6), a complaint must present factual
allegations, assumed to be true, to “raise a right to relief above the speculative level” and contain
“enough facts to state a claim to relief that is plausible on its face.”3 Under this standard, “the
complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.”4
The plausibility standard enunciated by the
Supreme Court in Bell Atlantic v. Twombly, seeks a middle ground between heightened fact
pleading and “allowing complaints that are no more than ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause action,’ which the Court stated ‘will not do.’ ”5 A claim is
Because the Court concludes that Martinez has failed to state a claim upon which relief can be granted
under Rule 12(b)(6), the Court finds it unnecessary to rule on, and accordingly, declines to address Wal-Mart’s
arguments under Rule 12(b)(2), (4), and (5).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphases in original).
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 555).
facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the
defendant is liable for the alleged misconduct.6
“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.”7 The Court, however, cannot “assume the
role of advocate for the pro se litigant.”8
The Court will not “supply additional factual
allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.”9 The Court need only accept as true a plaintiff’s “well-pleaded factual contentions, not
his conclusory allegations.”10
Motion to Amend
A “party may amend its pleading once as a matter of course” within 21 days after serving
it, or within 21 days after service of a responsive pleading or a Rule 12 motion.11 Thereafter, “a
party may amend its pleadings only with the opposing party’s written consent or the court’s
leave.”12 Under Rule 15(a), leave to amend a complaint is freely given when justice so requires.
Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided
on its merits rather than on procedural niceties.’ ”13 Courts may, however, deny leave to amend
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted).
Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citation omitted).
Hall, 935 F.2d at 1110 (citation omitted).
Fed. R. Civ. P. 15(a)(1).
Fed. R. Civ. P. 15(a)(2).
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Hardin v. Manitowoc–
Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
based on “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of amendment.”14 “A proposed amendment is
futile if the complaint, as amended, would be subject to dismissal for any reason.”15 It is within
the Court’s sound discretion whether to allow a proposed amendment after the permissive
Motion to Dismiss
The First Amendment to the United States Constitution provides that “Congress shall
make no law . . . abridging the freedom of speech.”17 “[T]he constitutional guarantee of free
speech is a guarantee only against abridgement by government, federal or state.”18 “Thus, while
statutory or common law may in some situations extend protection or provide redress against a
private corporation or person who seeks to abridge the free expression of others, no such
protection or redress is provided by the Constitution itself.”19
Although the First Amendment extends only to the government’s abridgement of rights, a
private party may be liable for a constitutional violation if the party’s conduct is “fairly
Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239–40 (10th Cir. 2001) (citing Jefferson Cty. Sch.
Dist. No. R–1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 858–59 (10th Cir. 1999)).
Foman, 371 U.S. at 182; Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010).
U.S. Const. amend. I.
Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976).
attributable” to the government.20
This requires the presence of two conditions—(1) the
deprivation must be “caused by the exercise of some right or privilege created by the State or by
a rule of conduct imposed by the State or by a person for whom the State is responsible,” and (2)
“the private party must have ‘acted together with or . . . obtained significant aid from state
officials’ or engaged in conduct ‘otherwise chargeable to the State.’ ”21
Nothing in Martinez’ Amended Complaint suggests that any Defendant is employed by,
or otherwise acted on behalf of the government, state or federal. Nor has Martinez alleged facts
suggesting that the Defendants acted in concert with or obtained significant aid from a
government official or otherwise engaged in conduct attributable to the government. Rather, in
his response, Martinez appears to concede that the Defendants are private individuals and a
private corporation as he requests an order declaring that private individuals and corporations
may be held liable for violations of the First Amendment.22 Private corporations and individuals,
however, cannot be held liable for violations of the First Amendment unless acting under color
of law, 23 and Martinez has failed to allege that any of the Defendants acted under color of law.
Accordingly, his assertion that Wal-Mart and its managers violated his First Amendment rights
Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (quoting Lugar v. Edmonson Oil Co., Inc., 457 U.S.
922, 936 (1982)).
Id. (quoting Wyatt v. Cole, 504 U.S. 158, 162 (1992)).
Doc. 10, at 2.
Martinez maintains that the cases cited by Defendants for this proposition are not based on Rule 57. Rule
57 and the Declaratory Judgment Act, however, do not create additional substantive rights, but rather “merely
provide another procedure whereby parties may obtain judicial relief.” Farmers All. Mut. Ins. Co., 570 F.2d 1384,
1386 (10th Cir. 1978). In other words, Rule 57 does not create additional rights under the First Amendment, and
cases involving First Amendment claims need not arise in the Rule 57 context to inform the Court’s decision here.
fails as a matter of law.24 Martinez has failed to state a claim upon which relief can be granted,
and Wal-Mart’s motion to dismiss is granted.
Motion to Amend
Martinez seeks permission to amend his Amended Complaint solely to cure the alleged
notice deficiencies. His motion neither complies with the procedural prerequisites for seeking
leave to file an amended complaint nor attempts to cure the legal deficiencies discussed above.
Since Martinez does not seek to cure the legal deficiencies of his claims, his amendment would
be futile.25 Accordingly, Martinez’ motion to amend is denied.
State Law Causes of Action
To the extent Martinez seeks to pursue alleged violations of K.S.A. §§ 50-626 and 50-
627, or any other state law cause of action, the Court declines to exercise jurisdiction over such
claims. Federal courts are courts of limited jurisdiction.26 Martinez’ federal claims provide the
sole basis for this Court to exercise subject-matter jurisdiction over this matter, as Martinez has
not alleged and there does not appear to be complete diversity between the parties. Although a
federal court may exercise supplemental jurisdiction over state law claims “that are so related to
claims in the action within [the Court’s] original jurisdiction that they form a part of the same
case or controversy under Article III of the United States Constitution,”27 a court may decline to
In his claim for relief, Martinez requests that the Court issue an order finding that the Defendants
obstructed and violated his due process rights. To the extent Martinez wishes to assert a claim for violations of his
substantive or procedural due process rights, this claim also fails as a matter of law for the same reason that his First
Amendment claim must be dismissed. Namely, a private corporation or individual cannot violate an individual’s
due process rights. See Browns v. Mitchell, 409 F.2d 593, 594 (10th Cir. 1969).
Minter, 451 F.3d at 1204 (citations omitted); Beckel, 242 F.3d at 1239–40 (citations omitted).
Hawkins v. Mercy Kansan Cmtys., Inc., 2015 WL 3796073, at *2 (D. Kan. 2015) (quoting Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002)).
28 U.S.C. § 1367(a).
exercise such jurisdiction where it “has dismissed all claims over which it has original
jurisdiction.” 28 Indeed, unless “considerations of judicial economy, convenience and fairness to
litigants” weigh in favor of the exercise of supplemental jurisdiction, “a federal court should
hesitate to exercise jurisdiction over state claims.”29 Because the Amended Complaint fails to
state a viable federal claim, and because this case is in its infancy, the Court declines to exercise
supplemental jurisdiction over any state law causes of action Martinez seeks to allege.
IT IS THEREFORE ORDERED that Wal-Mart’s motion to dismiss (Doc. 7) is hereby
IT IS FURTHER ORDERED that Martinez’ motion to amend (Doc. 11) is hereby
IT IS FURTHER ORDERED that Martinez’ motion to strike (Doc. 9) is hereby
DENIED AS MOOT.
IT IS FURTHER ORDERED that Martinez’ Amended Complaint is dismissed in its
IT IS SO ORDERED.
Dated this 28th day of November, 2017.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
28 U.S.C. § 1367(c).
United Mine Workers v. Gibb, 383 U.S. 715, 726 (1966).
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