D'Aquin et al v. Starwood Hotels and Worldwide Properties Inc et al

Filing 48

ORDER AND REASONS granting 25 Motion to Dismiss; granting 27 Motion to Dismiss; granting 21 Motion to Dismiss; denying as moot 24 Motion to Strike. ordered that case be dismissed with prejudice. Signed by Judge Helen G. Berrigan on 9/4/2015. (Reference: 15-1963)(kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

THOMAS D’AQUIN and ESTHER KELLY

CIVIL ACTION

VERSUS

NO:

STARWOOD HOTELS AND WORLDWIDE
PROPERTIES INC, ET AL

SECTION: “C”

15-1963

ORDER AND REASONS

Before the Court are several motions by the defendants. These include:
(1) Motion to Dismiss and, in the alternative, Motion for a More Definite Statement by
Douglas Neil Lurie (“Lurie) and Orthopaedic Associates of New Orleans (“OANO”)
(Rec. Doc. 21);
(2) Motion to Strike by Lurie and OANO (Rec. Doc. 24);
(3) Motion to Dismiss by Starwood Hotels & Resorts Worldwide, Inc. (“Starwood”), The
Hanover Insurance Company (“Hanover”), and numerous individual defendants (Rec.
Doc. 25); and
(4) Motion to Dismiss by Touro Infirmary (“Touro”) (Rec. Doc. 27).
The motions are before the Court on the briefs and without oral argument. Having considered the
record, the law, and the arguments of the parties, and for the reasons discussed herein, the Court
hereby GRANTS the motion to dismiss by Lurie and OANO (Rec. Doc. 21), the motion to

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dismiss by Starwood, et al (Rec. Doc. 25), and the motion to dismiss by Touro Infirmary (Rec.
Doc. 27). The Court DENIES AS MOOT the motion to strike (Rec. Doc. 24).

I.

Background
This is a pro se action for compensation stemming from what plaintiffs allege to be

discriminatory treatment perpetrated by the many defendants named in this case. According to
the amended complaint, the plaintiffs, Thomas D’Aquin and Esther Kelly, appear to allege that
they were treated in a discriminator manner based on their status as an interracial couple when
they stayed in a hotel operated by some of the defendants, and then denied medical care after
allegedly suffering a broken ankle. Rec. Doc. 1 at 3. The plaintiffs allege that they were given a
hotel room at the Westin Hotel with a leaky toilet, and that the defendants refused to fix the toilet
or move the plaintiffs to another room. They allege that Kelly suffered a broken ankle while
staying in the hotel, that the hotel initially refused to call an ambulance, and that they were made
to wait an hour and a half to receive treatment. They complain that following this incident, which
appears to have taken place in Memphis, the defendants used a discriminatory method for
determining their offer for a monetary settlement. Id. at 4. Plaintiffs claim that the defendants
have violated the Civil Rights of 1964, the Hate Crimes Protection Act of 2009, and rights under
the Fifth and Fourteenth Amendments of the Constitution. Id. at 2. They seek $60 million from
each defendant for pain and suffering as a result of the incidents alleged in the complaint. Id. at
11.

II.

Standard of Review

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A motion to dismiss will be granted when a complaint does not provide, “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complainant must plead facts that
raise the right of recovery above speculation. Twombly, 550 U.S. at 555-556. “While a
complaint attacked by a motion to dismiss for failure to state a claim upon which relief can be
granted does not need detailed factual allegations, a plaintiff's obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Fed. R. Civ. P. Rule 12(b)(6), 28 U.S.C.A. In
assessing a motion to dismiss, the court must take all well-pleaded factual allegations of the
complaint as true and draw all reasonable inferences in favor of the plaintiff. In re Katrina
Canal Breaches Litigation, 459, F.3d 191, 205 (5th Cir. 2007).

III.

Law and Analysis
As a threshold matter, this Court interprets pleadings and briefs of pro se litigants

liberally “to afford all reasonable inferences which can be drawn from them.” In re Tex. Pig
Stands, Inc., 610 F.3d 937, 941 n.4 (5th Cir. 2010).
a. Hate Crimes Protection Act of 2009
Defendants point out that the Hate Crimes Protection Act is a criminal statute that cannot
serve as the basis for a civil cause of action. Rec. Doc. 25-1 at 9-10. This assertion is correct.
Other federal courts have observed that the Act provides “only criminal penalties for federal hate
crimes, and does not provide for any civil cause of action that may be raised by private

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individuals." Lee v. Lewis, Civ. A. No. 10-55, 2010 WL 5125327, *2 (E.D.N.C. 10/29/2010)
(citing 18 U.S.C. §249). Accordingly, the plaintiffs’ claims under this statute are DISMISSED
WITH PREJUDICE.
b. Fifth and Fourteenth Amendment Claims
Plaintiffs claim that they were denied “Life, Liberty and the Pursuit of Happiness.” Rec.
Doc. 6 at 2. The Court interprets this allegation as attempting to claim violations of plaintiffs’
rights under the Fifth and/or Fourteenth Amendments. However, defendants are correct to point
out that plaintiffs’ right to due process under these Amendments only applies to actions by
governmental entities or those acting under color of law. Because the defendants in this action
are all private actors and plaintiffs have not otherwise alleged actions by state actors, the Court
finds that this claim must be dismissed.
c. Civil Rights Act of 1964
Defendants argue that plaintiffs are not eligible for monetary relief under the Civil Rights
Act of 1964 because Title II of the Act provides that private actors may obtain only injunctive
relief. Rec. Doc. 25-1. Title II of the Civil Rights Act of 1964 prohibits discrimination in public
accommodations. Fahim v. Marriott Hotel Services, Inc. 553 F.3d 344, 350 (5th Cir. 2008). The
Fifth Circuit has set forth that to establish a prima facie case under Title II, a plaintiff must show
that he or she (1) is a member of a protected class; (2) attempted to contract for the services of a
public accommodation; (3) was denied those services; and (4) the services were made available
to similarly situated persons outside the protected class. Id. at 350. However, the Court notes that
the Fifth Circuit enunciated this test for a case in the summary judgment phase. Id at 348. Here,
the Court is entertaining a motion to dismiss. The Court finds that to hold plaintiffs to the same
standard at this stage would be inappropriate.

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Moreover, the Court does not agree with defendants’ argument that Title II only applies
to denials of access to places of public accommodation. Rec. Doc. 25-1 at 8. The language of the
statute provides that:
All persons shall be entitled to the 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 (emphasis added). Although the language quoted by defendants in Daniel v.
Paul underscores the importance of removing denials of access to public accommodations, there
is nothing in that opinion that limits the scope of the statute to access alone. 395 U.S. 209, 30708 (1969).
Nevertheless, the Court finds that plaintiffs have failed to allege a plausible claim.
Plaintiffs state they were given a room with a broken toilet which caused an ankle injury, that the
hotel failed to fix the toilet and failed to move them to another room, that they were denied
prompt medical treatment, and were not refunded the cost of their hotel stay, and that the
defendants used a discriminatory method in determining the monetary amount to offer plaintiffs
in exchange for settlement of their claims. Rec. Doc. 6. Plaintiffs claim that this treatment was
the result of racial animus. However, their assertions of racial bias are conclusory and
speculative. Plaintiffs do not set forth their specific grounds for concluding that they were treated
differently based on their race. Thus, the amended complaint does not raise a right to relief based
on racial discrimination that rises beyond the level of speculation, and this claim must be
dismissed.

IV.

Conclusion

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Accordingly, IT IS ORDERED that the motions to dismiss by Lurie and OANO;
Starwood, et al.; and Touro are GRANTED (Rec. Doc. 21, 25, 27). The Court DENIES AS
MOOT the motion to strike (Rec. Doc. 24) and motion to dismiss by Touro (Rec. Doc. 27). This
action is hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 4th day of September, 2015.

__________________________________
UNITED STATES DISTRICT JUDGE

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