Lincoln v. Mendler et al
Filing
25
ORDER AND REASONS: IT IS ORDERED that the Mendler Defendants' 14 motion to dismiss is GRANTED and Plaintiff's first, second, third, fourth, and fifth causes of action against Miklos Mendler and Offside, LLC are DISMISSED, at Plaintiff's cost, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 8/31/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES EDWARD LINCOLN, III
CIVIL ACTION
VERSUS
NO. 18-4542
MIKLOS MENDLER, ET AL.
SECTION "B"(4)
ORDER AND REASONS
Before the Court is a motion to dismiss filed by Defendants
Miklos
Mendler
Defendants).
and
Rec.
Offside,
Doc.
14.
LLC
The
dba
motion
Avenue
to
Café
dismiss
(Mendler
addresses
Plaintiff’s initial complaint (Rec. Doc. 1). See id. Plaintiff
Charles Edward Lincoln, III did not file an opposition, but did
file an amended complaint.1 Rec. Doc. 19. For the reasons discussed
below,
IT IS ORDERED that the Mendler Defendants’ motion to dismiss
(Rec. Doc. 14) is GRANTED and Plaintiff’s first, second, third,
fourth, and fifth causes of action against Miklos Mendler and
Offside, LLC are DISMISSED, at Plaintiff’s cost.2
1
“An amended complaint supersedes the original complaint and
renders it of no legal effect unless the amended complaint
specifically refers to and adopts or incorporates by reference the
earlier pleading.” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
But, a defendant who has filed an initial motion to dismiss does
not need to file a second motion to dismiss when a plaintiff amends
a complaint. See 6 Wright & Miller, Federal Practice and Procedure
§ 1476 (2005). “If some of the defects raised in the original
motion remain in the new pleading, the court simply may consider
the motion as being addressed to the amended pleading. To hold
otherwise would be to exalt form over substance.” Id.
2 It would be a pointless gesture to allow amendment given the
frivolous nature of this matter and Plaintiff’s history of filing
1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff’s amended complaint contains allegations against
the Mendler Defendants, as well as the Mayor and City of New
Orleans. See Rec. Doc. 19. This section will only discuss the facts
as relevant to Plaintiff’s claims against the Mendler Defendants
because those are the only claims addressed in the motion to
dismiss.
From 2012 until May 2, 2017, Plaintiff was a regular customer
at the Avenue Café in New Orleans, Louisiana. See id. ¶¶ 31-32,
98-99. Plaintiff would spend hours per day at the Café and “treated
[it] as [his] surrogate or extended home sometimes.” Id. ¶¶ 25,
26. Prior to May 2017, the New Orleans city government began a
process of removing certain monuments to Civil War era figures.
Plaintiff
opposes
this
effort.
See
generally
Rec.
Doc.
19.
Plaintiff was filmed “speaking at the Jefferson Davis Monument,”
id. ¶ 31, about why he opposed the City’s efforts to remove the
monuments, see id. ¶ 98.
On May 2, 2017, Plaintiff arrived at the Café and was pulled
aside by Defendant Miklos Mendler, the Café’s owner. See id.
Mendler told Plaintiff that members of the Café’s staff had seen
Plaintiff speaking about the monuments on television and did not
frivolous claims, previously dismissed. See, e.g., Martin’s Herend
Imports, Inc. v. Diamond & Gem Trading, 195 F.3d 765, 771 (5th
Cir. 1999) (“A district court acts within its discretion when
dismissing a motion to amend that is frivolous or futile.”).
2
want Plaintiff to continue spending time at the Café. See id. ¶ 32.
Plaintiff “was in a state of absolute shock and dismay” upon
learning that he was no longer welcome at the Café.3 Id. ¶ 33.
Plaintiff has since “been too fearful to try” to find another café
to frequent. Id. Plaintiff then filed suit against Mendler and the
Café, arguing that they violated federal civil rights laws and the
Louisiana Constitution, as well as committed multiple torts, by
asking Plaintiff not to return to the Café. See id. ¶¶ 103-134.
The Mendler Defendants filed a motion to dismiss Plaintiff’s
claims. See Rec. Doc. 14.
LAW AND ANALYSIS
To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a plaintiff’s complaint “must contain ‘enough
facts to state a claim to relief that is plausible on its face.’”
Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When
deciding whether a plaintiff has met his burden, a court “accept[s]
all well-pleaded factual allegations as true and interpret[s] the
complaint in the light most favorable to the plaintiff, but
‘[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements’ cannot establish facial
plausibility.” Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d
3
Plaintiff also “felt angry, betrayed, crushed, extremely
depressed, fearful, injured, and outraged.” Rec. Doc. 19 ¶ 33.
3
512, 520 (5th Cir. 2016)(quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009))(some internal citations and quotation marks omitted).
I. Federal Civil Rights Law
Plaintiff
alleges
that
the
Mendler
Defendants
violated
federal civil rights law by asking him not to return to the Café.
See Rec. Doc. 19 ¶¶ 103-115. The relevant statutory provisions
follow.
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, as defined in this section,
without discrimination or segregation on the ground of
race, color, religion, or national origin.
42 U.S.C. § 2000a (emphasis added).
All persons shall be entitled to be free, at any
establishment
or
place,
from
discrimination
or
segregation of any kind on the ground of race, color,
religion, or national origin, if such discrimination or
segregation is or purports to be required by any law,
statute, ordinance, regulation, rule, or order of a
State or any agency or political subdivision thereof.
Id. § 2000a-1 (emphasis added).
First Plaintiff has not stated a claim under §§ 2000a or
2000a-1 because he seeks damages, see Rec. Doc. 19 ¶¶ 107-108,
138-139, which he cannot recover under Title II. See Newman v.
Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (“When a
plaintiff brings an action under . . . Title [II], he cannot
recover damages.”).
4
Second, Plaintiff has not stated a claim under §§ 2000a or
2000a-1 because he has not alleged that he was discriminated
against “on the ground of race, color, religion, or national
origin.” Construing Plaintiff’s pleadings in his favor, he alleges
that he is a victim of “discrimination against White People,”
discrimination against “White People suspected of supporting ‘the
Cult of the Lost Cause,’” “discrimination against and segregation
of all overtly and openly conservative and traditional advocates”
in New Orleans, and “racial and religious” “discrimination against
and segregation of adherents to the supposed ‘Cult of the Lost
Cause.” See Rec. Doc. 19 ¶¶ 40, 105, 109. Plaintiff’s allegations
are not plausible and do not state a claim under §§ 2000a or
2000a-1. See Snow Ingredients, 833 F.3d at 520.
Though
People,”
his
Plaintiff
asserts
discrimination
amended
complaint
makes
clear
against
that
he
“White
actually
believes he was asked to leave the Café because of his opposition
to the removal of confederate monuments. See, e.g., Rec. Doc. 19
¶ 101 (alleging that Mendler asked him to leave the Café “because
of [his] cultural and creedal beliefs”). Because Plaintiff does
not allege that he was asked to leave the Café because of his race,
he cannot state a claim for race-based discrimination. See Malik
v. Continental Airlines Inc., 305 F. App’x 165, 169-70 (5th Cir.
2008); McCoy v. Homestead Studio Suites Hotels, 177 F. App’x 442,
445 (5th Cir. 2006).
5
Moreover,
Plaintiff
has
not
plausibly
alleged
that
his
opposition to the removal of the Confederate monuments is a
religious belief. Plaintiff effectively concedes this point by
referring to his beliefs as a “secular, history-based ‘civil
religion’ of the South, to which some refer as ‘the Cult of the
Lost Cause,’” Rec. Doc. 19 ¶ 50, and an “invented . . . artificial
religious category,” id. ¶ 112. Plaintiff goes so far as to allege
that “adherents of that creed” do not “endorse” this religious
label and “merely consider[] themselves supporters of traditional
understandings,
quite
separate
from
[their]
real
religious
traditions . . . .” Id. Because Plaintiff has not alleged that his
opposition to the removal of confederate monuments is a religious
belief,
and
has
in
fact
stated
that
the
religious
label
is
“invented” and “artificial,” see Davis v. Fort Bend Cty., 765 F.3d
480, 485 (5th Cir. 2014), he cannot sustain a claim for religious
discrimination.
Insofar as Plaintiff also attempts to bring claims under 42
U.S.C. §§ 1981 and 1982, see Rec. Doc. 19 at 30, those efforts are
also
unavailing.
discrimination,
Sections
they
do
1981
not
and
1982
only
provide
a
remedy
address
for
racial
religious
discrimination. See 42 U.S.C. §§ 1981, 1982; Runyon v. McCrary,
427 U.S. 160, 167 (1976). As Plaintiff has failed to state a claim
for racial discrimination under §§ 2000a and 2000a-1, he has also
6
failed to state a claim under §§ 1981 and 1982. See Malik, 305 F.
App’x at 169-70; McCoy, 177 F. App’x at 445-46.
II. Louisiana Constitution Art. 1 §§ 3 & 12
For the same reasons that Plaintiff’s federal civil rights
claims must be dismissed, Plaintiff’s claims under the Louisiana
Constitution
cannot
proceed.
Plaintiff
seeks
relief
under
Article 1, sections 3 and 12 of the Louisiana Constitution, which
prohibit discrimination based on, inter alia, race and religion.
La. Const. art. 1 §§ 3, 12. As with his federal civil rights
claims, Plaintiff’s claims under the Louisiana Constitution allege
racial and religious discrimination. See Rec. Doc. 19 at ¶¶ 123,
129. But, as discussed previously, Plaintiff has not plausibly
alleged that the Mendler Defendants asked him to leave the Café
because of his race or religious beliefs.
III. Intentional & Negligent Infliction of Emotional Distress
Plaintiff has also failed to state claims for intentional or
negligent infliction of emotional distress. To state a claim for
intentional infliction of emotional distress (IIED), Plaintiff
must show “(1) that the conduct of the defendant was extreme and
outrageous; (2) that the emotional distress suffered by [him] was
severe; and (3) that the defendant desired to inflict severe
emotional distress or knew that severe emotional distress would be
certain or substantially certain to result from his conduct.” White
v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). “The conduct
7
must be so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as
atrocious
and
utterly
intolerable
in
a
civilized
community.
Liability does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” Id.
Plaintiff has failed to state a claim for IIED because he
does not allege that the Mendler Defendants “desired to inflict
emotional distress” or knew that such distress would occur when
asking Plaintiff not to return to the Café. Instead, it appears
from Plaintiff’s pleadings that Mendler attempted to address the
situation privately by “pull[ing] [Plaintiff] aside” and “ask[ing]
[him] to come outside to a table on the sidewalk.” Id. ¶ 31.
Mendler then explained the concerns raised by the staff and asked
Plaintiff not to return. See id. ¶ 32. Even under the deferential
standards of a 12(b)(6) motion to dismiss, it would be unreasonable
to infer from these facts that Mendler acted with the intent to
cause Plaintiff severe emotional distress, or that he knew their
actions would cause the same.
Also, Plaintiff does not plausibly allege that Mendler’s
conduct was “extreme and outrageous.” See Rec. Doc. 19 ¶¶ 31-32.
According to Plaintiff, a single interaction with Mendler gives
rise to this claim. See Rec. Doc. 19 ¶ 31. During that interaction,
Mendler privately explained why he did not want Plaintiff to return
to the Café. See id. ¶ 32. Mendler allegedly apologized multiple
8
times about asking Plaintiff not to return, but explained that his
staff did not feel safe around Plaintiff anymore. See id. Plaintiff
does
not
allege
that
Mendler
was
angry,
used
inappropriate
language, or raised his voice.
This does not meet the heavy bar for a claim of intentional
infliction of emotional distress. See, e.g., White v. Monsanto
Co., 585 So. 2d 1205, 1210-11 (La. 1991) (finding no claim for
IIED based on a “one-minute outburst of profanity directed at three
employees by a supervisor” even though the “vile language” was
“crude, rough and uncalled for”); Quinlan v. Sugar-Gold, 219 So.
3d 1173, 1185-86 (La. Ct. App. 2017) (no probability of success on
IIED
claim
where
“defendant
stated
that
her
father
was
the
‘intended victim’ of elder abuse, declared that the plaintiffs
betrayed her father’s trust, described the plaintiffs’ actions as
‘vile’ and referred to the plaintiffs as ‘greedy, phony vultures.’)
Scamardo v. Dunaway, 694 So. 2d 1041, 1042-43 (La. Ct. App. 1997
(plaintiff
fertility
did
not
doctor
state
who
had
claim
affair
for
IIED
with
by
suing
plaintiff’s
defendant
wife
while
plaintiff and his wife were seeking treatment with defendant); see
also cf. W.T.A. v. M.Y., 58 So. 3d 612, 617 (La. Ct. App. 2011)
(“[C]oaching a child to make a false allegation of sexual abuse
against his father is an intentional act to inflict emotional
distress upon the father. It is an act that goes beyond all
possible bounds of decency, and our civilized community must regard
9
it as atrocious and utterly intolerable.”). Accordingly, Plaintiff
has not stated a claim for IIED.
To
state
a
claim
for
negligent
infliction
of
emotional
distress (NIED), Plaintiff must show that
(1) the defendant had a duty to conform his or her
conduct to a specific standard of care (the duty
element); (2) the defendant failed to conform his or her
conduct to the appropriate standard (the breach of duty
element); (3) the defendant’s substandard conduct was a
cause-in-fact of the plaintiff's injuries (the causein-fact element); (4) the defendant's substandard
conduct was a legal cause of the plaintiff's injuries
(the scope of liability or scope of protection element);
and (5) actual damages (the damages element).
Covington v. Howard, 146 So. 3d 933, 937 (La. Ct. App. 2014). When
there is no allegation of physical injury, a defendant’s duty is
narrow. Id. “[R]ecovery is limited to facts constituting ‘special
circumstances’
serious
involving
mental
the
distress
especial
likelihood
arising
from
the
of
real
and
particular
circumstances.” Id. Recovery is limited “to those cases that
involved facts where the defendant’s conduct was outrageous or
deemed outrageous because the defendant breached a special direct
duty to the plaintiff and where the resulting mental distress the
plaintiff suffered was easily associated with the defendant's
conduct.” Id. at 938.
Plaintiff has not alleged that he suffered physical injury.
See Rec. Doc. 19 ¶ 33. As discussed previously, Plaintiff has not
adequately pled that Mendler’s conduct was outrageous. Nor does
10
Plaintiff allege that the Mendler Defendants owed him a “special
direct duty.” Plaintiff was a long-time patron of the Café, but
there is no indication that this commercial relationship created
a special duty owed to Plaintiff. Plaintiff neither alleges that
he is especially susceptible to emotional distress, nor that, if
he is, Mendler knew that when he asked Plaintiff not to return to
the café. See Covington, 146 So. 3d at 940 (“The defendant’s
knowledge
that
a
plaintiff
is
particularly
susceptible
to
emotional distress is a factor to be considered.”). Therefore,
Plaintiff has failed to state a claim for NIED.
New Orleans, Louisiana, this 31st day of August, 2018.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
11
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