Khamis v. 7-Eleven Inc et al

Filing 37

ORDER - Defendant 7-Eleven's motion for summary judgment (ECF No. 31 ) is granted. The Clerk of the Court is instructed to enter judgment in favor of 7-Eleven and close this case. Signed by Judge Miranda M. Du on 10/23/2018. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ARTHUR KHAMIS,

Case No. 3:17-cv-00124-MMD-CBC
Plaintiff,

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ORDER

v.
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7-ELEVEN, INC., et al.,
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Defendants.
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I.

SUMMARY

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Plaintiff Arthur Khamis, a former franchisee of Defendant 7-Eleven, Inc., is

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proceeding pro se and suing 7-Eleven for business negligence, racial discrimination, and

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professional misconduct. 7-Eleven moved for summary judgment on August 15, 2018

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(ECF No. 31), and Khamis sought an extension of time to respond based on his lengthy

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and unsuccessful efforts to find representation (ECF No. 34; see also ECF No. 36 at 2).

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The Court granted Khamis’s request, and Khamis had until October 18, 2018, to file a

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response to 7-Eleven’s motion for summary judgment. (ECF No. 36.) To date, Khamis has

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not responded. For the following reasons, the Court grants 7-Eleven’s motion for summary

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judgment.

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II.

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BACKGROUND
Khamis brings three claims titled business negligence, racial discrimination, and

professional misconduct. (ECF No. 1-1 at 5-7.)

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In support of the business negligence claim, Khamis alleges the following. 7-Eleven

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did not pay his bills or renew important licenses such as money order licenses and EBT

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food stamp program licenses. (Id. at 5.) 7-Eleven made accounting errors that resulted in

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massive shortages and forced him to sell his franchise. (Id.) 7-Eleven did not renew his

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store front or offer support during his divorce but did renew a storefront for a new

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franchisee. (Id.) 7-Eleven neglected to pay Khamis’s employers’ insurance, requiring

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Khamis to engage in discussions with the state attorney general. (Id.) Khamis’s gaming

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license has been put on hold pending investigation. (Id.) Khamis was required to pay fines

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and penalties because of 7-Eleven’s accounting errors. (Id.)

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In support of the racial discrimination claim, Khamis alleges that the following.

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7-Eleven field representative Scott Teachnor called Khamis a racial slur and said “go back

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to your country” when Khamis asked Teachnor to leave the store because Teachnor had

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been drinking. (Id. at 6.) Khamis told 7-Eleven district managers, but they promoted

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Teachnor to a New York market with more pay. (Id.) Another field representative, Dorothy

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Claypool, made a racially discriminatory comment to him based on the following series of

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events. (Id.) U.S. soldiers in Iraq erected a mock 7-Eleven storefront and sent the picture

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to 7-Eleven’s corporate managers as an expression of gratitude for a care package

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7-Eleven had sent. (Id.) Claypool had an image of the mock storefront as a screensaver

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on her laptop. (Id.) Claypool knew that Khamis wanted a second store. (Id.) When the

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picture came up on her laptop, Claypool said the following and then laughed loudly: “Look

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Arthur you can go back to your own country and franchise your 2nd store, it[‘]s made for

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you.” (Id.) Khamis brought this to “everyone’s” attention but no action was taken. (Id.) The

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Court construes Khamis’s claim for racial discrimination as a claim arising under 42 U.S.C.

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§ 1983 because Khamis filed his Complaint on a form titled “Civil Rights Complaint

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Pursuant to 42 U.S.C. § 1983.” (See id. at 1.)

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In support of the professional misconduct claim, Khamis alleges that an individual

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named “Cindy Ricardson [sic]” did nothing to Scott Teachnor after he made racially

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discriminatory comments to Khamis. (Id. at 7.) Khamis further alleges that an individual

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named Chuck Kronayk did nothing to Dorothy Claypool (Id.) Khamis asserts that this is

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evidence of racial discrimination underlying the problems he experienced with 7-Eleven

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as described in his clam for business negligence. (Id.) Khamis believes that 7-Eleven used

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the “churning” effect to flip Khamis’s store. (Id.) Khamis references “churning” through his

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Complaint and refers to the Court to a website for additional information about “churning.”

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(See, e.g., id.)

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III.

LEGAL STANDARD

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Summary judgment is appropriate when the pleadings, the discovery and

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disclosure materials on file, and any affidavits “show that there is no genuine issue as to

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any material fact and that the moving party is entitled to a judgment as a matter of law.”

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is genuine “if the evidence is

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such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is material if it could affect

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the outcome of the suit under the governing law. Id.

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Summary judgment is not appropriate when “reasonable minds could differ as to

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the import of the evidence.” See id. at 250-51. “The amount of evidence necessary to raise

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a genuine issue of material fact is [that which is] enough ‘to require a jury or judge to

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resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718

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F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S.

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253, 288-89 (1968)). Decisions granting or denying summary judgment are made in light

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of the purpose of summary judgment “to avoid unnecessary trials when there is no dispute

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as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d

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1468, 1471 (9th Cir. 1994).

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The moving party bears the burden of showing that there are no genuine issues of

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material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the

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moving party satisfies the requirements of Rule 56, the burden shifts to the party resisting

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the motion to “set forth specific facts showing that there is a genuine issue for trial.”

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Anderson, 477 U.S. at 256. In evaluating a summary judgment motion, a court views all

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facts and draws all inferences in the light most favorable to the nonmoving party. In re

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Slatkin, 525 F.3d 805, 810 (9th Cir. 2008). If a party relies on an affidavit or declaration to

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support or oppose a motion, it “must be made on personal knowledge, set out facts that

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would be admissible in evidence, and show that the affiant or declarant is competent to
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testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). The nonmoving party “may not rely

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on denials in the pleadings but must produce specific evidence, through affidavits or

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admissible discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc.,

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929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is

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some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783

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(9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s

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position will be insufficient . . . .” Anderson, 477 U.S. at 252.

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Allegations in pro se complaints are held to less stringent standards than formal

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pleadings drafted by lawyers and must be liberally construed. See Hughes v. Rowe, 449

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U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); see also

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Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir. 2011); Balistreri v. Pacifica Police Dep’t,

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901 F.2d 696, 699 (9th Cir. 1990).

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IV.

DISCUSSION

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A.

§ 1983 Claim

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7-Eleven argues that Khamis’s claim for racial discrimination fails because Khamis

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has not alleged that 7-Eleven acted under color of law. (ECF No. 31 at 8.) The Court

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agrees and will grant summary judgment in favor of 7-Eleven on Plaintiff’s § 1983 claim.

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See West v. Atkins, 487 U.S. 42, 48-49 (1988) (“To state a claim under § 1983, a plaintiff

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must allege the violation of a right secured by the Constitution and laws of the United

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States, and must show that the alleged deprivation was committed by a person acting

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under color of state law.”).

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B.

Business Negligence and Professional Misconduct Claims

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7-Eleven argues that Khamis’s claims for business negligence and professional

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misconduct fail because there are no such causes of action under Nevada or federal law.

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(ECF No. 31 at 13.) The Court agrees that Khamis’s claim for professional misconduct,

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even liberally construed, is unsupported by any viable legal theory. (See ECF No. 1-1 at

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7.) And while Khamis’s claim for business negligence might be liberally construed as a
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breach of contract claim, Khamis has failed to identify any contractual obligations that

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7-Eleven breached. (See id. at 5.)

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In addition, Khamis signed a release of all claims against 7-Eleven arising out of

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their franchise relationship. (ECF No. 31 at 9; see also ECF No. 31-2 at 15-16.) While the

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release bears only Khamis’s signature and not the signature of a 7-Eleven representative,

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the release is still enforceable because the parties performed under the attendant

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settlement agreement, with 7-Eleven forbearing to terminate the franchise agreement

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while Khamis sold the franchise (ECF No. 31 at 11). See Conner v. United Rentals, Inc.,

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No. 3:06-cv-00618-BES-VPC, 2009 WL 10696203, at *2 (D. Nev. May 8, 2009) (“[A]

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written agreement may be effective even if both parties have not signed it, if the parties

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otherwise demonstrate an intent to have a contract.”); Baran v. Venetian Casino Resort,

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LLC, No. 2:07-CV-1438-LDG-PAL, 2008 WL 4446994, at *2 (D. Nev. Sept. 26, 2008) (“A

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contract need not be signed, and the statute of frauds does not bar its enforcement if the

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parties accept and adopt the contract and assent to its terms . . . .”). Importantly, Khamis

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does not dispute that the release is enforceable or that the parties performed under the

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attendant settlement agreement.
Accordingly, the Court will grant summary judgment in favor of 7-Eleven on

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Khamis’s claims for business negligence and professional misconduct.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the motion before

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the Court.

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It is therefore ordered that Defendant 7-Eleven’s motion for summary judgment

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(ECF No. 31) is granted. The Clerk of the Court is instructed to enter judgment in favor of

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7-Eleven and close this case.

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DATED THIS 23rd day of October 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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