Godwin v. Tween Brand Inc et al
Filing
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OPINION and ORDER granting 16 Motion to Dismiss for Failure to State a Claim; granting 23 Motion to Dismiss for Failure to State a Claim. Signed by Honorable Cameron McGowan Currie on 6/18/2015.(cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Len Godwin,
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Plaintiff,
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v.
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Tween Brands, Inc., and AlliedBarton
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Security Services, LLC,
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Defendants.
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___________________________________ )
C/A NO. 3:15-1493-CMC
OPINION and ORDER
This matter is before the court on Plaintiff’s second amended complaint alleging violation
of 42 U.S.C. § 1981 and state law causes of action. Plaintiff seeks injunctive relief and monetary
damages. Defendants Tween Brands, Inc. (“Tween”) and AlliedBarton Security Services, LLC
(“AlliedBarton”) each seek dismissal of this action under Rule 12(b)(6). See ECF Nos. 16 & 23.
Plaintiff has responded in opposition to Defendants’ motions, and the matter is ripe for resolution.
I. STANDARD
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
(2007)). Although a court must accept as true all factual allegations contained in a complaint, such
deference is not accorded to legal conclusions stated therein. Id. The mere recital of elements of a
cause of action, supported only by conclusory statements, is not sufficient to survive a motion made
pursuant to Rule 12(b)(6). Id.
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Moreover, to survive such a motion, a complaint must state a “plausible claim for relief.”
Id. The determination whether a complaint adequately states a plausible claim is a “context-specific
task,” id. at 679, in which the factual allegations of the complaint must be examined to assess
whether they are sufficient “to raise a right to relief above the speculative level,” Twombly, 550 U.S.
at 555. Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is
“probable,” the complaint must advance the plaintiff's claim “across the line from conceivable to
plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). See also Elyazidi v. SunTrust
Bank, 780 F.3d 227, 233 (4th Cir. 2015) (internal quotation marks and citations omitted) (same).
II. BACKGROUND
On July 11, 2014, Plaintiff, an African-American male, entered a clothing store called
“Justice” located at the Village at Sandhill shopping center in Columbia, South Carolina. See
Second Am. Compl. (“Complaint”) at ¶¶ 10, 12, 28, 29, ECF No. 10. Plaintiff was wearing baggy
pants and a backwards-facing baseball cap. Id. at ¶ 29. Plaintiff shopped for some period of time
and noticed he was being watched by a female AlliedBarton security guard, who spoke with someone
on her walkie-talkie and was then joined by a male AlliedBarton security guard. Id. at ¶¶ 11, 13, 14.
Plaintiff took items that he wished to purchase to the register as there were no shopping carts. Id.
at ¶ 17. As Plaintiff continued to shop, the security guard (the Complaint does not specify which
one) continued to watch him. Id. Plaintiff was approached by a store manager, who asked if
Plaintiff needed assistance shopping, which Plaintiff declined. Id. at 18-19. The store manager then
told Plaintiff he needed to leave the store. Id. at 20. Plaintiff was told “he had been shopping too
long.” Id. at 21. Plaintiff purchased some items and proceeded to leave the store. Id. at ¶ 25, 32.
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As the Plaintiff approached the exit, the male AlliedBarton security guard continued to watch him,
so Plaintiff asked the security guard why he was being watched. Id. at ¶ 26–27. The security guard
responded that he was just doing his job and said, “You know what this is all about . . . PBS . . .
profiling black while shopping.” Id. at ¶ 28. Plaintiff then confronted the store manager and security
guard, neither of whom denied that he was racially profiled nor could they provide a
non-discriminatory basis for the profiling. Id. at ¶¶ 36–37. After Plaintiff made his purchases and
departed the store, he decided to return the purchased items “due to the treatment he received.” Id.
at 32. The store manager did not question why Plaintiff was returning the items, even though
Plaintiff “had purchased the items only minutes before . . . .” Id. at 34. There is no allegation in the
Complaint that Plaintiff did not receive a full refund for the items he purchased.
Plaintiff filed suit in this court, alleging violation of 42 U.S.C. § 1981, violation of S.C. Code
Ann. § 45-9-10, et seq., intentional infliction of emotional distress, and negligence. Plaintiff alleges
that as a result of these acts or omissions, he has suffered a variety of physical and mental problems
and lost employment opportunity.
III. DISCUSSION
A. Federal Law Claim – 42 U.S.C. § 1981
Plaintiff alleges that Defendants, by and through their agents, “engaged in conduct intended
to interfere, and which did so interfere, with Plaintiff’s ability to make such contracts [for the
purchase of goods] on the basis of Plaintiff’s race.” Compl. at ¶ 43. Defendant Tween maintains
that Plaintiff has failed to identify a transaction that it (Tween) prevented. M. to Dism. at 2-4, ECF
No. 23. Defendant AlliedBarton argues that simple monitoring of a retail shopper fails to provide
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basis for a complaint under § 1981, and that it (AlliedBarton) did not thwart or deny Plaintiff’s
ability to make his purchases or (ultimately) return his purchases. Memo. in Supp. of M. to Dism.
at 3-8, ECF No. 16-1. Plaintiff argues in reply that the court should apply a test adopted by the
Sixth Circuit in Christian v. Wal-Mart Stores, Inc., 252 F.3d 862 (6th Cir. 2001), to deny
Defendants’ motions, or in the alternative, that Plaintiff has set forth sufficient factual allegations
to survive the dismissal motions. See Resp. in Opp. at 7, ECF No. 26.
Section 1981 provides that “[a]ll persons ... have the same right ... to make and enforce
contracts ... as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). “Make and enforce contracts”
includes “the making, performance, modification, and termination of contracts . . . .” Id. § 1981(b).
To prove a § 1981 claim in the retail establish context, Plaintiff must ultimately establish both that
Defendants “intended to discriminate on the basis of race, and that the discrimination interfered with
a contractual interest.” Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 434 (4th Cir. 2006).1
While § 1981 prohibits racial discrimination in “all phases and incidents” of a contractual
relationship, Rivers v. Roadway Express, Inc., 511 U.S. 298, 302 (1994), the statute does not impose
1
When a plaintiff cannot introduce direct evidence that his rights were denied by intentional
discrimination, he must proffer circumstantial evidence to satisfy the McDonnell Douglas analytical
framework. Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir.2004) (to establish prima facie case
of discrimination under § 1981, plaintiff must establish that: “(1) he is a member of a protected class;
(2) he sought to enter into a contractual relationship with the defendant; (3) he met the defendant’s
ordinary requirements to pay for and to receive goods or services ordinarily provided by the
defendant to other similarly situated customers; and (4) he was denied the opportunity to contract
for goods or services that was otherwise afforded to white customers.”). In this case, Plaintiff
alleges, and Defendants do not deny, for purposes of these motions, direct evidence of
discrimination. Plaintiff also argues that the Fourth Circuit has not “addressed the standard for §
1981 cases involving direct-evidence . . . .” Resp. in Opp. at 6, ECF No. 26. This is incorrect. See
Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427 (4th Cir. 2006).
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a general prohibition against race discrimination or provide a private right of action for perceived
race discrimination of any kind in the retail context. Domino’s Pizza, Inc. v. McDonald, 546 U.S.
470, 479 (2006) (“[N]othing in the text of § 1981 suggests that it was meant to provide an omnibus
remedy for all racial injustice.”); Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th
Cir. 2001) (same).
Plaintiff offers no allegations that he was denied the ability to purchase the items he had
taken to the register for purchase, or that there were items he intended to purchase but did not
because of Defendants’ alleged actions. Moreover, as noted by Defendant AlliedBarton, Defendant
was not only able to purchase all the items he intended to purchase, but he also was able to return
the same items a short time later, and was therefore “able to contract with the store not once, but
twice.” Mem. Supp. of Mot. to Dism at 8, ECF No. 16-1.
Plaintiff’s assertion that the court should apply the test adopted by the Sixth Circuit in
Christian is rejected. Plaintiff presents allegations of direct evidence of discriminatory acts –
“profiling black while shopping[,]” Compl. at ¶ 28, and that neither the store manager nor security
guard denied that he was racially profiled nor could they provide a non-discriminatory basis for the
profiling. The Christian test, to the extent persuasive in this Circuit, applies to the establishment of
a prima facie case of discrimination where Plaintiff proceeds via the presentation of circumstantial
evidence of racial discrimination in a § 1981 case. Once a prima facie case is established, a court
proceeds to apply the familiar McDonnell-Douglas2 burden shifting framework to determine whether
a triable issue of material fact exists.
2
Plaintiff presents direct evidence of alleged racial
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
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discrimination; therefore, the establishment of a prima facie case and the application of the burdenshifting framework are inapplicable to this matter.
Plaintiff has failed to allege that he was prevented from making or enforcing a contract with
Defendant Tween, or that he was denied “all benefits, privileges, terms, and conditions of the
contractual relationship.” 41 U.S.C. § 1981(b). Accordingly, Defendants’ motions are granted and
Plaintiff’s claim for relief under § 1981 is dismissed with prejudice.
B. State Law Claims
It is this court’s customary practice to decline to exercise supplemental jurisdiction over state
law claims when the federal claims are dismissed in advance of trial. 28 U.S.C. § 1367; United Mine
Workers v. Gibbs, 383 U.S. 715 (1966). As the Fourth Circuit explained in Taylor v. Waters, 81
F.3d 429, 437 (4th Cir. 1996), the decision to decline the exercise of supplemental jurisdiction after
dismissal of the original jurisdiction claim will “hinge on the moment within the litigation when the
dismissal of the touchstone claim takes place . . . .” (quoting 28 U.S.C. § 1367, practice commentary
(West 1993)). Where the original jurisdiction claim is dismissed before trial, the state claims should
be dismissed as well. Gibbs, 383 U.S. at 717; Taylor, 81 F.3d at 437. The court notes that 28 U.S.C.
§ 1367(d) provides that “[t]he period of limitations for any [state law claim asserted under 1367(a)]
. . . shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it
is dismissed unless State law provides for a longer tolling period.” The constitutionality of this
statute was upheld in Jinks v. Richland County, 538 U.S. 456 (2003).
Accordingly, the court declines to exercise jurisdiction over Plaintiff’s state law claims, and
they are dismissed without prejudice.
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IV. CONCLUSION
Defendants’ motions to dismiss are granted. Plaintiff’s complaint is dismissed with prejudice
as to Plaintiff’s federal cause of action. Plaintiff’s second, third, and fourth causes of action are
dismissed without prejudice.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
SENIOR UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
June 18, 2015
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