Drake v. Mitch Rosen Extraordinary Gunleather, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Eric Drake
v. Case No. 16-cv-527-JL
Mitch Rosen Extraordinary
Gunleather, LLC
REPORT AND RECOMMENDATION
Appearing pro se, Eric Drake has sued Mitch Rosen
Extraordinary Gunleather, LLC (“Mitch Rosen”), in six counts.
Drake’s claims arise from his dissatisfaction with a holster he
ordered from Mitch Rosen, and his dissatisfaction with the
response he received from Mitch Rosen after he complained about
the holster. His complaint is before the court for preliminary
review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
Standard of Review
When determining whether a pro se pleading states a claim,
the court construes it liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). To make its determination, the court
disregards any legal conclusions and then decides whether the
facts alleged in the pleadings, and the inferences reasonably
drawn from them, if taken as true, state a claim to relief that
is facially plausible. See Hernandez-Cuevas v. Taylor, 723 F.3d
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91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). On preliminary review, the court may dismiss
the complaint if the pleading “fails to state a claim on which
relief may be granted,” or if the court lacks subject-matter
jurisdiction over any of the claims that the pleading does
adequately state. 28 U.S.C. § 1915(e)(2), 1915A; LR 4.3(d)(2).
Background
The facts recited in this section are drawn from Drake’s
complaint. Drake ordered a holster from Mitch Rosen by sending
the company $175. Mitch Rosen confirmed the order by e-mail.
When Drake received the holster, it did not fit the firearm for
which he had ordered it. When he contacted Mitch Rosen and
asked to speak with Mr. Mitchell Rosen, employees of the company
blocked his access to Mr. Rosen. In response to numerous e-
mails asking Mitch Rosen to remake the holster, the company
refused to do so, and its employees were discourteous. In
addition, they informed Drake, by e-mail, that Mitch Rosen would
not refund the cost of the holster and told him that he had
abused it. According to Drake, Mitch Rosen employees treated
him that way because he is African American.
Based on the foregoing, Drake asserts state-law claims for:
specific performance (Count 1), breach of implied warranty
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(Count 2), deceptive and unfair trade practices (Count 3),
negligence and negligent misrepresentation (Count 4), and
intentional infliction of emotional distress (Count 6). In
addition, he asserts a federal claim for racial discrimination
(Count 5). With respect to his state-law claims, the primary
relief he seeks is an order compelling Mitch Rosen to make him
the holster he originally ordered plus five other holsters of
his choice.
Discussion
Given that Drake’s state-law claims are rooted in a dispute
over a holster that sells for $175, those claims do not cross
the $75,000 amount-in-controversy threshold that they must reach
to give this court original jurisdiction over them. See 28
U.S.C. § 1332(a); see also Kilgore v. Providence Place Mall,
C.A. No. 16-135S, 2016 WL 3092990, at *3 (D.R.I. Apr. 1, 2016),
R & R adopted by 2016 WL 3093450 (June 1, 2016) (“for diversity
jurisdiction [under § 1332] to be available, the claim must
either seek a monetary judgment or an injunction with a
pecuniary consequence of more than $75,000”) (citing Richard C.
Young & Co. v. Leventhal, 389 F.3d 1, 3 (1st Cir. 2004)). Thus,
the court’s subject-matter jurisdiction hinges upon whether
Drake has stated a federal claim on which relief can be granted.
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See 28 U.S.C. § 1331.
In his complaint, Drake bases his racial discrimination
claim on 42 U.S.C. § 1981 and, perhaps, the United States
Constitution. If he is “asserting a claim for race
discrimination in violation of the Fourteenth Amendment,”
Kilgore, 2016 WL 3092990, at *4, that claim “must be asserted
pursuant to 42 U.S.C. § 1983,” id. However, “[t]o state a claim
under § 1983, a plaintiff must . . . show that the alleged
deprivation [of a constitutional right] was committed by a
person acting under color of state law.” Id. (quoting West v.
Atkins, 487 U.S. 42, 48 (1988)). Because Drake has alleged no
facts showing, or from which one could reasonably infer, that
Mitch Rosen was anything other than a private company,
Drake has not stated a claim under § 1983. That leaves his
claim under § 1981.
“42 U.S.C. § 1981 . . . ensures that ‘all persons . . .
shall have the same right . . . to make and enforce contracts .
. . as is enjoyed by white citizens . . . .’” Kilgore, 2016 WL
3092990, at *3. To state a prima facie case under § 1981, a
plaintiff
must plausibly plead that he: (1) is a member of a
protected class; (2) that the allegedly discriminatory
conduct concerned one or more of the activities
enumerated in the statute; i.e., the making,
performance, modification, or termination of
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contracts, or the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
relationship; and (3) was treated less favorably with
regard to his enjoyment of the benefits of the
contractual relationship than the similarly situated
persons who are not members of the protected class.
Id. at *4 (citing Slocumb v. Waffle House, Inc., 365 F. Supp. 2d
1332, 1338 (N.D. Ga. 2005)). The problem is that Drake has not
plausibly plead the third element of a § 1981 claim. That is,
he does not allege, in any way, that Mitch Rosen treated him
less favorably than it treated its white customers.1 Absent such
an allegation, Drake has failed to state a claim on which relief
may be granted under § 1981.
For the sake of completeness, the court concludes by
turning briefly to another possible federal cause of action
identified by the court in Kilgore. In that case, the plaintiff
1 As to the kinds of allegations that do establish the third
element of a § 1981 claim, the court turns to Kilgore:
To illustrate what would satisfy the standard, Brown
[v. Luxor Hotel & Casino, No. 2:14-CV-00991-MMD, 2014
WL 2858488 (D. Nev. June 23, 2014)] pointed to
Slocumb, 365 F. Supp. 2d 1332; Slocumb considered the
claim of an African-American family, which was found
to be sufficient in that it alleged that the family
was treated less favorably than similarly situated
persons based on evidence that a hostess seated and
served several white families prior to seating and
serving them, despite their arriving to the restaurant
first. Id. at 1339-40.
2016 WL 3092990, at *4.
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asserted a claim for racial discrimination, but did not name any
particular statute. See 2016 WL 3092990, at *3. On preliminary
review, Magistrate Judge Sullivan “examined what appear[ed] to
be the essence of [the plaintiff’s] claim – harassment by a
security guard of a Mall loiterer based on race – and considered
several possible federal claims.” Id. Specifically, she
considered both § 1981 and “42 U.S.C. § 2000a(a), which
prohibits race discrimination in places of public
accommodation.” Id.
To state a prima facie case of discrimination under §
2000a, a plaintiff
must plausibly plead that he: (1) is a member of a
protected class; (2) attempted to exercise the right
to full benefits and enjoyment of a place of public
accommodations; (3) was denied those benefits and
enjoyment; and (4) was treated less favorably than
similarly situated persons who are not members of the
protected class.
Id. (citing Brown v. Luxor Hotel & Casino, No. 2:14-CV-00991-
MMD, 2014 WL 2858488, at *2 (D. Nev. June 23, 2014)). The
fourth element of a § 2000a claim and the third element of a §
1981 claim are “substantially similar.” Kilgore, 2016 WL
3092990, at *4 (citing Slocomb, 365 F. Supp. 2d at 1342).
Because Drake’s complaint does not satisfy the third element of
a § 1981 claim, it necessarily fails to satisfy the fourth
element of a § 2000a claim. Moreover, Drake has not pleaded
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facts that would establish the second element of a § 2000a
claim. “Section 2000a’s prohibition on race discrimination
applies to the places of public accommodation itemized in §
2000a(b), including hotels, restaurants, theaters, sports arenas
and other places of eating, entertainment or exhibition.”
Kilgore, 2016 WL 3092990, at *3. Drake has not alleged that he
purchased his holster from Mitch Rosen in any of the places of
public accommodation that are itemized in § 2000a(b). Thus, his
complaint does not satisfy the second element of a § 2000a
claim.2
Conclusion
For the reasons detailed above, Drake has failed to state a
discrimination claim under federal law, and the court lacks
subject-matter jurisdiction over his state-law claims. However,
on the chance that Drake may have one or more colorable claims
against Mitch Rosen, and in the interest of ensuring that he has
an opportunity to litigate any such claims, the court will grant
Drake leave to file a motion to amend his complaint.
2 Moreover, given Drake’s allegations that he communicated
with Mitch Rosen by mail, by e-mail, and over the telephone,
there appears to be no factual basis for his conclusory
assertion that Mitch Rosen “understood that the Plaintiff[’s]
race was African American.” Compl. (doc. no. 1) ¶ 43.b.
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By February 17, 2017, Drake must file a motion to amend his
complaint to:
1. satisfy the amount-in-controversy requirement
stated in 28 U.S.C. § 1332(a); and/or
2. allege facts sufficient to establish disparate
treatment, i.e., the third element of a § 1981
claim.
If he fails to do so, or presents an amended complaint that is
still deficient, this magistrate judge will advise the district
judge to dismiss Drake’s complaint without prejudice.
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 17, 2017
cc: Eric Drake, pro se
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