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
Before the court for preliminary review is pro se plaintiff
Eric Drake’s first amended complaint (“FAC”). Plaintiff filed
his FAC in response to a previous report and recommendation in
which the court determined that Drake’s original complaint
“failed to state a discrimination claim under federal law,” doc.
no. 4, at 7, and also failed to satisfy the amount-in-
controversy requirement for diversity jurisdiction set out in 28
U.S.C. 1332(b). Even so, Drake was given leave to file a motion
to amend his complaint to: (1) satisfy the amount-in-controversy
requirement; and/or (2) “allege facts sufficient to establish
disparate treatment, i.e., the third element of a § 1981 claim,”
R. & R. (doc. no. 4), 8. For the reasons that follow, the claim
under 42 U.S.C. § 1981 that Drake asserts in Count 6 of his FAC
should be dismissed for failure to state a claim, and the rest
of his claims should be dismissed for lack of subject-matter
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jurisdiction.
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
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
Drake’s original complaint asserted six claims against
Mitch Rosen Extraordinary Gunleather, LLC (“Mitch Rosen” or
“MR”). Generally speaking, Drake’s claims arose from his
dissatisfaction with Mitch Rosen’s manufacture of a $175 holster
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he had ordered, and his dissatisfaction with the manner in which
one or more MR employees responded to complaints he made about
the holster after he received it. Five of Drake’s claims were
brought under state law. The remaining cause of action was
captioned “Discrimination,” and while Drake cited no legal
authority for that cause of action, the court construed it to be
a federal claim. After discussing several potential federal
grounds for a discrimination claim, the court concluded that the
only viable one was 42 U.S.C. § 1981. Accordingly, the court
described the elements of a prima facie case under § 1981, and
determined that Drake had failed to allege facts sufficient to
satisfy the third element, i.e., that he had been “treated less
favorably . . . than . . . similarly situated persons who [were]
not members of the protected class.” R. & R. (doc. no. 4) 5
(quoting Kilgore v. Providence Place Mall, C.A. No. 16-135S,
2016 WL 3092990, at *4 (D.R.I. Apr. 1, 2016)). In his FAC,
Drake asserts eight claims, the six he asserted in his original
complaint, plus a request for a declaratory judgment (Count 7)
and a claim under 42 U.S.C. §§ 1981 and 1991 (Count 6).1
1 Drake’s § 1991 claim is a bit of a mystery. He asserts
that “[d]efendants also conspired to violate 42 USC § 1991.”
FAC (doc. no. 5) ¶ 54 (emphasis added). Section 1991, however,
pertains to fees that must be paid to persons appointed to
execute process under 42 U.S.C. § 1989, and plaintiff alleges no
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Discussion
In its previous Report and Recommendation, the court gave
the following example of allegations sufficient to satisfy the
third element of a § 1981 claim:
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
[v. Waffle House, Inc.], 365 F. Supp. 2d 1332 [(N.D.
Ga. 2005)]; 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.
Kilgore, 2016 WL 3092990, at *4.
In support of his § 1981 claim, Drake does not allege that
any other Mitch Rosen customer, who was not a member of a racial
minority and who complained about MR merchandise in
approximately the same way that he did, received a more
favorable responses than he did. In other words, he still has
not alleged facts that satisfy the disparate-treatment element
of his § 1981 claim.
Rather than taking the traditional route, Drake attempts to
facts concerning the execution of process under § 1989. Because
plaintiff’s purported § 1991 claim is legally unintelligible,
the court construes Count 6 as asserting only a § 1981 claim.
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allege disparate treatment in the following way. First, he
alleges that on March 13, 2015, he telephoned Mitch Rosen to
complain that the holster received from MR did not fit the gun
for which he had ordered it. He further alleges that the MR
employee with whom he spoke could tell from his voice that he
was African American, and as a result, refused to: (1) let him
speak with MR’s owner, Mitchell Rosen; or (2) remake the
holster.2 To demonstrate disparate treatment, he alleges:
Plaintiff made contact with MR on January 31, 2017,
and inquired about MR manufacturing gun leather for a
Sig Sauer. However, this time, the Plaintiff told MR
employees that he was an advisor for law enforcement,
as he was previously employed. The Plaintiff also
altered his voice to sound more like a Caucasian,
rather than a black man. Unlike previous requests,
Plaintiff was directed to Mr. Rosen. Plaintiff asked
an MR employee what if the leather for the gun just
will not fit for whatever reason, would you remake it
since I am willing to wait . . . a couple of months to
have the original holster manufactured? The Plaintiff
was assured that if the holster did not fit the gun,
that Mitch Rosen would make it right. However, MR
refused to remake the holster for the Plaintiff who
they knew was black by his voice, and MR knew the
Plaintiff was an African American, because he told
them on at least one occasion that you are treating
[me] like this because I am African American. MR
would not consider making the holster right for the
Plaintiff, who they knew was black.
2 Nowhere does Drake allege that any Mitch Rosen employee
ever said anything about his race, disparaging or otherwise.
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FAC (doc. no. 5) ¶ 12.3
Drake’s attempt to allege facts that establish disparate
treatment misses the mark. Most importantly, the Caucasian that
Drake pretended to be in 2017 was not in the same situation that
Drake himself was in at the time of the events in 2015 that gave
rise to his claims. A prospective customer calling to ask about
Mitch Rosen’s return policy, in the abstract, is not the same as
an actual customer calling to complain about a purportedly
defective product. And Drake alleges that in 2017, he
identified himself as a law-enforcement advisor, while he does
not allege that he did so in 2015, which introduces yet another
variable into the equation. Thus, the telephone interactions in
2015 and 2017, as alleged, were too different for the latter to
provide a plausible basis for claiming that the poor treatment
that Drake claims to have received during the former was
motivated by racism. What Drake needed to allege was that a
3 Whether the court must presume that the Mitch Rosen
employee Drake spoke with in 2015 thought that he sounded black,
and whether the court must presume that the MR employee Drake
spoke with in 2017 thought that he sounded white, are
interesting legal questions that the court need not resolve.
However, given Drake’s unambiguous allegation that he mentioned
his race to an MR employee only after the treatment he claims to
have been racist, his express disclosure of his race could not
have been causally linked to the treatment on which he bases his
§ 1981 claim.
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white customer, calling Mitch Rosen to complain about an
allegedly ill-fitting holster and exhibiting the same demeanor
he exhibited during his March 2015 telephone conversation, was
treated better than he was treated. In short, the real black
Drake of 2015 and the ersatz white Drake of 2017 were in such
different situations that plaintiff’s attempt to be both the
victim of racism and proof of disparate treatment does not
result in factual allegations that are sufficient to establish
the disparate-treatment element of a § 1981 claim.
Absent a viable federal claim, Drake’s FAC must be
dismissed unless he has adequately alleged damages for his
state-law claims that satisfy the $75,000 amount-in-controversy
requirement for diversity jurisdiction. He has not. As the
court has noted, plaintiff asserted five claims under state law
in his original complaint. Those five claims all appear in
plaintiff’s FAC, and the exact same language is used in both
complaints. Indeed, plaintiff’s only assertion that his damages
exceed $75,000 appears in his § 1981 claim. See FAC ¶ 56.
Accordingly, Drake has failed to state claims under state law
that cross the amount-in-controversy threshold necessary to
establish diversity jurisdiction.
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Conclusion
Because plaintiff has failed to state a § 1981 claim upon
which relief can be granted, and has failed to assert state-law
claims over which this court may properly exercise diversity
jurisdiction, his FAC, document no. 5, should be dismissed.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 3, 2017
cc: Eric Drake, pro se
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