MEMORANDUM

BLAKE, Judge

Plaintiffs Helen Anderson, Kim Colwell, and Russell Colwell have sued Tierco Maryland Inc. t/a Six Flags America ("Tierco") and John Does, alleging that while Plaintiffs were paying patrons at Six Flags America, an amusement park, defendants John Does, who were Tierco employees, agents and/or servants, violated their civil rights under 42 U.S.C. § 1981. Plaintiffs also bring actions for assault, battery, and false imprisonment against Defendants John Does. Finally, Plaintiffs sue Tierco for the negligent hiring and retention of Defendants John Does, as well as under a respondeat superior theory of liability. Defendants have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), alleging that the court lacks subject matter jurisdiction under 28 U.S.C. § 1331. No hearing is deemed necessary. See Local Rule 105.6. For the reasons stated below, Defendants' motion to dismiss will be denied.

BACKGROUND

According to the complaint, on or about August 28, 1999, Plaintiffs purchased admission to Six Flags America, an amusement park located in Largo, Maryland and owned and operated by Tierco. Compl. ¶¶ 8, 10. While Mr. Colwell was waiting in line at one of the rides, an employee of Tierco accused him of "line jumping" and instructed him to get out of the line. Id. ¶ 11. Defendants John Does then forcibly removed Mr. Colwell from the line by grabbing and choking him. They also bent him over a railing and placed him in handcuffs. Id. ¶¶ 12, 13. Upon witnessing the actions of Defendants John Does towards Mr. Colwell, Ms. Colwell and Ms. Anderson asked the Defendants why Mr. Colwell was being treated that way. Id. ¶ 14. Defendants John Does responded by "physically and verbally assault[ing]" both women; one of the Defendants grabbed Ms. Anderson by the neck and arm and repeatedly smashed her face and body against a fence. Id. ¶¶ 16, 17. Defendants John Does also restrained and confined Ms. Colwell and Ms. Anderson against their will. Id. ¶¶ 16, 18. While these actions were occurring, Defendants John Does, who were black, used racial epithets towards Plaintiffs, who are white. Id. ¶¶ 50, 53, 57. Moreover, Plaintiffs allege that Defendants John Does have a repeated course of discriminatory practice towards white patrons at Six Flags Amusement Park. Id. ¶¶ 52, 55, 58. All three Plaintiffs allege physical and emotional harm resulting from the incident. Id. ¶ 19.

STANDARD OF REVIEW

The plaintiff has the burden of proving that subject matter jurisdiction exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), "the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id. (quoting Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). The district court should grant the Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id.

ANALYSIS

Plaintiffs concede that this court's jurisdiction over their case arises solely from their claims under 42 U.S.C. § 1981. (Pl.'s Opp'n at 1) In their motion to dismiss, Defendants argue that the Plaintiffs can not seek relief under § 1981, and therefore the court lacks subject matter jurisdiction. As the court is unpersuaded by this argument, the Defendants' motion to dismiss will be denied.

Section 1981(a) provides that:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens. . . .

§ 1981(a). Defendants first argue that the phrase "as is enjoyed by white citizens" demonstrates the statute's inapplicability to Caucasians. (Def.'s Mot. Dismiss at 4) This argument, however, is contradicted by even a cursory review of relevant case law. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 286-87 (1976) (holding § 1981 applicable to "racial discrimination in private employment against white persons"); Fiedler v. Marumsco Christian Sch., 631 F.2d 1144, 1149 (4th Cir. 1980) (noting that the plaintiffs, "though white, have standing to sue under § 1981"); Shirkey v. Eastwind Community Dev. Corp., 941 F. Supp. 567, 571 (D.Md. 1996) (finding in favor of a white minister under § 1981 against a potential employer who refused to consider minister for position because he was not African-American). Additionally, the McDonald Court's extensive examination of the legislative history of § 1981 makes apparent the statute's applicability to white citizens. See McDonald, 427 U.S. at 287-296 (quoting several legislators who described the bill as applying to "every race and color" and "white men as well as black men").

Defendants next argue that § 1981's application to Caucasians is limited to allegations of favored treatment of racial minorities over whites in the employment context. (Def.'s Reply at 2) While the majority of cases in which white plaintiffs sought relief under § 1981 have involved the employment relationship, see McDonald, 427 U.S. at 286-87; Harrington v. Harris, 118 F.3d 359, 368 (5th Cir. 1997) (sustaining jury verdict in § 1981 claim brought by white law professors against dean); Shirkey, 941 F. Supp. at 571, white plaintiffs have also successfully sought relief under § 1981 for non-employment related issues, see Fiedler, 631 F.2d at 1150 (discussing interference with a contract for educational service); Central Presbyterian Church v. Black Liberation Front, 303 F. Supp. 894, 901 (E.D.Mo. 1969) (allowing white plaintiffs to proceed under § 1981 on theory that defendants deprived them of equal benefit of laws). Implicit in Plaintiffs' complaint is the allegation that they were ejected from the park because of their race, and that black patrons under similar circumstances would not have been similarly treated. This is sufficient to state a claim under § 1981.

Finally, because Plaintiffs are not members of a racial minority, Defendants argue they can not establish a prima facie case of racial discrimination under § 1981. (Def's Reply at 2 n. 1) The three pronged standard cited by Defendants, however, is merely an alternative proof scheme, designed to allow plaintiffs to use indirect proof of discrimination to meet their burden. It is not the sole means by which a plaintiff may prove her case. The Supreme Court noted as much in McDonald:

Our discussion in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 596 (1973), of the means by which a Title VII litigant might make out a prima facie case of racial discrimination is not contrary. . . . As we particularly noted, however, this "specification . . . of the prima facie proof required . . . is not necessarily applicable in every respect to differing factual situations." Id., at 802 n. 13. Requirement (i) [that plaintiff belong to a racial minority] of this sample pattern of proof was set out only to demonstrate how the racial character of the discrimination could be established in the most common sort of case, and not as an indication of any substantive limitation of Title VII's prohibition of racial discrimination.

McDonald, 427 U.S. at 279 n. 6. Accordingly, Plaintiffs' inability to establish a prima facie case of race discrimination using the McDonnell Douglas type of proof is not fatal to their complaint.

For all the reasons articulated above, Defendants' motion to dismiss will be denied. A separate Order follows.

ORDER

For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:

1. Defendants' motion to dismiss is DENIED: and

2. Copies of this Order and the accompanying Memorandum shall be mailed to counsel of record.

Catherine C. Blake United States District Judge