Opinion
Case No. 6:99-cv-110-Orl-28KRS
January 10, 2001
ORDER
Plaintiffs brought this action against Acadia Realty Trust, Inc. ("Acadia"), City of Titusville ("Titusville"), Sears Town Mall Association, Inc. ("STMA"), and Wells Fargo Guard Service, Inc. of Florida ("Wells Fargo") alleging that their rights were violated because of their opposition to Defendants' racial discrimination against others. Plaintiffs contend that they were improperly "trespassed" from the SearsTown Mall in Titusville after they complained about Defendants' treatment of black children at the mall.
This cause is currently before the Court on Acadia's Motion to Dismiss Plaintiffs' Third Amended Complaint (Doc. 68) and Wells Fargo's Motion to Dismiss Plaintiffs' Third Amended Complaint (Doc. 63). STMA and Titusville also filed Motions to Dismiss (Docs. 59 and 61); however. Plaintiffs' claims against those Defendants have been settled and those motions, as well as others relating to those Defendants, will be denied as moot.
Since the issuance of a Report and Recommendation on the foregoing motions, Plaintiffs have filed a Motion To Amend (Doc. 167) with an attached proposed Verified Fourth Amended Complaint, and a Motion to Supplement or Amend Complaint (Doc. 177) with an attached proposed Verified Fifth Amended Complaint. This Order addresses those Motions as well.
I. Motions to Dismiss (Docs. 58 and 63)
The United States Magistrate Judge has submitted a Report and Recommendation (Doc. 94) recommending that the Defendants' Motions (Docs. 58 and 63) be granted in part and denied in part. All parties have filed Objections to the Report and Recommendation, and all parties have filed Responses to the respective Objections.
Specifically, and as discussed in more detail in the text of this Order, the Report recommends that Count I of the Third Amended Complaint be dismissed as to Defendant Titusville only; that Count II of the Third Amended Complaint be dismissed in its entirety as to Defendant STMA; that Count II of the Third Amended Complaint be dismissed as to Defendants Acadia, Titusville, and Wells Fargo on Plaintiffs' claims of freedom of association and right to petition; that Count III of the Third Amended Complaint be dismissed as to all four Defendants; that Counts IV and V be dismissed as to all four Defendants; that Plaintiffs' claims seeking injunctive relief be dismissed; and that the Motions to Dismiss be denied in all other respects. As noted in the text, the issues relating to Defendants STMA and Titusville are now moot.
(Docs. 130, 132, and 134).
(Docs. 145, 149, and 150).
After an independent review of the applicable law and the record in this matter, including the Objections and Responses filed by the parties, the Court agrees almost entirely with the conclusions in the Report and Recommendation, as more specifically set forth below. Accordingly, Defendants' Motions will be granted in part and denied in part. A. Pleading Requirements
In the interest of consistency, this Order to the extent possible follows the format and order of discussion used in the Report and Recommendation.
The Report correctly notes that in reviewing a motion to dismiss, this Court must view the complaint in the light most favorable to the Plaintiff and that a complaint should not be dismissed "unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief." (Doc. 94, at 5) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974), and Conley v. Gibson, 355 U.S. 41 (1957)). However, the Report also states that "in the context of civil rights, there is a heightened pleading requirement and the plaintiff must 'allege with some specificity the facts which make out its claim.'" (Doc. 94, at 5) (quoting GJR Invs. Inc. v. County of Escambia. Florida, 132 F.3d 1359, 1367 (11th Cir. 1998)).
In their Objections (Doc. 134), Plaintiffs contest the Report's statement regarding a heightened pleading requirement. They argue that the holding of GJR has been abrogated and that there is no heightened pleading requirement in civil rights cases. Plaintiffs further argue that even if GJR remains good law, its "heightened pleading requirement" relates only to qualified immunity of government officials, which is not at issue here. The Defendants do not respond to this argument regarding the validity and/or applicability of GJR; only Wells Fargo mentions this contention (Doc. 150), asserting that regardless of whether a heightened pleading standard or a "regular" pleading standard applies, Plaintiffs have failed to allege sufficient facts in support of their civil rights claims.
In GJR, the plaintiff filed suit against the county and four individual defendants under 42 U.S.C. § 1983 for alleged constitutional violations. The defendants moved to dismiss based on qualified immunity. In discussing the qualified immunity defense, the Eleventh Circuit discussed a "heightened pleading requirement":
[W]hile Fed.R.Civ.P. 8 allows a plaintiff considerable leeway in framing its complaint, this circuit, along with others, has tightened the application of Rule 8 with respect to § 1983 cases in an effort to weed out nonmeritorious claims, requiring that a § 1983 plaintiff allege with some specificity the facts which make out its claim. Some factual detail in the pleadings is necessary to the adjudication of § 1983 claims. This is particularly true in cases involving qualified immunity, where we must determine whether a defendant's actions violated a clearly established right. Accordingly, when reviewing a district court's disposition of a motion to dismiss a § 1983 claim on qualified immunity grounds, we are guided by the regular 12(b)(6) standard and by the heightened pleading requirement.132 F.3d at 1367 (citations omitted) (emphasis added). The bolded portion above is quoted in the Report and Recommendation in support of the proposition that there is a heightened pleading requirement in civil rights cases.
In the instant case, there are no claims against individual defendants and no defense of qualified immunity. Hence, Plaintiffs appear correct that GJR is distinguishable. In any event, the United States Supreme Court has held that there is not a heightened pleading requirement in section 1983 actions. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993)V. see also Rev v. Kmart Corp., 1998 WL 656070, *2 (S.D. Fla. July 21, 1998) ("[T]he Court will not apply a standard of heightened specificity, more stringent than the usual pleading requirements of the civil rules, in cases alleging liability under § 1983.") (citing Leatherman). Therefore, Plaintiffs need not satisfy a "heightened" pleading requirement, and no such requirement has been imposed in ruling on Defendants' Motions to Dismiss in this Order To the extent the Report and Recommendation states otherwise, the Report will not be adopted as the Order of this Court. However, the Court agrees with the rest of the Report's conclusions even under the "regular" standard of pleading.
In Leatherman, the Court stated:
We think that it is impossible to square the "heightened pleading standard" applied by the Fifth Circuit in this case with the liberal system of "notice pleading" set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only "a short and plain statement of the claim showing that the pleader is entitled to relief." In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 LEd.2d 80 (1957), we said in effect that the Rule meant what it said:
"[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests."
Id., at 47, 78 S.Ct., at 103 (footnote omitted).
Rule 9(b) does impose a particularity requirement in two specific instances. It provides that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Thus, the Federal Rules do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983. Expressio unius est exclusio alterius.
The phenomenon of litigation against municipal corporations based on claimed constitutional violations by their employees dates from our decision in Monell, supra, where we for the first time construed § 1983 to allow such municipal liability. Perhaps if Rules 8 and 9 were rewritten today, claims against municipalities under § 1983 might be subjected to the added specificity requirement of Rule 9(b). But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation. In the absence of such an amendment, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.507 U.S. at 168-69.
B. Standing
The Report concludes that Plaintiffs have standing to raise the civil rights claims that they allege even though they are not members of a minority. After considering the arguments raised in the objections filed by Wells Fargo and Acadia (Docs. 130 and 132), the Court agrees with the conclusion in the Report that Plaintiffs have sufficiently alleged that they have standing to bring the instant claims.
C. Counts II and III — Claims Under 42 U.S.C. § 1983
In Count II of the Third Amended Complaint, Plaintiffs allege a claim under 42 U.S.C. § 1983 for violation of their rights of free speech, petition, and association under the First and Fourteenth Amendments. The Magistrate's Report recommends, as against Defendants Acadia and Wells Fargo, dismissal of Count II as it relates to freedom of association and right to petition but not as it relates to the claimed violation of free speech rights. Count III of the Third Amended Complaint alleges violation of 42 U.S.C. § 1983 — race-based denial of public accommodation under the Equal Protection Clause of the Fourteenth Amendment. The Report recommends dismissal of this Count in its entirety.
As noted in the Report and Recommendation, "[a] successful section 1983 action requires a showing that the conduct complained of (1) was committed by a person acting under color of state law and (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States." Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992) (citing Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 156-57 (1978)).
Each of these elements will be addressed in turn, along with the appurtenant issues addressed in the Report.
1. State Action
The Report concludes that Plaintiffs have sufficiently alleged state action as to Defendants Wells Fargo and Acadia because Plaintiffs have "alleged that there was a policy or custom to automatically implement and enforce the demands of property owners even if those requests were discriminatory." (Doc. 94, at 10). Accordingly, the Report recommends that Counts II and III not be dismissed against Wells Fargo or Acadia on the basis of lack of state action.
The Court agrees with the Report that under Smith v. Brookshire Brothers. Inc., 519 F.2d 93 (5th Cir. 1975), Plaintiffs have sufficiently alleged that Wells Fargo and Acadia acted in concert with the police pursuant to a custom or plan so as to render Wells Fargo and Acadia state actors, at least for the purposes of the Motions to Dismiss. Hence, the motions to dismiss on this basis will be denied.
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en bane), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down through September 30, 1981.
2. Respondeat Superior (Acadia)
The Report notes that despite the general rule that a corporation cannot be strictly liable on section 1983 claims based on respondeat superior, a corporation may be held liable for the unconstitutional acts of employees where there is a "policy, custom, or action by those who represent official policy" which causes the injury. The Report then recommends that Acadia's motion to dismiss on respondeat superior grounds be denied because "Plaintiffs have alleged a custom or policy of violating rights and evading duties to follow nondiscriminatory policies." (Doc. 94, at 11). Upon consideration, the Court agrees that Plaintiffs have sufficiently alleged an official policy for the purposes of the motions to dismiss.
3. Intention to Violate Rights of Free Speech. Petition, and Association a. Free Speech
The Report concludes that Plaintiffs have sufficiently alleged a violation of their free speech rights against Acadia and Wells Fargo to survive the motions to dismiss. Distinguishing Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), the Report concludes that "it does not appear that Plaintiffs' speech would have been effective had they been in any location other than within the mall where the discrimination occurred." (Doc. 94, at 14). The Report further concludes that "[e]ven if the mall were found to be a nonpublic forum, the restrictions would need to be 'content-neutral and reasonable' to pass constitutional muster." (Doc. 94, at 14). The Report concludes that Plaintiffs have alleged that the restrictions are not content-neutral inasmuch as the "trespass" was allegedly based on the content of their speech. The Court agrees with the Report's conclusions, and Plaintiff's free speech claims are sufficiently alleged to survive the motions to dismiss.
b. Freedom of Association
As noted above, the Report recommends dismissal of the freedom of association claims against all Defendants. The Report notes that there are two forms of constitutionally protected association — "intimate association" and "expressive association." See, e.g., Cumminqs v. DeKalb County, 24 F.3d 1349 (11th Cir. 1994). The Report concludes that Plaintiffs have failed to allege either of these types of association and that therefore their claims should be dismissed. As to "expressive association," the Report states, "Plaintiffs have not alleged that they were associating with the minorities at all, and not for the purpose of expressing their First Amendment rights." (Doc. 94, at 15).
Despite Plaintiffs' objections to the Report's recommendation, the Court agrees that Plaintiffs have failed to allege either expressive or intimate association with the black children. Accordingly, Plaintiffs' freedom of association claims will be dismissed.
c. Freedom of Petition
In their objections (Doc. 134), Plaintiffs concede that their right-to-petition claim should be dismissed. Accordingly, this portion of Count II will be dismissed.
4. Violation of Equal Protection
The Report concludes that Plaintiffs' equal protection claims (Count III) should be dismissed because Plaintiffs have not alleged that "they were treated differently than any other person who was trespassed or than any other person who arguably interfered with the guards' performance of their duties." (Doc. 94, at 16). The Court agrees with this conclusion, and accordingly Count III will be dismissed.
D. Count I — Race-Based Denial of Public Accommodation Under 42 U.S.C.S. 1981
In Count I of their Third Amended Complaint (Doc. 57), Plaintiffs allege a claim under 42 U.S.C. § 1981 for race-based denial of a public accommodation. Plaintiffs contend that they were denied the right to full and equal benefit of laws when they were prohibited from entering the mall for two years. In the Report (Doc. 94), the United States Magistrate Judge recommends that this Count not be dismissed against Acadia or Wells Fargo.
Plaintiffs acknowledge that this prohibition was rescinded after a few months (Doc. 77).
1. Enumerated Rights
As noted in the Report, 42 U.S.C. § 1981 provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
* * *
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
* * *
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of state law.
The Report concludes that Plaintiffs have sufficiently alleged a cause of action against Wells Fargo under this provision because they have alleged that their "trespass" from the mall "affected their ability to contract with merchants in the mall" and "that they were punished in a discriminatory manner and were not treated equally with those who did not defend minorities." (Doc. 94, at 17-18). The Court agrees with the Report's conclusion, and Wells Fargo's motion to dismiss will not be granted on this basis. 2. Racial Animus
The Report concludes that Plaintiffs have "clearly alleged in their complaint that the actions of the Defendants were motivated by racial animus in that they were 'trespassed1 for defending the rights of minorities." (Doc. 94, at 18). The Report thus concludes that Wells Fargo's motion to dismiss on this ground should be denied. The Court agrees with this recommendation.
3. Claims Against State Actors May Only Be Brought Under 42 U.S.C. § 1983
The Magistrate Judge concluded in the Report that any claims against state actors must be brought under 42 U.S.C. § 1983 rather than 42 U.S.C. § 1981 under the decision of the United States Supreme Court inJett v. Dallas Independent School District, 491 U.S. 701 (1989). The Magistrate noted that although the law in the Eleventh Circuit was (at the time of the Report) unsettled as to the continued validity of Jett following the enactment of the Civil Rights Act of 1991, the Magistrate noted that courts in this Circuit have continued to rely on the Jett decision as unaltered by the 1991 Act, even though other courts have found Jett to have been overruled by the legislative change. See, e.g.,Federation of African-American Contractors v. Oakland, 96 F.3d 1204 (9th Cir. 1996).
Although the discussion on this point in the Report relates to Titusville — the claims against whom have now been settled — the analysis is also applicable to Acadia and Wells Fargo insofar as they are alleged to be state actors.
Since the issuance of the Report and Recommendation the Eleventh Circuit has ruled on this question in accord with the conclusion in the Report and Recommendation. In Butts v. County of Volusia, 222 F.3d 891, 892 (11th Cir. 2000), the Court "conclude[d that] the amendments [in 1991] did not change § 1981[,] and § 1983 contains the sole cause of action against state actors for violations of § 1981." Hence, the Magistrate Judge correctly concluded that Plaintiffs cannot bring a claim against state actors under § 1981 but must instead pursue such claims under § 1983 only.
As noted above, the Report concludes that Plaintiffs sufficiently allege state action by Acadia and Wells Fargo to withstand the motions to dismiss as to the § 1983 claims. The Report explains that if Acadia and Wells Fargo are found to be state actors, the § 1981 claim against them should be dismissed but that if they are not found to be state actors, the § 1981 claim against them can proceed. Hence, the Report recommends that the § 1981 claim against Acadia and Wells Fargo "be allowed as alternative pleading at this stage of the case." (Doc. 94, at 19). The Court agrees with this recommendation, and Plaintiffs may alternatively plead their § 1981 and § 1983 claims.
E. Counts IV and V — Conspiracy to Deny Rights Under 42 U.S.C. § 1985(3) and Violation of 42 U.S.C. § 6 1986
In Count IV of the Third Amended Complaint, Plaintiffs allege that the Defendants conspired to deny their rights, in violation of 42 U.S.C. § 1985(3). In Count V, Plaintiffs allege violation of 42 U.S.C. § 1986. The Magistrate's Report recommends dismissal of both of these Counts in their entirety because "Plaintiffs have not pleaded even general facts sufficient to support a conspiracy daim." (Doc. 94, at 20). Plaintiffs object to this conclusion but acknowledge "that lack of a § 1985 daim will preclude a daim under § 1986." (Doc. 134, at 11). After considering Plaintiffs' objections to this recommendation and the Defendants' responses thereto, the Court agrees with the conclusion in the Report that Plaintiffs have not sufficiently alleged a cause of action under 42 U.S.C. § 1985(3) or 42 U.S.C. § 1986. Accordingly, the motions to dismiss Counts IV and V will be granted.
F. Injunctive Relief
In their Third Amended Complaint, Plaintiffs demanded injunctive relief in addition to seeking damages. The Report recommends dismissing the claim for injunctive relief in light of Plaintiffs' concession in a later pleading (Doc. 77) that rescission of the trespass" nullified the need for injunctive relief. Plaintiffs have not objected to this portion of the Report and Recommendation, and the Report correctly concludes that, as acknowledged by Plaintiffs in a prior document (Doc. 77), the request for injunctive relief is moot and should be dismissed as such.
II. Plaintiffs' Motions to Amend (Docs. 167 and 177)
Plaintiffs have filed two Motions to Amend (Docs. 167 and 177) since the issuance of the Report and Recommendation. Attached to one Motion (Doc. 167) is a proposed Verified Fourth Amended Complaint, and attached to the other Motion (Doc. 177) is a proposed Verified Fifth Amended Complaint which purportedly amends the proposed Verified Fourth Amended Complaint.
In support of their Motions, Plaintiffs contend that amendment is necessary in light of an alleged change in Eleventh Circuit case law, i.e. Butts, and to add a "companion" claim under 42 U.S.C. § 1982 for race-based denial of property rights. Acadia has filed responses (Docs. 172 and 182) in opposition to Plaintiffs' motions.
Plaintiffs filed their Third Amended Complaint in November 3, 1999 and did not move for leave to again amend until July 2000 — sixteen months after they filed their first complaint in a case which was originally scheduled to be tried eighteen months after it was filed. The instant motions for leave were also filed after the United States Magistrate Judge had issued a Report and Recommendation regarding the motions to dismiss the Third Amended Complaint and after all parties had filed objections and responses to the Report. Plaintiffs have not alleged any basis for not stating a claim under 42 U.S.C. § 1982 earlier. Additionally, the second Motion (Doc. 177) was filed nearly two months beyond the deadline for filing of motions to amend pleadings established by the Amended Case Management and Scheduling Order (Doc. 137, filed June 1, 2000). Although Plaintiffs' Motion for Leave to File a Fourth Amended Complaint (Doc. 167) was filed on the last day for motions to amend pleadings pursuant to the amended case schedule, the original deadline for motions to amend was May 15, 2000 and was not extended until the Amended Case Management and Scheduling Order was entered on June 1, 2000. Additionally, all parties had filed dispositive motions based on the Third Amended Complaint nearly two months prior to the filing of the first of the motions at issue here (Doc. 167).
Although leave to amend is to be "freely given when justice so requires," Fed R. Civ. P. 15(a), the Court finds that justice does not require allowing Plaintiffs to amend their complaint again. Plaintiffs have already amended their complaint three times, and the parties have expended significant resources arguing the merits of the motions to dismiss the Third Amended Complaint Although Plaintiffs argue that their prior amendments were merely to add parties or to cure defects identified by the Court, Plaintiffs must avail themselves of the leave they are given rather than assuming that repeated requests for leave to amend will be granted. Plaintiffs filed the instant motions to amend approximately eighteen months after the initial complaint was filed and nine months after the Third Amended Complaint was filed. Defendants point out that Plaintiffs were aware of the facts giving rise to the proposed § 1982 claim at the time the initial complaint was filed, and discovery was completed or nearly completed at the time the motions for leave to amend were filed. Moreover, the Court does not agree with Plaintiffs that the Butts decision necessitates leave to amend. Under these circumstances, the interests of justice do not require that Plaintiffs be permitted to amend their complaint yet again. Cf. Roman v. Davis, 371 U.S. 178, 182 (1962) (noting that bases for denying leave to amend include "repeated failure to cure deficiencies by amendments previously allowed" and "undue delay"); Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281 (11th Cir. 2000) (finding no abuse of discretion in district court's denial of leave to amend where, inter alia, plaintiff sought to amend more than a year after original complaint was filed and plaintiff did not justify the delay). Plaintiffs shall be permitted to proceed only with the claims remaining in the Third Amended Complaint after issuance of this Order.
CONCLUSION
Based on the foregoing, it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 94) is ADOPTED and CONFIRMED and made part of this Order except as specifically excluded by this Order.
2. The Motions to Dismiss (Docs. 58 and 63) are GRANTED in part and DENIED in part.
3. Plaintiffs freedom of association and freedom of petition claims in Count II of the Third Amended Complaint (Doc. 57) are DISMISSED. The freedom of speech claims in Count II remain pending, as does Count I.
4. Counts III, IV, and V of the Third Amended Complaint (Doc. 57) are DISMISSED.
5. Plaintiffs' claims for injunctive relief are DENIED as moot.
6. Plaintiffs' Motion to Amend (Doc. 167) is DENIED.
7. Plaintiffs' Motion to Supplement or Amend Complaint (Doc. 177) is DENIED.
8. Defendant SearsTown Mall Association, Inc.'s Motion to Dismiss Plaintiffs' Third Amended Complaint (Doc. 59) is DENIED as moot.
9. Defendant City of Titusville's Motion to Dismiss Plaintiffs' Third Amended Complaint (Doc. 61) is DENIED as moot.
10. Plaintiffs' Motion for Partial Summary Judgment Against Defendant City of Titusville (Doc. 96) is DENIED as moot
11. Defendant SearsTown Mall Association, Inc.'s Dispositive Motion for Summary Final Judgment (Doc. 125) is DENIED as moot
12. Defendant City of Titusville's Motion for Summary Judgment (Doc. 126) is DENIED as moot DONE and ORDERED in Chambers, Orlando, Florida this 10 day of January, 2001.