Opinion
PWG-21-554
09-06-2022
HAROLD H. HODGE, JR., Plaintiff, v. GIANT OF MARYLAND LLC, et al., Defendants.
MEMORANDUM AND ORDER
Paul W. Grimm United States District Judge.
On March 3, 2021, Plaintiff, Harold H. Hodge, Jr., acting on his own behalf (pro se), filed this lawsuit against Defendants, Giant of Maryland LLC, its President, Ira Kress, and two of its managers, Norman Dichard and Douglas Taylor, alleging that he experienced racial discrimination at the Alexandria, Virginia store on December 29, 2020. Compl., ECF No. 1. Defendants responded by filing a motion to dismiss on December 7, 2021. ECF No. 14. Defendants misunderstood their requirement to file a pre-motion letter pursuant to my Letter Order Regarding the Filing of Motions, ECF No. 3. See Resp., ECF No. 18. However, I construed their motion as the required pre-motion letter and allowed Mr. Hodge to file an amended complaint to address the deficiencies that Defendants had identified in the complaint. ECF No. 17. Accordingly, Defendants' Motion to Dismiss, ECF No. 14, is DENIED AS MOOT.
Mr. Hodge has filed numerous pro se claims in this Court. See, e.g., Hodge v. Cordish Cos.Inc., No. 17-254, 2017 WL 3007069, at *4 n.4 (D. Md. 2017) (collecting cases).
On December 22, 2021, Mr. Hodge filed an amended complaint, ECF No. 20, which is the operative complaint. Defendants filed a motion to dismiss the amended complaint on January 25, 2022. Mot., ECF No. 21. Mr. Hodge has filed his response in opposition to the motion, ECF No. 23, and Defendants have filed their reply, ECF No. 24. Thereafter, Mr. Hodge filed a motion seeking to file a surreply, ECF No. 26, and a motion to add an exhibit, ECF No. 27. Defendants oppose the surreply and additional exhibit. ECF No. 28. I have reviewed all the materials and find a hearing unnecessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons discussed below, the Defendants' Motion to Dismiss, ECF No. 21, is GRANTED. Further, Mr. Hodge's motions, ECF Nos. 26 and 27, are DENIED.
Mr. Hodge corrected Defendants' names, and Nicholas Bertram was removed from the suit. Am. Compl., ECF No. 20. The Clerk is directed to correct the names on the docket and terminate Mr. Bertram as a Defendant.
For purposes of considering a motion to dismiss, this Court accepts the facts that Plaintiff alleged in his Complaint as true. See Aziz v. Alcoac, 658 F.3d 388, 390 (4th Cir. 2011). Further, a federal court must liberally construe pleadings filed by self-represented litigants to allow them fully to develop potentially meritorious cases. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Mr. Hodge, an African American, drove to the Giant grocery store in Alexandria, Virginia to purchase crab meat on December 29, 2020. Am. Compl. ¶¶ 15-18, 20. He alleges that he was well dressed in clothing that was more than appropriate for shopping at a grocery store. Id. ¶ 30. He ordered three plastic containers of lump crab meat and one container of claws crab meat from the Giant employee at the seafood counter, but the employee told him that she could not give him the three containers of lump crab meat. Id. ¶¶ 18-24. When Mr. Hodge inquired why she could not give him the crab meat, he was told that the Giant managers had instructed the employee not to give customers small containers of crab meat unless they walked the containers directly up to the cashiers. Id. ¶¶ 25-27. Since Mr. Hodge had not yet finished his shopping, he asked to speak to the manager and told the employee that “he was not going to steal the crab meat.” Id. ¶¶ 28-29.
While Mr. Hodge waited for the store manager, he saw the same employee serve a “white lady customer” at the seafood counter, who asked for three salmon steaks. Id. ¶¶32-34. The salmon was packaged and given to the “white lady customer” with a happy holidays greeting, and she was not required to have the salmon taken directly to the cash register. Id. ¶ 35.
The seafood manager came out to speak to Mr. Hodge, but Mr. Hodge insisted on speaking to the store manager. Id. ¶¶ 36-39. The seafood manager advised Mr. Hodge that she would inform the store manager, and then she handed Mr. Hodge the four containers that he'd ordered without any further conversation or explanation. Id. ¶¶ 40-42. The store general manager and assistant manager, Defendants Norman Dichard and Douglas Taylor, came out to speak to Mr. Hodge. Id. ¶¶ 43-45. Mr. Hodge relayed the events and explained that he felt he had been treated less favorably than the white customer, he'd been discriminated against, he was not going to steal the crabmeat, and he felt humiliated and embarrassed. Id. ¶¶ 46-51, 58. Mr. Hodge indicated that he would send a complaint to the Giant store's corporate office. Id. ¶ 52. Mr. Hodge alleges that the store manager told him that he did not know about any requirement for an employee to walk seafood to the cashiers to assure that customers do not steal it, but Mr. Hodge did not find the manager's statements credible. Id. ¶¶ 53, 58. Mr. Hodge states that he called the President of Giant of Maryland prior to filing the lawsuit but never received any response. Id. ¶ 64.
Mr. Hodge alleges that he doubted that the African American woman, who came to address his complaint, could be the store manager, so he asked her, and then insisted on speaking to the store manager. Am. Compl. ¶¶ 37-39.
Mr. Hodge alleges five causes of action: (1) Unlawful Violation of Rights under 42 U.S.C. § 1981 - Racial Discrimination; (2) Unlawful Racial Discrimination in a Place of Public Accommodation under 42 U.S.C. § 2000a; (3) Humiliation and Embarrassment; (4) Mental Anguish; and (5) Malice and Recklessness. Id. ¶¶ 65-84. He seeks an award of $80,000 for his racial discrimination claim, $40,000 for mental anguish, $40,000 for humiliation and embarrassment, and $300,000 in punitive damages. Id. at 14.
Defendants move to dismiss Mr. Hodge's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a plausible legal claim.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, Civil Action No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose “‘is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Rule 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief,” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.
When reviewing a motion to dismiss, “[t]he court may consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed.” Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int'l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed.R.Civ.P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Moreover, where the allegations in the complaint conflict with an attached written instrument, “the exhibit prevails.” Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970, at *2-3 (D. Md. Apr. 12, 2011). However, if the Court considers matters outside the pleadings, the Court must treat the motion as a motion for summary judgment. Fed.R.Civ.P. 12(d); Syncrude Canada Ltd. v. Highland Consulting Group, Inc., No. RDB-12-318, 2013 WL 139194, at *2 (D. Md. Jan. 10, 2013).
As noted above, the pleadings of pro se litigants are liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,106 (1976)). The Court, however, cannot ignore a clear failure to allege facts that support a viable claim. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
Before considering the merits of Defendants' motion to dismiss, I shall first determine whether I will consider Mr. Hodge's surreply and additional exhibit. The Local Rules of this Court are clear: “Unless ordered by the Court, surreply memoranda are not permitted to be filed.” Loc. R. 105. A surreply, though “highly disfavored in this District,” Medish v. Johns Hopkins Health Sys. Corp., 272 F.Supp.3d 719, 722 (D. Md. 2017) (citation omitted), is permitted when the opposing party raises an issue in its reply for the first time, such that the moving party would be unable to contest the matter without filing a surreply, see Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001). Here, Mr. Hodge has provided no reason why he should be granted leave to file a surreply and his purported surreply appears to do no more than repeat the arguments in his response in opposition to Defendants' motion. It does not respond to matters newly raised by Defendants in their reply. Accordingly, the motion to file a surreply, ECF No. 26, will be denied. For the same reason, I also deny the motion to add an exhibit, ECF No. 27.
Mr. Hodge's first cause of action is for racial discrimination under 42 U.S.C. § 1981. Section 1981 guarantees that people of all races shall have an equal right to “make and enforce contracts,” including “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(a), (b). Claims involving retail transactions, such as Mr. Hodge alleges, are analyzed under a three-prong test. Baltimore-Clark v. Kinko's Inc., 270 F.Supp.2d 695, 699 (D. Md. 2003). In a case such as this, “a plaintiff must show: (1) he or she is a member of a racial minority; (2) the defendant intended to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities protected by the statute.” Id. (citing Buchanan v. Consol. Stores Corp., 125 F.Supp.2d 730, 734 (D. Md. 2001)). “[I]n order to satisfy the foundational pleading requirements for a suit under section 1981, a retail customer must allege that he was actually denied the ability to make, perform, enforce, modify, or terminate a contract, or to enjoy the fruits of a contractual relationship, by reason of a race-based animus.” Id. (quoting Garrett v. Tandy Corp., 295 F.3d 94, 100-101 (1st Cir. 2002)).
Mr. Hodge has alleged that he was told by an African American store employee at the seafood counter that she had been instructed by the store manager to not “give customers three small containers of crab meat unless they would walk[] the crab meat containers up front to the cashier ....” Am. Compl. ¶ 26. He does not allege that the instruction applied only to African
Americans or non-white customers, nor does he allege that the instruction applied to anything other than crab meat, nor does he allege that he was prevented from purchasing the crab meat he ordered. Mr. Hodge alleges that while he waited, a “white lady customer” ordered and received “three thick steaks of fresh salmon” without a requirement for the store employee to walk the order to the cashier. Id. ¶¶ 33-35. And he alleges that the seafood manager then handed him the containers of crab meat that he had ordered. Id. ¶ 42. Although Mr. Hodge alleges that he did not believe the store manager and felt that he was being treated differently because he was not white, the facts, as pleaded, are insufficient to support Mr. Hodge's inferences and conclusions that the interaction was race-based. As such, Mr. Hodge has failed to plead that he was denied service because of his race or that Defendants intended to discriminate against him because of his race. Accordingly, Mr. Hodge's first cause of action shall be dismissed.
Mr. Hodge's second cause of action is for racial discrimination in a place of public accommodation under 42 U.S.C. § 2000a. The statute, Title II of the Civil Rights Act, provides that “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.” 42 U.S.C. § 2000a (a). A “place of public accommodation” is defined:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent
or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.42 U.S.C. § 2000a (b). Mr. Hodge alleges that Giant is a grocery store. Am. Compl. ¶ 7. Defendants contend that a grocery store is not considered a “public accommodation” because it is not principally engaged in selling food for consumption on the premises. Mot. Mem. 9-10 (citing cases); Reply 4-5. In his response in opposition, Mr. Hodge describes Giant as a facility engaged in selling food for consumption on the premises, adding photographs as exhibits, which demonstrate that Giant has a food bar and dining section on the premises. Resp. 11-13; Resp. Exs. 1-4. Construing Mr. Hodge's pleadings liberally, I shall consider the exhibits as integral to his complaint, and accept, for purposes of this dismissal motion, that he has alleged that the Giant has a dining area. Although Defendants argue that Mr. Hodge has not properly alleged that Giant is a “place of public accommodation,” they agree that there is authority to find that a grocery store is a public accommodation when the premises contains a dining area. Reply 5-6 (citing cases). At this stage of the proceedings, accepting the complaint's factual allegations as true, they are sufficient to allege that Giant is a facility covered under Title II, although I note that further factual development may prove otherwise.
Title II also contains a notice provision, which provides that a plaintiff shall not bring a civil action “before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority,” if such state has a law “prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice.” 42 U.S.C. § 2000a-3(c). Defendants argue that Mr. Hodge has failed to allege that he provided the requisite notice and waited the requisite time before filing his complaint. Mot. Mem. 10; Reply 7-8. Mr. Hodge has not argued otherwise. Since Mr. Hodge was required to provide notice before initiating suit, this claim must be dismissed. Hodge v. Cordish Cos. Inc., No. 17-254, 2017 WL 3007069, at *6-7 (D. Md. 2017).
I note that Mr. Hodge should have been aware of the notice requirement since Judge Hollander of this Court described it to him so clearly.
Further, Title II does not provide a private right of action for money damages. 42 U.S.C. § 2000a-3(a); see Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (“When a plaintiff brings an action under [Title II], he cannot recover damages.”); Cordish, 2017 WL 3007069, at *7 (“Because Title II does not permit Hodge to obtain the monetary relief that he seeks, his claims under Title II are subject to dismissal.”).
Mr. Hodge's remaining causes of action are for humiliation and embarrassment, mental anguish, and malice and recklessness. Defendants understood these allegations as a claim for intentional infliction of emotional distress and argued that he failed to plead a plausible claim. Mot. Mem. 11-14; Reply 8. In response, Mr. Hodge clarifies that he does not assert a claim of intentional infliction of emotional distress. Resp. 17. He asserts that his claims of humiliation, embarrassment, mental anguish, and malice and recklessness should not be dismissed because Giant is a “place of public accommodations.” Id. 17-18. To the extent that these are additional allegations related to his second cause of action, it has been dismissed. If they are intended to assert some other cause or causes of action, it is unclear and cannot, therefore, survive dismissal.
In sum, Mr. Hodge, although given an opportunity to amend his complaint, has failed to allege plausible causes of action of racial discrimination. Therefore, I shall grant Defendants' Motion to Dismiss, ECF No. 21. Mr. Hodge has not asked to amend his complaint, and it appears unlikely that Mr. Hodge can amend his complaint to add sufficient factual allegations to support a plausible claim of racial discrimination. However, I shall dismiss his complaint without prejudice. But Mr. Hodge may not file a second amended complaint without first obtaining leave of the court by demonstrating that he is able to cure the deficiencies discussed above, and amendment would not be futile.
ORDER
For the foregoing reasons,
1. Plaintiff's Motion to File a Surreply, ECF No. 26, is DENIED; 2. Plaintiff's Motion to Add an Exhibit, ECF No. 27, is DENIED; 3. Defendants' Motion to Dismiss, ECF No. 14, is DENIED AS MOOT; 4. Defendants' Motion to Dismiss, ECF No. 21, is GRANTED; 5. Plaintiff's Amended Complaint, ECF No. 20, is DISMISSED WITHOUT PREJUDICE WITHOUT LEAVE TO AMEND; 6. The Clerk is directed to CLOSE this case.