Opinion
CASE NO. 8:02CV400
March 7, 2003
MEMORANDUM AND ORDER ON MOTION TO DISMISS
Before the Court is the Defendants' Motion to Dismiss (Filing No. 11). The Defendants submitted a brief to chambers in support of their motion. The Plaintiff's brief in opposition appears at Filing No. 15, and the Defendants' Reply Brief at Filing No. 18. For the reasons stated below, the Defendants' Motion to Dismiss will be granted, for failure of the Complaint to state claims upon which relief may be granted.
FACTS
All facts are derived from the allegations in the Complaint (Filing No. 1). The Plaintiff, Frank Bilello ("Bilello") is a resident of the state of Iowa. He repairs home appliances in the homes of customers in Omaha, Nebraska. His employer prohibits him from asking customers for the use of their restroom facilities.
The Defendant, Kum Go, LLC ("Kum Go"), is a Limited Liability Company doing business in Omaha and owned by the Defendant, Krause Gentle Corporation ("Krause Gentle"). Kum Go sells gasoline and ready-to-eat food at numerous locations in Omaha. It provides restroom facilities for its customers at its stores west of Omaha's 42nd Street, but not at its stores east of 42nd Street. The area of Omaha that is east of 42nd Street is described in the Complaint as "racially mixed" and "economically distressed."
Bilello works in the areas of Omaha east of 42nd Street, and it would be "most convenient" for him to use the restrooms at the Kum Go facilities east of 42nd Street. He has been denied the use of such restrooms, despite his purchase of goods at the stores and his request to use the restrooms after purchasing goods. The denial of the use of the restroom facilities has caused him repeated discomfort, inconvenience and embarrassment.
The City of Omaha's Municipal Code provides that: "Any business which invites the public to shop or purchase, or that provides services, shall provide toilet rooms for both sexes. . . . The business shall make the toilet rooms available to their customers." Omaha Municipal Code § 49-492.
Bilello brought this action against Kum Go and Krause Gentle asking that they be enjoined from denying him access to Kum Go restrooms when he purchases merchandise, and seeking compensatory and punitive damages. Bilello's First Cause of Action is based on the Defendants' alleged violation of 42 U.S.C. § 2000a and 2000a-3. His Second Cause of Action is based on the Defendants' alleged violation of Omaha Municipal Code § 49-492.
ANALYSIS
The Defendants contend that Bilello's Complaint contains an insufficient jurisdictional statement. The Defendants further contend that Bilello's Second Cause of Action fails to state a claim upon which any relief may be granted because the Omaha Municipal Code provides no civil remedy for a private party based on any violation of § 49-492 of the Code, but only provides for criminal sanctions. Finally, the Defendants contend that Bilello's First Cause of Action also fails to state a claim upon which any relief may be granted because (1) Bilello has not alleged that he has suffered discrimination on the basis of his own race, color, religion or national origin, and (2) Bilello has not alleged that he has been treated differently from other similarly-situated people. Because the Defendants contend that the First Cause of Action should be dismissed, they also contend that the Court should decline to exercise supplemental jurisdiction over Bilello's Second Cause of Action.
Fed.R.Civ.P. 12(b)(1) permits a party to raise by motion "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(6) permits a party to raise by motion "failure to state a claim upon which relief may be granted." When evaluating such motions to dismiss, the Court should accept all of the factual allegations in the Complaint as true, and should make every reasonable inference in favor of the Plaintiff. Stone Motor Co. v. General Motors Corp., 293 F.3d 456, 464 (8th Cir. 2002); Brotherhood of Maintenance of Way Employees v. Burlington Northern Santa Fe R.R., 270 F.3d 637, 638 (8th Cir. 2001).
Statement of Jurisdiction
With respect to the sufficiency of Bilello's jurisdictional statement in the Complaint, it is true that the Court's jurisdiction is derived from 28 U.S.C. § 1331, which provides: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Bilello did not cite 28 U.S.C. § 1331 in his statement of jurisdiction, but instead referred directly to 42 U.S.C. § 2000a and 2000a-3, the specific statutes which raise the federal questions Bilello is asking the Court to address. The jurisdictional statement in the Complaint is sufficient for the Court to infer subject matter jurisdiction, and the Court finds that it does in fact have such subject matter jurisdiction. The Defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(1) is denied.
Municipal Code Violation
With respect to Bilello's Second Cause of Action, Bilello simply alleges that the Defendants are in willful violation of Omaha Municipal Code § 49-492. A copy of the Code section is attached to the Complaint as Exhibit A. Bilello does not allege that the Code provides any civil remedies nor that it provides for any right of action by a private party. Bilello's reference to the Code alone, without some allegation that a right or remedy accrues on his behalf due to the Defendants' alleged violation, cannot withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Thus, Bilello's Second Cause of Action fails to state a claim upon which relief may be granted, and the Defendants' Motion to Dismiss that Cause of Action shall be granted. Even if Bilello's Second Cause of Action did state a claim upon which relief could be granted, the Court would decline to exercise supplemental jurisdiction over the Second Cause of Action, because Bilello's First Cause of Action, raising a federal question, will also be dismissed for failure to state a claim upon which relief may be granted.
Discrimination in Enjoyment of Public Accommodations
With respect to Bilello's First Cause of Action, liberally construed, he has alleged that (1) the Defendants own and operate places of public accommodation under 42 U.S.C. § 2000a, (2) the Defendants have discriminated against customers east of 42nd Street by denying them access to restroom facilities, and (3) such discrimination is based on the fact that areas east of 42nd Street are "racially-mixed" and "economically-distressed."
Section 2000a provides: "All persons shall be entitled to the full and equal enjoyment of the . . . facilities . . . and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin." Section 2000a-3 creates a private cause of action on the part of "the person aggrieved" if another person engages in a practice prohibited by 42 U.S.C. § 2000a-2. Section 2000a-2 prohibits any person from denying or depriving any other person of a right or privilege secured by Section 2000a. The private right of action authorized by Section 2000a-3 is for "preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order," and may include attorneys' fees, but not damages. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). Section 2000a and its enforcement provisions do not recognize any cause of action based on discrimination against the "economically distressed."
The Defendants contend that Bilello has no standing to raise a claim under Section 2000a, because the Complaint does not include any information about Bilello's own race, and because Bilello has not alleged that he has suffered discrimination based upon his own race. While a person who has not suffered discrimination or segregation directly may lack standing to bring an action under Section 2000a, et seq. ( see, e.g., Westray v. Porthole, Inc., 586 F. Supp. 834, 836 (D.Md. 1984)), one who has suffered discrimination directly, as a result of the race, color, religion or national origin of others, does have standing to bring such an action ( see, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 150 n. 5 (1970)).
The Defendants also contend that Bilello does not state a claim upon which relief may be granted, because he does not allege that he has been treated differently from other similarly-situated people. Liberally construing the Complaint, the Court finds that Bilello alleges that he has been treated differently from similarly-situated customers of Kum Go stores west of 42nd Street, and that the disparate treatment is based, in part, on the race, color or national origin of other customers who patronize Kum Go stores east of 42nd Street.
At the crux of the Defendants' Motion to Dismiss the First Cause of Action is the issue of whether each Kum Go store is a separate "place of public accommodation," or whether Kum Go stores both east and west of 42nd Street could be viewed collectively as a single "place of public accommodation" under Section 2000(a). Under the language of Section 2000a it is clear that "[e]ach . . . establishment which serves the public is a place of public accommodation. . . ." Section 2000a(b) describes each establishment in singular terms, including, in Section 2000a(b)(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. . . ."
If the term "public accommodation" were construed to include multiple places of business operating under central ownership, then it might be argued that the owner would be required to provide identical facilities, services and products in all locations — or risk suit for alleged discrimination under Section 2000a, et seq., if the race, color, religion or national origin of the customers varied from locale to locale. Such a construction would be contrary to the plain language of Section 2000a; it would likely diminish the number of establishments an owner would choose to operate; and it would prevent an owner from attempting to tailor services and products from location to location to meet the needs of diverse customers.
Bilello cites to the case of Robinson v. Power Pizza, Inc., 993 F. Supp. 1462 (M.D.Fla. 1998), in support his position that his First Cause of Action does state a claim upon which relief may be granted. In Robinson, a pizza-delivery company refused to provide home-delivery in a predominantly African-American neighborhood, despite the fact that the company's "principal place of business" was closer to the African-American neighborhood than to some of the white neighborhoods to which home-delivery was provided. Id. at 146. Consequently, the plaintiff was denied pizza delivery. The district court granted a preliminary injunction, finding that the company's policy had a "disparate impact" on the African-American community, and that the company had not offered a legitimate, nondiscriminatory reason for its refusal to deliver pizza to the predominantly African-American neighborhood.
The Defendants argue that Robinson is inapplicable because the plaintiff was black, and Bilello's race is not disclosed in the Complaint. As noted above, the Court finds that Bilello's race is immaterial, as was Robinson's race. To the extent that Robinson may be cited for the proposition that all places of public accommodation operated under central ownership are to be viewed as one "public accommodation" for purposes of Section 2000a, and that the owner must provide identical facilities, goods, and services at all its locations, this Court disagrees. It is significant that the Robinson court found it necessary to look at a single place of public accommodation — the defendant's "principal place of business" — to conclude that the defendant was violating Section 2000a by refusing delivery to the African-American neighborhood which was closer to that place of business than to some of the white neighborhoods to which home-deliveries were made.
If Kum Go does in fact refuse customers access to restrooms in its stores east of 42nd Street because it does not want to provide restroom facilities to a "racially mixed" population, then such a decision is reprehensible. If Bilello's allegations are true, it is also likely that Kum Go may be subject to sanctions for violation of Omaha's Municipal Code. Bilello's First Cause of Action does not, however, state a claim upon which relief may be granted under Section 2000a, et seq. For a thorough and thoughtful examination of consumer discrimination, see Deseriee A. Kennedy, Consumer Discrimination: The Limitations of Federal Civil Rights Protection, 66 Mo. L.Rev. 275-339 (2001) (analyzing consumer discrimination generally and "place" discrimination specifically.)
Although it does not appear that the Complaint can be amended to state a claim upon which relief may be granted, based upon the facts now alleged in the Complaint, Bilello will be given ten days from the date of this order to file any Amended Complaint. If no Amended Complaint is filed within ten days, judgment will be entered for the Defendants.
IT IS ORDERED:
1. The Defendants' Motion to Dismiss, Filing No. 11, is granted for failure of the Complaint to state a claim upon which relief may be granted.
2. The Plaintiff is granted leave to file an Amended Complaint on or before March 16, 2003.