Opinion
Case No. 05-20283 CIV-JORDAN.
May 19, 2005
Magistrate Judge Klein All counsel of record Kenneth D. Humphrey, pro se, Miami, FL.
ORDER OF DISMISSAL WITH PREJUDICE
After I dismissed his initial complaint without prejudice, see Order of Dismissal [D.E. 31] (attached), Mr. Humphrey filed an amended complaint against UPS and Dell Computer Corporation, alleging various violations of federal law a rising out of UPS' alleged failure to timely deliver to him packages of computer-related products that he ordered from Dell. See Amended Complaint [D.E. 32]. The amended complaint purport ed alleges violations of 42 U.S.C. §§ 1981, 42 U.S.C. § 2000d (Title VI), and 18 U.S.C. §§ 1961- 1964 (RICO). Both UPS an d Dell have moved to dismiss Mr. Humphrey's pro se complaint under Rule 12(b)(6) for failure to state a claim, this time with prejudice. For the reasons which follow, both motions to dismiss [D.E. 37, 38] are GRANTED, and the amended complaint is DISMISSED WITH PREJUDICE.
I. STANDARD
The defendants' motions to dismiss should not be granted unless it appears beyond doubt that Mr. Humphrey could prove no set of facts in support of his claim which would entitle him to relief. See generally Conley v. Gibson, 355 U.S. 41 (1957). I must take the well-pleaded factual allegations of the complaint as true and must read the complaint to include any theory on which Mr. Humphrey can recover. See Lindner v. Portocarrero, 963 F.2d 332, 334-36 (11th Cir. 1992). A dismissal under Rule 12(b)(6) "is viewed with disfavor and rarely granted." Brooks v. Blue Cross Blue Shield of Fla., Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997) (citing Madison v. Purdy, 410 F.2d 99, 100 (5th Cir. 1969); International Erectors, Inc. v. Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968) ("Dismissal of a claim on the basis of barebone pleadings is a precarious disposition with a high mortality rate.")). Conclusory allegations, unwarranted deductions of facts, or legal conclusions masquerading as facts, however, will not prevent dismissal. See Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262 (11th Cir. 2004).
II. DISCUSSION
Stripped of the amended complaint's conclusory allegations, Mr. Humphrey claims that he ordered a Dell computer system on an urgent basis during the first week of October of 2002. Dell told him it would expedite delivery via UPS — allegedly Dell's exclusive shipper — to his home address. Dell shipped the computer system on October 8, 2002. On October 10, 2002, UPS attempted delivery to Mr. Humphrey, but was unsuccessful. Mr. Humphrey then called UPS and had a hold placed on the merchandise so he could pick it up. UPS told him that he would need two pieces of identification, one with a photograph.
On October 11, 2002, Mr. Humphrey when to the UPS will call office in Hialeah, Florida, where the packages were being held. UPS denied delivery to Mr. Humphrey because his driver's license had a post office box address, and not the address listed on the packages. UPS told Mr. Humphrey that this policy existed due to possible fraud related to receipt of computer orders. When he called the Dell and UPS call centers to tell them what was going on, both call centers informed him that his driver's license should have been accepted as sufficient.
Mr. Humphrey alleges that he is a law enforcement officer. Liberally construed, the amended complaint suggests that is the reason why his driver's license did not contain his home address.
The UPS will call office was closed on October 12-13, 2002. On October 14, 2002, Mr. Humphrey went to the UPS will call office with identification showing the delivery address, but was not given delivery immediately because UPS said that after four days Dell's security department had to give phone approval. When he called Dell's call center, Mr. Humphrey was told that there was no such security department and that UPS should have given him the packages. Ultimately UPS released the packages to Mr. Humphrey.
Mr. Humphrey, who is African American, contends that the three to four day delay in obtaining the computer equipment caused him "financial business losses in excess of $1,000,000," in addition to "personal loss, stress, duress, and emotional distress." In addition to seeking monetary relief, he requests injunctive relief to make Dell and UPS stop their allegedly unlawful practices.
I agree with Dell and UPS that the amended complaint must be dismissed. Mr. Humphrey may be upset at the delay in receiving his packages, and at the lack of assistance UPS gave him, but the amended complaint does not correct the deficiencies of the initial complaint, and accordingly fails to state claims upon which relief can be granted.
1. I agree with the defendants that the RICO claim (Count III) must be dismissed as a matter of law. First, Mr. Humphrey has again failed to file the RICO case statement as required by Local Rule 12.1 and, ultimately, by Rule 9(b). Even if he had, I find no legal support for Mr. Humphrey's claim that the alleged conduct is actionable under RICO. Assuming Mr. Humphrey is proceeding under 18 U.S.C. § 1962(c), the alleged conduct does not fall within any of the predicate criminal acts listed in 18 U.S.C. § 1961(1), and therefore cannot be considered "racketeering activity." Moreover, § 1962(c) requires Mr. Humphrey to allege that UPS engaged in a "pattern of racketeering activity." The complaint here is deficient on this point. See Jackson, 372 F.3d at 1264-69 (affirming dismissal of RICO claim because the plaintiffs could not establish continuity element of pattern of racketeering activity). In light of these conclusions, I need not address whether the complaint sufficiently alleges actual harm to business or property.
2. I also agree with the defendants that the racial discrimination claim under § 1981 (Count I) must be dismissed. Mr. Humphrey has not set forth non-conclusory allegations that UPS or Dell intended to discriminate on the basis of race, or that he was treated differently than any similarly situated persons of another race. See Jackson, 372 F.3d at 1270, 1274 (affirming dismissal of a § 1981 claim because the plaintiffs failed to identify any specific nonminority employees who were treated differently in other similar cases, and because their conclusory allegations were wholly unsupported by specific factual averments). Indeed, he has not alleged that Dell was even aware of his race.
To the extent that the amended complaint invokes § 1982, the same analysis applies, as §§ 1981 and 1982 are interpreted the same way. See Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431, 440 (1973).
3. Finally, Mr. Humphrey's Title VI claim under § 2000d is deficient. Title VI "was meant to cover only those situations where federal funding is given to a non-federal entity, which, in turn, provides financial assistance to the ultimate beneficiary." Soberal-Perez v. Heckler, 717 F.2d 36, 38 (2d Cir. 1983). Mr. Humphrey "does not allege, as [§] 2000d requires, that [Dell or UPS] discriminatorily distributed federal funds to which [he] had a claim of right." Stroud v. Seminole Tribe of Florida, 574 F. Supp. 1043, 1046 (S.D. Fla. 1983).
I have given Mr. Humphrey an opportunity to amend his complaint once, but decline to allow leave to amend a second time. First, Mr. Humphrey has not requested such leave in his opposition papers. Second, Mr. Humphrey has failed to remedy the problems of his initial complaint. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Third, Mr. Humphrey's gripe is that two private entities caused a three to four day delay in the delivery of computer equipment. Mr. Humphrey may not be happy that UPS required identification with the delivery address on it, but as far as I can tell, there are no federal claims that would arise from this factual scenario. In other words, amendment would be futile. See id.
III. CONCLUSION
The amended complaint is DISMISSED WITH PREJUDICE, and this case is CLOSED.DONE and ORDERED.
ORDER OF DISMISSAL WITHOUT PREJUDICE
On January 31, 2005, Mr. Humphrey filed this law suit against UPS and Dell Computer Corporation, alleging various violations of federal law arising out of UPS' alleged failure to deliver to him packages that were ordered from Dell. See Complaint [D.E. 1]. The complaint contains claims for "Racial Discrimination" (Count 1) and "RICO Violations" (Count 2). See id. Both UPS and Dell have moved to dismiss Mr. Humphrey's pro se complaint under Rule 12(b)(6) for failure to state a claim [D.E 15, 18]. For the reasons below, both UPS' motion to dismiss [D.E. 15] and Dell's motion to dismiss [D.E. 18] are both GRANTED.I. STANDARD
The defendants' motions to dismiss should not be granted unless it appears beyond doubt that Mr. Humphrey could prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41 (1957). I must take the allegations of the complaint as true and must read the complaint to include any theory on which Mr. Humphrey can recover. See Lindner v. Portocarrero, 963 F.2d 332, 334-36 (11th Cir. 1992). A dismissal under Rule 12(b)(6) "is viewed with disfavor and rarely granted." Brooks v. Blue Cross Blue Shield of Fla., Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997) (citing Madison v. Purdy, 410 F.2d 99, 100 (5th Cir. 1969); International Erectors, Inc. v. Wilhoit Steel Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968) ("Dismissal of a claim on the basis of barebone pleadings is a precarious disposition with a high mortality rate.")). Conclusory allegations, unwarranted deductions of facts, or legal conclusions masquerading as facts, however, will not prevent dismissal. See Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262 (11th Cir. 2004).
II. DISCUSSION
At the heart of Mr. Humphrey's complaint is his allegation that UPS delayed in releasing three packages to him after he presented identification in the form of a driver's license that did not match the delivery address on the packages. He alleges that during the first week in October of 2002, he ordered a Dell Computer System which was shipped to his home address. On October 10, 2005, sometime after delivery was attempted, Mr. Humphrey called UPS and requested that it hold his packages for pickup. Mr. Humphrey was told that 2 legal IDs were needed, one with a photo. See Complaint at ¶ 14. When Mr. Humphrey went to pick up the packages, he alleges that the UPS clerk denied the acceptance of his drivers license with a postal box address and refused delivery because the address on the license did not match the delivery address, and told him that any other ID without the shipping address would not be accepted. See Complaint at ¶¶ 17, 19. The packages were "released [to him] without any explanations" later on October 14, 2002. Id. at ¶ 36. He alleges generally that UPS and Dell engaged in discriminatory and racketeering activities when releasing shipments to black Americans, people of African descent, and other minorities. Mr. Humphrey alleges that this court has jurisdiction pursuant to "42:2000d et seq; 42:1981; 42:1983; 29:0754; 31:3731; 28:1983; 28:1343; 28:1331; 28:1330; 18:1961; 18:1962; and 18:1964." See Complaint at ¶ 1.
A. RICO
I agree with the defendants that the RICO claim must be dismissed as a matter of law. First, Mr. Humphrey has failed to file the RICO case statement as required by Local Rule 12.1 and, ultimately, by Rule 9(b). Even if he had, I find no legal support for Mr. Humphrey's claim that the alleged conduct is actionable under RICO. Assuming Mr. Humphrey is proceeding under 18 U.S.C. § 1962(c), the alleged conduct does not fall within any of the predicate criminal acts listed in 18 U.S.C. § 1961(1), and therefore cannot be considered "racketeering activity." Moreover, § 1962(c requires Mr. Humphrey to allege that UPS engaged in a "pattern of racketeering activity." The complaint here is deficient on this point. See Jackson, 372 F.3d at 1264-69 (affirming dismissal of RICO claim because the plaintiffs could not establish continuity element of pattern of racketeering activity). I need not address whether the complaint sufficiently alleges actual harm to business or property.
B. DISCRIMINATION
I also agree with the defendants that the racial discrimination claim must be dismissed. Because Mr. Humphrey has not alleged, nor has he argued, that UPS or Dell is a state actor, § 1983 is inapplicable. Mr. Humphrey's allegations are also insufficient to state a claim under § 1981. He has not set forth non-conclusory allegations that UPS or Dell intended to discriminate on the basis of race, or that he was treated differently than any similarly situated persons of another race. See Jackson, 372 F.3d at 1270, 1274 (affirming dismissal of a § 1981 claim because the plaintiffs failed to identify any specific nonminority employees who were treated differently in other similar cases, and because their conclusory allegations were wholly unsupported by specific factual averments). Indeed, he has not alleged that Dell was even aware of his race. Mr. Humphrey also argues that Title VI applies to his racial discrimination claim because UPS receives federal funding. See Pl. Opp. Memo at 11. The statute, however, "was meant to cover only those situations where federal funding is given to a non-federal entity, which, in turn, provides financial assistance to the ultimate beneficiary." See Soberal-Perez v. Heckler, 717 F.2d 36, 38 (2d Cir. 1983). Mr. Humphrey fails to state a claim under Title VI because he "does not allege, as section 2000d requires, that [UPS] discriminatorily distributed federal funds to which [he] had a claim of right." See Stroud v. Seminole Tribe of Florida, 574 F. Supp. 1043, 1046 (S.D. Fla. 1983).If Mr. Humphrey chooses to amend his complaint to address the deficiencies noted above, he must do so by June 10, 2005.
C. CARMACK AMENDMENT
I am not convinced, as UPS argues, that the Carmack Amendment provides Mr. Humphrey's sole avenue of recovery. See UPS Repl. at 6. The section of the Carmack Amendment UPS has cited, 49 U.S.C. § 14706, for example, imposes liability only "for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States . . ." 49 U.S.C. § 14706(a)(1). Mr. Humphrey has not alleged that there was any damage or injury to his packages, but rather that he was injured in the unjustified delay of UPS' release of his packages.
It is possible that other sections of the Carmack Amendment could preempt other claims upon which Mr. Humphrey may have been able to base his complaint. See Smith v. United Parcel Service, 296 F.3d 1244, 1245-47 (11th Cir. 2002) (holding that various claims arising from UPS' requirement that the plaintiffs pick up packages at a UPS center rather than delivering packages to their home was preempted by the Carmack Amendment). On the other hand, Smith also held that situations may exist in which the Carmack Amendment does not preempt all state and common law claims. See id at 1248. "[O]nly claims based on conduct separate and distinct from the delivery, loss of, or damage to goods escape preemption." See id. at 1248-49. It is not clear whether Mr. Humphrey could sustain any claims in federal court for the conduct alleged in the complaint — other than those claims dismissed by this order — that are "separate and distinct from the delivery, loss of, or damage to his goods." Again, if Mr. Humphrey chooses to amend his complaint to include a claim under the Carmack Amendment, he must do so by June 10, 2005.
III. CONCLUSION
For the foregoing reasons, both UPS' and Dell's motions to dismiss [D.E. 15, 18] are GRANTED. The RICO count is DISMISSED WITHOUT PREJUDICE. The discrimination count is also DISMISSED WITHOUT PREJUDICE. All pending motions — including Mr. Humphrey's motion for class certification [D.E. 28], UPS' motion to consolidate [D.E. 11], and UPS' and Dell's motions to stay proceedings on class certification [D.E. 29, 30] — are DENIED WITHOUT PREJUDICE AS MOOT. By no later than June 10, 2005, Mr. Humphrey may file an amended complaint addressing the deficiencies stated in this order.
For now, this case is CLOSED.
DONE and ORDERED.