HENRY R. WILHOIT, JR., District Judge.
This matter is before the Court upon Defendant Falls Creek, Inc.'s Partial Motion to Dismiss Plaintiffs Amended Complaint [Docket No. 22]. The motion has been fully briefed by the parties [Docket Nos. 22-1, 25 and 26]. For the reasons stated herein, the Court finds that the Amended Complaint fails to state a claim under 42 U.S.C. § 1981 or 42 U.S.C. § 1982 upon which relief can be granted. Therefore, Counts II and III of the Amended Complaint will be dismissed.
This case arises from the purchase and sale of the Super 8 Motel in Louisa, Kentucky and the appurtenant assignment of the property lease to the purchaser, between Louisa Lodgers, LLC and Falls Creek, Inc. The purchaser, Louisa Lodgers, LLC, brought this civil action against the seller, Falls Creek, Inc., alleging that Falls Creek, Inc. violated the terms of the Ground Lease agreement and discriminated against its members on the basis of their national origin of the members of its LLC, to-wit, South Asian.
Plaintiff filled its original Complaint against Falls Creek, Inc. in the Circuit Court of Lawrence County, Kentucky. The case was removed to this Court by Defendant pursuant to 28 U.S.C. §§ 1331 and 1441. [Docket No. 1]. Shortly thereafter, Defendant filed a Motion to Dismiss the portions of the Plaintiffs Complaint which sought relief under Title VII of the Federal Civil Rights Act of 1964 ("Title VII), the Immigration Reform and Control Act of 1986 ("IRCA") and the Kentucky Constitution as such claims were not colorable under applicable State and Federal law. [Docket No. 15]. In response to the motion, Plaintiff conceded that the specific causes of action were not tenable and sought leave to amend its Complaint. [Docket Nos. 16 and 17]. This Court granted Plaintiff leave to amend its Complaint and overruled the Defendant's motion as moot. [Docket No. 18].
Plaintiffs Amended Complaint seeks a declaration as to the parties' rights under the Ground Lease agreement and alleges violations of 42 U.S.C. §§ 1981 and 1982. [Docket No 19].
Defendant seeks to dismiss Counts II and III of the Amended Complaint, which purport to allege violations of 42 U.S.C. §§ 1981 and 1982. Specifically, in these Counts, Plaintiff alleges that Defendant discriminated against its members upon the basis of national origin.
Dismissal of a complaint is warranted under Fed.R.Civ.P. 12(b)(6) if it fails to state a claim upon which relief can be granted. With respect to a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Sixth Circuit Court of Appeals explained in Estate of Ezra G. Smith v. United States, 509 Fed.Appx. 436 (6thCir. 2012) that:
Estate of Ezra G. Smith, 509 Fed.Appx. at 439.
"Conclusory assertions, e.g., that...[the] defendants engaged in `outrageous' and 'unlawful' behavior...are insufficient to state a claim that is plausible on its face." Ogle v. Columbia Gas Transmission, LLC, 513 Fed.Appx. 520, 522-523 (6th Cir. 2013). The "complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory." Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008) (internal citation omitted). As the Sixth Circuit stated in Bishop:
Bishop, 520 F.3d at 519 (internal citations omitted) (emphasis original). "At the very least, trial and appellate courts should not have to guess at the nature of the claim asserted." Kafele v. Lerner, Sampson &Rothfuss, 161 Fed.Appx. 487, 491 (6
Plaintiff alleges that Defendant discriminated and/or retaliated against its members upon the basis of their national origin and, by doing so, Defendant ran afoul 42 U.S.C. §§ 1981 and 1982. [Docket No. 19, ¶¶ 26-36].
The relevant paragraphs of the Amended Complaint allege:
Id. at ¶¶ 27 and 33 (emphasis added).
As defendant points out, Sections 1981 and 1982 apply to discrimination upon the basis or race, not national origin. Courts, including the United States Supreme Court as well as the Sixth Circuit have held the same time and time again. See, Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968) and Blank v. Cox, 2000 U.S. App. LEXIS 24005, at *3-4 (6th Cir. Sep. 21, 2000). See also, Ana Leon T. v. Fed. Res. Bank, 823 F.2d 928, 931 (6th Cir. 1987)("discrimination based solely on the place or nation of a plaintiff's origin is not actionable under §1981."); El-Zabet v. Nissan N. Am., Inc., 211 F. App'x 460, 462 (6th Cir. 2006) "it is legally impossible to state a claim for national-origin discrimination under section 1981).
Indeed, in its response to Defendant's motion, Plaintiff appears to concede that national origin or ethnicity cannot be the basis for the claims alleged in Counts II and III of its Amended Complaint.
Yet, Plaintiff maintains that it asserted a viable claim of racial discrimination and that the motion should be overruled. The Court disagrees. Notably absent from the Amended Complaint are any factual allegations regarding the alleged acts of discrimination. Plaintiff makes no reference to any statement or action by Defendant disparaging, or even mentioning, the skin color, race, or any other alleged ethnic characteristic of its members. Plaintiff fails to specifically denotes what Defendant said or did that supports the claims of discrimination. Rather, Plaintiffs claim is a single conclusory allegation that Falls Creek imposed unreasonable conditions on Plaintiffs lease assignment "on account of the national origin of the prospective purchasers." Declaring that the Defendant discriminated against its members, without any details, is not sufficient. The lone allegation of discrimination is a mere conclusory assertion or, to quote Bishop, a "legal conclusion masquerading as a factual allegation." As set forth supra, Twombly requires more.
The Counts II and III of the Amended Complaint fail to pass Twombly muster.
Accordingly,
This is an