in the united states district court for the southern ... · ayman jarrah in his individual capacity...

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

BRANDON BALL, DAN SCARBROUGH and KEN PIGGEE,

Plaintiffs

V.

AYMAN JARRAH in his individual capacity and LAND GUARDIAN INCORPORATED d/b/a GASLAMP-BAR/GRILL

Defendants.

§ § § § § § § § § § § § § § §

Case No. 4:15-cv-03181

JURY TRIAL DEMANDED

______________________________________________________________________________

AYMAN JARRAH AND LAND GUARDIAN INCORPORATED’S

MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) ______________________________________________________________________________

Tim R. Sutherland

T.R. SUTHERLAND LAW, PLLC

700 Louisiana Street, Suite 3950 | Houston, TX 77002 Tel: 713.714.2129 | Fax: 832.201.9846

Case 4:15-cv-03181 Document 11 Filed in TXSD on 02/04/16 of 24

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Table of Contents

I. NATURE AND STAGE OF THE PROCEEDINGS ...................................................................................... 1

II. STATEMENT OF THE ISSUE ................................................................................................................ 1

III. BACKGROUND ................................................................................................................................. 2

IV. SUMMARY OF THE ARGUMENT ....................................................................................................... 3

V. SUMMARY OF ALLEGATIONS ........................................................................................................... 4

VI. ARGUMENT .................................................................................................................................... 4 A. 12(B)(6) DISMISSAL STANDARD. ................................................................................................................ 4 B. RELIEF UNDER SECTIONS 1981 AND 2000A. ................................................................................................ 6 C. PLAINTIFFS’ CLAIMS FALL SHORT OF IQBAL’S PLAUSIBILITY REQUIREMENT. .......................................................... 6

1. The majority of the allegations must be set aside as conclusory. ............................................. 9 a. The allegation that Gaslamp is a public accommodation is conclusory and should be set aside. ................................. 9 b. The allegation of a “contract” is conclusory and should be set aside. ........................................................................ 10 c. The allegation that Gaslamp discriminated and refused to do business with non-‐white customers because of their race is conclusory and should be set aside. ..................................................................................................................... 11 d. The state law claim for negligence fails as a matter of law. ........................................................................................ 14 e. Plaintiffs have not alleged any facts supporting individual liability against Defendant Ayman Jarrah. ....................... 15

2. Plaintiffs’ claims fail because the remaining facts are insufficient to confer standing or required elements and do not exclude an obvious, non-‐discriminatory reason for gaslamp’s cover charge. .......................................................................................................................................................... 16

D. PLAINTIFFS’ SECTION 2000A CLAIM FAILS BECAUSE THEY CANNOT OBTAIN ANY RELIEF. ...................................... 18

VII. CONCLUSION ............................................................................................................................... 20


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Table of Authorities

CASES

Ardalan v. McHugh, No. 13-‐1138, 2014 WL 3846062 (N.D. Cal. Aug. 4, 2014) ........................................................... 15 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 4,5,7,8,9,10,18,19,20 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................... 5,6,13,18,19 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .......................................................................................................... 19 Cuevas v. Sdrales, 344 F.2d 1019 (10th Cir. 1965) ....................................................................................................... 10 Daniel v. Paul, 395 U.S. 298 (1969) ............................................................................................................................... 7 Domino's Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) ................................................................................................. 6 Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990 (9th Cir. 2014) ............................................................ 5 Farbstein v. Hicksvile Public Library, 323 F.Supp.2d 414 (E.D.N.Y. 2004) .................................................................... 20 Fazzio Real Estate Co. v. Adams, 396 F.2d 146 (5th Cir. 1968) .................................................................................... 11 Gen. Building Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375 (1982) .................................................................. 6 Ghosh v. Uniti Bank, 566 F. App’x 596 (9th Cir. 2014) ................................................................................................. 14 Gonzales v. Willis, 995 S.W.2d 729 (Tex. App.—San Antonio 1999, no pet.) .............................................................. 16 Green v. State Bar of Texas, 27 F.3d 1083 (5th Cir. 1997) ............................................................................................. 1 Han v. Univ. of Dayton, 541 Fed. Appx. 622 (6th Cir. 2013), cert. denied, 131 S. Ct. 2699 (2014) .......................... 5, 14 Hogan v. Anasazi Found., No. 09-‐2379, 2010 WL 3724751 (D. Ariz. Sept. 17, 2010) .................................................. 15 Johnson v. Sun Cmty. Fed. Credit Union, No. 11-‐2112, 2012 WL 1340434 (S.D. Cal. Apr. 18, 2012) ........................... 15 Lester v. B’ing The Best, Inc., No 09-‐81525-‐CIV, 2010 WL 4942835 (S.D.Fla Nov. 30, 2010) ....................................... 20 Lizardo v. Denny’s, Inc., No. 97-‐cv-‐1234 (FJS)(GKD), 2000 WL 976808 (N.D.N.Y. July 13, 2000), aff’d, 270 F.3d 94 (2d

Cir. 2001) ................................................................................................................................................................ 20 MGM Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197 (C.D. Cal. 2007) ................................................................ 21 Morris v. Office Max, Inc., 89 F.3d 411 (7th Cir. 1996) ................................................................................................ 11 Newman v. Piggie Park Enters., Inc., 390 U.S. 400 (1968) ........................................................................................... 19 Payne v. Travenol Labs., Inc., 565 F.2d 895 (5th Cir. 1978) ......................................................................................... 21 Phelps v. Wichita Eagle-‐Beacon, 886 F.2d 1262 (10th Cir. 1989) ................................................................................ 11 Scott v. Sandford, 60 U.S. 393 (1857) .......................................................................................................................... 16 Selden v. Topaz 1-‐2-‐3 Lounge, Inc., 447 F.2d 165 (5th Cir. 1971) ................................................................................ 11 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) .................................................................................................................. 6 Woolford v. Restaurant Concepts, II, LLC, No. 4:07-‐cv-‐011, 2008 WL 217087 (S.D.Ga. Jan 23, 2008) ........................ 20

STATUTES

28 U.S.C. § 1367(c) ...................................................................................................................................................... 14 42 U.S.C. § 1981 ...................................................................................................................................................... 6, 11 42 U.S.C. § 2000a(a) ........................................................................................................................................ 6,7,10, 11 42 U.S.C. § 2000a(b) ......................................................................................................................................... 6,7,10,11 42 U.S.C. § 2000a(c) ............................................................................................................................................... 10,11 42 U.S.C. § 2000a-‐3(a) ................................................................................................................................................. 18

RULES

FED. R. CIV. P. 12(b)(6) .................................................................................................................................................... 4 FEDERAL RULE OF CIVIL PROCEDURE 65(d) ........................................................................................................................... 22


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Defendants Ayman Jarrah and Land Guardian Incorporated file this Motion to Dismiss

pursuant to Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE.

I. NATURE AND STAGE OF THE PROCEEDINGS

Plaintiffs Brandon Ball, Dan Scarbrough, and Ken Piggee, filed this racial discrimination

case on October 29, 2015, asserting the following: Count I alleges discrimination in a public

accommodation in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a);

Count II alleges interference with the right to “make and enforce” a contract in violation of 42

U.S.C. § 1981; and Count III alleges a state law negligence claim. (Doc. 1). Plaintiffs filed their

First Amended Complaint on December 30, 2016. (Doc. 6). Defendants were served on January

15, 2016. (Doc. 9, 10). The Scheduling Conference is set for February 19, 2016. (Doc. 2). By this

motion, Ayman Jarrah and Land Guardian Incorporated ask the Court to dismiss Plaintiffs’

claims because, as detailed below, each suffer from a number of fatal pleading deficiencies

requiring dismissal of the Amended Complaint in its entirety.

II. STATEMENT OF THE ISSUE The Fifth Circuit reviews de novo a district court’s determination that a complaint fails to

state a claim upon which relief may be granted pursuant to Rule 12(b)(6). Green v. State Bar of

Texas, 27 F.3d 1083 (5th Cir. 1997)(affirming dismissal of section 1981 racial discrimination

claim).

The United States Supreme Court has mandated that lower courts must disregard

conclusory statements and dismiss cases where the remaining allegations are merely consistent

with a defendant’s liability and stop short of the line between possibility and plausibility of

entitlement to relief. Plaintiffs sued Defendants for racial discrimination under federal and state

law but, after trimming the conclusions, their allegations are just as consistent with an obvious


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alternative lawful explanation and lack foundation for standing, individual liability, and

injunctive relief. Should this Court dismiss Plaintiffs’ complaint for failure to state a claim on

which relief may be granted?

III. BACKGROUND

Gaslamp is an 18,000 square foot, three story bar in the Midtown area of Houston, Texas.

The first floor is referred to generically as “Gaslamp” and features a relaxed atmosphere with

outdoor patio and seating. The second floor, “Elysium,” is an upscale concept featuring posh

décor, VIP private sections, table seating, and bottle service. The third floor, “Gaslamp Terrace,”

is a rooftop patio overlooking the downtown Houston skyline.

Gaslamp’s main entrance features two lines for access: (a) a general admission line along

one side of the building, and (b) an exclusive roped-off front entry for VIP access for members in

possession of a Gaslamp card or keychain token, private parties, and patrons who have a

reserved section or bottle service.

Gaslamp is typically at or near its occupancy capacity on Friday and Saturday evenings.

Thus, there is usually a dress code in place, a cover charge assessed for access to Elysium and

Gaslamp Terrace,1 and attempts made to maintain a desireable ratio of males to females

throughout each of Gaslamp’s floors for the mutual enjoyment of its guests.

Plaintiffs filed this lawsuit over a twenty dollar cover charge, which was sought when the

three men, unaccompanied by women, approached the red VIP rope at the main entrance

requesting access to Gaslamp Terrace. Plaintiffs’ three count Amended Complaint contends their

civil rights were violated by Gaslamp’s door personnel who allegedly engaged in a racist scheme

to charge non-white people an entry fee while allowing white people to enter free.

1 Guests generally do not pay a cover if they (a) have a private party booked; (b) purchased table/bottle service (each bottle gets 8 guests) or (c) are VIPs as indicated by a membership card/ keychain token issued to loyal customers who regularly frequent the venue. Elysium and Gaslamp Terrace require a wristband or stamp to access the staircases which lead to the upper levels.


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IV. SUMMARY OF THE ARGUMENT

The reality is that this is a politically motivated business grievance masquerading as a

racial discrimination claim. Plaintiffs are three African-American attorneys who leveled these

accusations during the run-up to elections on the Houston Equal Rights Ordinance (“HERO”).2

In a failed attempt to get out the vote, Plaintiffs spearheaded a viral social media driven

advocacy campaign, appeared on numerous radio and television outlets, staged a boycott and

protest of Gaslamp, and even went so far as to announce their suit the week of the HERO vote by

holding a press conference outside of Gaslamp. The vote ultimately failed, and now this suit

should be dismissed for its own deficiencies under federal pleading standards.

At the outset, Plaintiffs fail to allege facts to confer standing under section 2000a for

discrimination in a public accommodation. Likewise, the Complaint fails to allege any specific

“contract” interest under section 1981. The negligence claim is baseless and barred under Texas

law, as it is merely the federal claims recast as a state law tort claim. Further, Plaintiffs provide

no support for the imposition of individual liability against Jarrah. Finally, their request for an

injunction does not satisfy federal pleading standards or the prerequisites for injunctive relief.

As to all counts, Plaintiffs’ racial discrimination claims are devoid of sufficient factual

allegations as Plaintiffs rely exclusively on “conclusory” and “unadorned” assertions that Iqbal

and Twombly held are insufficient as a matter of law. Gaslamp made a legitimate business

decision, regardless of race, and is within its rights to charge a cover to groups of men and for

patrons who seek entry into the more exclusive areas of the premises, which are in high demand

and have limited capacity. Plaintiffs’ failure to plead facts that would negate this most natural

interpretation of the events they allege should be the end of the matter under Iqbal.

2 On the ballot per the Texas Supreme Court’s admonishment that the measure be repealed or put to the people. In re Jared Woodfill et al., No. 14-0067 (Tex. July 24, 2015)(per curiam)(granting mandamus relief for Houston residents referendum to repeal or place Houston Equal Rights Ordinance on ballot for popular vote in November 2015 election)


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That conclusion should be sealed by the fact that the alternative explanation Plaintiffs

urge – an outlandish door policy whereby Gaslamp charges any non-white person a fee for entry

– arrives completely devoid of factual, non-conclusory support. The Court should dismiss all

claims without leave to amend3 because Plaintiffs do not state claims for racial discrimination

that are plausible.

V. SUMMARY OF ALLEGATIONS

The allegations against Gaslamp are scant and conclusory. The Complaint alleges that on

the weekend of September 11, 2015, Plaintiffs were asked for a twenty dollar cover charge to

enter the Gaslamp, which they declined. (Doc.6 at ¶¶ 9-10). Later, at an undisclosed time when

Plaintiffs were returning to their cars, Plaintiffs allege they “discovered that all white patrons to

Gaslamp were allowed to enter the Gaslamp without paying a cover fee” and “non-white

customers…were directed to pay the $20 admittance fee.” Id. at ¶¶11-12. Plaintiffs claim that

this shows that Gaslamp was “refusing to do business with non-white customers…because of

their race,” Id. at ¶13, and “discriminat[ing] against Plaintiffs on the basis of their race by

refusing to allow them to enter the establishment under the same terms as Caucasian patrons.” Id.

at ¶24.

VI. ARGUMENT

A. 12(b)(6) Dismissal Standard.

A complaint must be dismissed under Rule 12(b)(6) unless it “contain[s] sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” FED. R.

CIV. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.” Id. It is not enough that well-pleaded

3 Plaintiffs have already amended once and this case has been on file since late October 2015, thus further leave to amend should be denied.


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factual allegations “create speculation or suspicion of a legally cognizable cause of action; they

must show entitlement to relief.” Han v. Univ. of Dayton, 541 Fed. Appx. 622, 625 (6th Cir.

2013) cert. denied, 131 S. Ct. 2699 (2014). Eclectic Props. E., LLC v. Marcus & Millichap Co.,

751 F.3d 990, 996 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 682).

The Court first proceeds through the plaintiffs’ complaint, trimming conclusory

statements, to then determine whether the remaining well-pled factual allegations “raise a right to

relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). If

the complaint pleads facts that are “‘merely consistent with’ a defendant’s liability, it ‘stops short

of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678.

When there is an “‘obvious alternative explanation’ for [the] defendant’s behavior,” the plaintiff

has not plausibly alleged violation of the law. See id. at 682.

The purpose of this analysis at such an early stage in the case is to ensure that “the factual

allegations that are taken as true…plausibly suggest an entitlement to relief, such that it is not

unfair to require the opposing party to be subjected to the expense of discovery and continued

litigation. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Court’s are empowered as

gatekeepers to prevent “a plaintiff with a largely groundless claim” from “‘tak[ing] up the time

of a number of other people, with the right to do so representing an in terrorem increment of

settlement value.’” Twombly at 557–58.

Defendants have already been branded as racist by the court of public opinion and its lax

standards of proof. The stigma faced by Gaslamp, its owners, and employees justifies strict

adherence to pleading standards requiring more than mere suspicion of wrongdoing to haul

Defendants into federal court and further disrupt their business and personal lives with such

damaging allegations.


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B. Relief Under Sections 1981 and 2000a.

Section 1981(a) guarantees “all persons” the right to “make and enforce contracts.” 42

U.S.C. § 1981. To state a claim under section 1981, Plaintiffs must plead: (1) they are members

of a racial minority; (2) Defendants intentionally discriminated against them on the basis of race;

and (3) the discriminatory conduct prevented the creation of a contractual relationship. Domino's

Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006); Gen. Building Contractors Ass’n, Inc. v.

Pennsylvania, 458 U.S. 375, 389 (1982)(stating a section 1981 claim “reaches only purposeful

discrimination”). The plaintiff must plead factual allegations that are “sufficient to plausibly

suggest [the defendants’] discriminatory state of mind.” Iqbal, 556 U.S. at 683.

In order to state a claim under section 2000a, the plaintiffs must establish that they were

deprived of the full and equal enjoyment of a public accommodation on the grounds of race. 42

U.S.C. § 2000a(a). To have standing under section 2000a, Plaintiffs must establish Gaslamp is a

covered establishment under the section 2000a(b) two-prong analysis, such that: (1) Gaslamp is a

public accommodation, and (2) its operations affects commerce. 42 U.S.C. § 2000a(b); Daniel v.

Paul, 395 U.S. 298, 302 (1969).

Though Plaintiffs satisfy the first element of section 1981 by virtue of being African

American, they failed to allege facts which show a plausible relief under section 1981 as to the

elements of intent and loss of a contract. As for section 2000a, Plaintiffs take for granted that

Gaslamp is a public accommodation which affects commerce, while also failing to allege

sufficient facts to allow the Court to draw a reasonable inference Gaslamp is liable.

C. Plaintiffs’ claims fall short of Iqbal’s plausibility requirement.

This case bears a striking similarity to Iqbal. In both cases, the plaintiff conclusorily

alleged discrimination. Compare Doc.6 at ¶¶ 9-14 (Gaslamp “refus[ed] to do business with non-


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white customers…because of their race” by requesting a cover charge from non-whites while

letting whites patrons in with no cover), with Iqbal, 556 U.S. at 669 (“[T]he complaint posits”

that the defendants singled out the plaintiff “‘solely on account of his religious, race, and/or

national origin’”). And in both cases, the complaint failed for the same reason: With the

conclusory assertions set aside, the few factual allegations against the defendants fail to exclude

an obvious, non-discriminatory purpose. See Iqbal, 556 U.S. at 682.

The plaintiff in Iqbal was arrested following the September 11, 2001 terror attacks and

detained in federal custody. Id. at 666. He alleged that the former Attorney General of the United

States (John Ashcroft) and Director of the Federal Bureau of Investigation (Robert Mueller)

violated the Constitution by discriminating against him on the basis of race, religion, or national

origin. Id. The Supreme Court held that the complaint failed to state a claim for relief. The Court

began by identifying the conclusory assertions in the complaint that were not entitled to be

presumed true. Iqbal, 556 U.S. at 680. Legal conclusions include “[t]hreadbare recitals of the

elements of [the] cause of action, supported by mere conclusory statements.” Id. at 678. In Iqbal,

these included the plaintiff’s allegation that the defendants “‘each knew of, condoned, and

willfully and maliciously agreed to subject’ [the plaintiff] to harsh conditions of confinement ‘as

a matter of policy, solely on account of his religion, race, and/or national origin and for no

legitimate penological interest.’” Id. at 680-81.

With the conclusory assertions set aside, the Court next considered whether the factual

allegations in the complaint stated a plausible claim for relief. A claim has facial plausibility

when it “pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). In

Iqbal, the remaining factual allegations were that the defendants had “arrested and detained


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thousands of Arab Muslim men . . . as part of [their] investigation of the events of September

11,” and had “approved” a policy of holding detainees “in highly restrictive conditions of

confinement until they were ‘cleared’ by the FBI.” Id. at 681. But the Supreme Court explained

that if a complaint pleads facts that are “‘merely consistent with’ a defendant’s liability, it ‘stops

short of the line between possibility and plausibility of entitlement to relief.’” Id. at 678 (quoting

Twombly, 550 U.S. at 557).

In Iqbal, the facts alleged did not plausibly establish purposeful discrimination given an

“obvious alternative explanation”: That the defendants acted with a nondiscriminatory intent to

securely detain persons who had potential connections to the terror attacks, a policy that the

Court found would naturally “produce a disparate, incidental impact on Arab Muslims.” Iqbal,

556 U.S. at 682. The Court noted that determining “whether a complaint states a plausible claim

for relief” is “a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679.

Plaintiffs here attempt the same strategy that doomed the plaintiff in Iqbal. The

Complaint merely recites the elements of a section 1981 and section 2000a cause of action

through conclusory assertions that Gaslamp requested a cover charge of $20 on account of

Plaintiffs’ race and at some later unspecified time after their prior attempted entry, Plaintiffs

allegedly observed other non-whites be requested a cover while the bar gave preferential

treatment to white customers. The Complaint offers no other factual allegations which show

intentional discrimination, and none of which excludes the possibility of an alternative,

innocuous explanation that is obvious from the Complaint itself in the specific context of a bar:

As a business matter, Gaslamp has discretion to assess a cover charge for groups of men entering


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its business, for patrons who seek to enter its exclusive upper levels, and does so regardless of

race4. Id.

1. The majority of the allegations must be set aside as conclusory.

The Court’s first task on a motion to dismiss is to separate the complaint’s legal

conclusions—which do not receive a presumption of truth—from its factual allegations. Iqbal,

556 U.S. at 678–79. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of

the elements of the cause of action will not do.”’ Id. Similarly, courts should not presume the

truth of “a legal conclusion couched as a factual allegation.” Id. “[T]he pleading standard Rule 8

announces...demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. Here, that category comprises most of the paragraphs in the Amended

Complaint.

a. The allegation that Gaslamp is a public accommodation is conclusory and should be set aside.

Plaintiffs conclusorily allege section 2000a applies in this case, providing no facts to

satisfy the standing requirements under section 2000a(b) as to why Gaslamp is a public

accommodation. Each of the following establishments is a place of public accommodation, if its

operations affect commerce:

(1) any inn, hotel, motel…;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain…;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other

place of exhibition or entertainment….

42 U.S.C. § 2000a(b).

Plaintiffs flatly state “Gaslamp is a place of public accommodation within the meaning of

42 U.S.C. 2000a(b),” however, even a cursory reading of the statute reveals bars are not included

4 This motion will not address the additional basis for a cover charge, entry to Gaslamp Terrace, as those facts are not before the court in the Amended Complaint.


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in the enumerated listing of covered places. Cuevas v. Sdrales, 344 F.2d 1019, 1021-1023 (10th

Cir. 1965)(bar held to not be included under 2000a(b) and “if the legislation were intended to

cover such places as bars and taverns, where the sale of drinks is the principal business, Congress

would have specifically included them” in the statute); Fazzio Real Estate Co. v. Adams, 396

F.2d 146, 150 (5th Cir. 1968)(“it appears settled that bars, per se, are not covered by the Act”);

Selden v. Topaz 1-2-3 Lounge, Inc., 447 F.2d 165 (5th Cir. 1971)(affirming dismissal on the

ground that the bar, Topaz 1-2-3 Lounge, is not within the ambit of the Civil Rights Act of

1964).

Plaintiffs also make no factual allegation that Gaslamp’s operations affect commerce, as

required under 2000a(c). 42 U.S.C. § 2000a(c).

Therefore, Plaintiffs section 2000a claim is not plausible and should be dismissed as there

has been no showing of standing.

b. The allegation of a “contract” is conclusory and should be set aside.

As to the section 1981 claim, Plaintiffs fail to allege the actual loss of a contract interest

or any damages. Morris v. Office Max, Inc., 89 F.3d 411, 414-15 (7th Cir. 1996); Phelps v.

Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989). Plaintiffs assert that “they were

entitled to the same right to make and enforce contracts, without regard to her [sic] race.” (Doc. 6

at ¶23). Plaintiffs claim “Defendant chose instead to intentionally discriminate against Plaintiffs

on the basis of their race by refusing to allow them to enter the establishment under the same

terms as Caucasian patrons.” Id. at ¶24. They then flatly claim that “Plaintiffs have been

damaged as a result of the discrimination against them.” Id. at ¶25.

First, it is a conclusory legal stretch to characterize the entry into a bar as a contractual

undertaking between the parties so as to place such a transaction within the ambit of section


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1981, and Plaintiffs have failed to plead enough facts to do so. Even if it is, which Defendants

deny, under this theory the white patrons would have exchanged no consideration for entry,

which means there is no resulting contract. Plaintiffs were, according to their account, asked for

a twenty dollar cover charge, but rejected such an offer, so to speak, and hence no “contract” was

formed. In both instances, there are no contracts at issue and the section 1981 claim fails on the

basis of the Plaintiffs’ own pleadings.

While Plaintiffs fail to explain what contract they are referring to, any claim future

purchases of drinks from the bar are “contracts” is speculative, as there was no specific offer to

purchase any item from Gaslamp which was refused by the bar. There is no showing Plaintiffs

had anything more than a general interest in perhaps entering the bar upon approaching the door

personnel, much less purchasing drinks. Thus, these allegations are conclusory and not entitled to

assumption of truth and the section 1981 claim fails.

c. The allegation that Gaslamp discriminated and refused to do business with non-white customers because of their race is conclusory and should be set aside.

Plaintiffs are also not entitled to a presumption of truth for their naked assertions that (1)

“all white patrons to Gaslamp were allowed to enter the bar without paying a cover fee”; (2)

“non-white customers, African Americans, Asians, and Hispanic patrons, that the Plaintiffs

observed attempting to gain entry into Gaslamp were directed to pay the $20 admittance fee”;

and (3) “Defendants were refusing to do business with non-white customers, African Americans,

Asians, and Hispanic patrons because of their race.” Doc. 6 at ¶¶ 11-13; Twombly, 550 U.S. at

555 (“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.”’)


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The Complaint provides overly generalized statements with no factual enhancement

regarding any of the referenced white patrons who allegedly all entered without paying a fee.

Similarly, the complaint provides no details regarding any of the alleged non-white patrons who

were asked to pay a fee. Plaintiffs have, additionally, failed to allege any facts that would show

they were similarly situated to the white patrons. Specifically, there is no instance of Plaintiffs

noting a comparable group of three or more white males who did not pay a cover on the night in

question.

In addition, Plaintiffs have not alleged whether the white patrons who were purportedly

treated more favorably were male or female, in a group or alone, or, if in a group, whether

females were accompanying any such patrons. The aforementioned considerations as to these

unidentified individuals are factors which show that Plaintiffs’ misguided focus on solely one

characteristic, skin color, is not enough to support the conclusory assertion that Gaslamp sought

a cover charge based on race. There simply is no basis for the Court infer these patrons were

similarly situated to Plaintiffs so as to allow the Complaint to survive dismissal.

Further, the Complaint does not allege Plaintiffs overheard any discussions or interaction

between Gaslamp and the “non-white” or white patrons. Thus, we are left to speculate as to

whether these persons were even subject to a cover charge, such as in the instance they possessed

a VIP card or keychain, were members of a private party, or reserved a section for bottle service.

The Complaint does not allege a single derogatory statement or act by Gaslamp, its

owners, or employees on the evening in question. Thus, there is no statement indicating animus

or intent, despite these being requirements of both the section 1981 and section 2000a claims.

And, there are no facts indicating Plaintiffs spoke to any of these patrons. The Complaint fails to

cite a single witness who shared Plaintiffs’ experience.


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In addition, Plaintiffs admit they observed the alleged discrimination against other non-

whites at an entirely different time period from when they attempted to enter the bar. The Court

and Defendants are left to guess whether this was minutes or hours later, yet are asked to infer

that this supports their account of the request for cover over Defendants’ proffered explanation.

Nor can Plaintiffs argue that, at the pleading stage, they need not supply details for their

supposed comparators. Courts routinely dismiss discrimination cases where the plaintiff alleges

nothing more than that some unidentified person of another race or gender was treated better. For

example, in Ghosh v. Uniti Bank, 566 F. App’x 596, (9th Cir. 2014), the Ninth Circuit affirmed

the 12(b)(6) dismissal of a claim under 42 U.S.C. § 1982, a companion statute to § 1981 for

property rights, because the plaintiff “failed to allege any facts that support its contention that

[the defendant] treated [the plaintiff] differently than similarly-situated mortgagees on account of

[the plaintiff’s] racial identity.”

Similarly, the Sixth Circuit affirmed 12(b)(6) dismissal of a § 1981 complaint in Han v.

University of Dayton, 541 F. App’x 622, 627 (6th Cir. 2013), cert. denied, 131 S. Ct. 2699

(2014), where the plaintiff’s complaint alleged “that he was treated less-favorably than non-

Asian-American employees and was treated less-favorably than other similarly-situated female

employees, but he ha[d] offered no specifics regarding who those employees were or how they

were treated differently.”

District courts have also used Rule 12(b)(6) to dismiss race discrimination claims brought

under Title VII, an analogue to §1981, where the plaintiff alleged that persons of another class

received more favorable treatment, but failed to allege any facts about what made those persons

similarly situated. See Johnson v. Sun Cmty. Fed. Credit Union, No. 11-2112, 2012 WL

1340434, at *4 (S.D. Cal. Apr. 18, 2012)(dismissing race discrimination claims under Title VII


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because the plaintiff “offer[ed] no evidence that non-black employees similarly situated . . . were

treated more favorably”); Hogan v. Anasazi Found., No. 09-2379, 2010 WL 3724751, at *1–2

(D. Ariz. Sept. 17, 2010)(dismissing gender discrimination claims under Title VII where the

complaint alleged that “similarly situated male applicants” were treated more favorably, but

provided no factual details).

Plaintiffs have failed to present even a single concrete factual example of a similarly

situated group on the night in question. Cf. Ardalan v. McHugh, No. 13-1138, 2014 WL

3846062, at *8–9 (N.D. Cal. Aug. 4, 2014)(dismissing Title VII claims because the plaintiff

failed to plead that other employees who received more favorable treatment were similarly

situated in all material respects). Without so much as an allegation of a similarly situated group

who experienced favorable treatment by Gaslamp because they were white, Plaintiffs have not

plausibly established intentional racial discrimination. Thus, after the conclusory allegations are

set aside, Plaintiffs are left with sparse factual allegations which do not reach the level of

showing an entitlement to relief.

d. The state law claim for negligence fails as a matter of law.

Plaintiffs have alleged “Defendants negligently hired, supervised and retained the

employees whose conduct was the proximate cause of the Plaintiffs’ damages.” Plaintiffs plead

no facts to support this theory of liability. In the event the Court dismisses the federal claims,

Defendants respectfully request the Court decline to exercise supplemental jurisdiction of the

state law claim pursuant to 28 U.S.C. § 1367(c).

Regardless, the negligence claim is subject to dismissal because an employer cannot be

held liable for the tort of an employee when the alleged tort committed by the employee is not

recognized under common law. See Gonzales v. Willis, 995 S.W.2d 729, 739-40 (Tex. App.—


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San Antonio 1999, no pet.). If the tort committed by the employee is not recognized under

common law, a claim for negligent hiring, supervision, training, or retention will not be

recognized. See, e.g., id. (negligent supervision claim cannot be based solely on claim for sexual

harassment because sexual harassment is a statutory tort).

Discrimination is a statutory claim, as asserted by Plaintiffs under sections 1981 and

2000, which is unrecognized at common law and accordingly the claims should be dismissed. see

Scott v. Sandford, 60 U.S. 393 (1857)(showing an example of common law liberty and property

interests in conflict with civil rights). In effect, Plaintiffs’ claim for negligence related to racial

discrimination is subsumed by the statutory claim.

In addition, plaintiffs fail to adequately allege a recognized duty. Defendants have no

general duty to the public to not offend. Plaintiffs provide exactly no facts about what Gaslamp

did or didn’t do. Plaintiffs’ allegations of discrimination say nothing about Gaslamp’s actions or

omissions. Negligence is not strict liability. Even assuming Gaslamp had a duty, which it did not,

Plaintiffs cannot establish a viable claim for the recovery of damages, a necessary element of

such a claim. No such facts are plausibly alleged.

e. Plaintiffs have not alleged any facts supporting individual liability against Defendant Ayman Jarrah.

The Complaint also seeks personal liability against one of Land Guardian Incorporated’s

two corporate shareholders, Ayman Jarrah. All claims against Ayman Jarrah should be dismissed

because there are no factual allegations about his individual involvement so as to render any

claim under section 1981 or section 2000a plausible. In fact, his name is not even mentioned in a

single sentence in the allegations.

There are also no theories put forward to pierce the corporate veil of Land Guardian

Incorporated and hold a corporate shareholder responsible for discrimination. Jarrah is, in fact, a


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Syrian Muslim and the insinuation that he has discriminated against all “non-white” people,

when he is in fact a member of such group, is implausible on these facts. Because there is no

basis which would permit the Court to reasonably infer Jarrah is individually responsible for any

of Plaintiffs’ claims, he should be dismissed from this case.

2. Plaintiffs’ claims fail because the remaining facts are insufficient to confer standing or required elements and do not exclude an obvious, non-discriminatory reason for gaslamp’s cover charge.

The only facts that Plaintiffs have alleged, which are entitled to be presumed true are that

they (1) are a group of three men, (2) are African-American, and (3) were asked for a 20 dollar

cover charge.

That is, beyond the conclusory assertions, virtually nothing remains in Plaintiffs’

Amended Complaint. Plaintiffs have not adequately alleged Gaslamp is a public accommodation

that affects commerce under section 2000a. Plaintiffs have not adequately alleged a contractual

interest under section 1981. Plaintiffs have not adequately alleged a negligence cause of action.

Plaintiffs have alleged no facts supporting individual liability against Ayman Jarrah. Finally,

none of the remaining allegations plausibly show race discrimination in the cover charge policy

at Gaslamp as opposed to Plaintiffs being charged on account of gender.

Even if the Court were to look past the aforementioned failings, the claims should still be

dismissed under the rule that when faced with two possible explanations, only one of which can

be true and only one of which results in liability, plaintiffs cannot offer allegations that are

“merely consistent with” their favored explanation but are also consistent with the alternative

explanation. Iqbal, 556 U.S. 557. Something more is needed, such as facts tending to exclude the

possibility that the alternative explanation is true. Twombly, 550 U.S. at 554, 567. Here,

Plaintiffs claims remain stuck in “neutral territory” because they do not tend to exclude the


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possibility cover was requested because of gender or for entry into the more exclusive top floors

of the bar. Id.

As noted, plausibility is “a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Bars have capacity

limitations imposed by the government and, like all businesses, are subject to market forces.

Thus, common sense dictates that males or groups seeking to gain admittance to an exclusive

club tend to wait in line and pay a cover charge by virtue of factors such as gender, group size,

capacity, services sought, time of night, and which area of the premises they desire admission to,

not race, as there is generally an excess demand for entry from males and males are in high

supply. Females, on the other hand, are a scarcity and in demand for a bar and typically do not

pay cover.

In the context of this racial discrimination case involving a bar business, Plaintiffs had to

allege a greater level of factual specificity from which the Court can reasonably infer that their

situation was related to race as opposed to a legitimate business purpose, such as maintaining a

desired ratio of men and women in the establishment. Standing alone, the conclusory allegation

that plaintiffs “refus[ed] to do business with non-white customers…because of their race” does

not allow the Court to draw a reasonable inference about anything because it is devoid of factual

content.

None of the Complaint’s factual allegations render plausible Plaintiffs’ theory that

Gaslamp decided to charge all the non-white people in a ruse to discriminate and refuse to

“contract” with them. While Plaintiffs’ explanation is, at best, remotely possible, it is not

plausible. Plaintiffs’ claims fail for lack of the necessary “factual enhancement” which would

enable their allegations to cross “the line between possibility and plausibility” of entitlement to


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relief. Twombly 550 U.S. at 557. To render their explanation plausible, Plaintiffs must do more

than allege facts that are merely consistent with both their explanation and defendants’

competing explanation. See Iqbal, 556 U.S. at 678. Plaintiffs have not offered such well-pleaded

non-conclusory facts here and the section 1981 and section 2000 claims should be dismissed.

D. Plaintiffs’ section 2000a claim fails because they cannot obtain any relief. Even assuming Plaintiffs asserted a plausible claim showing entitlement to some form of

relief under section 2000a, their claim would still fail because they cannot obtain any relief under

that statute. Plaintiffs pursuing a claim under section 2000a may not obtain monetary damages;

they can only obtain injunctive relief. 42 U.S.C. § 2000a-3(a); Newman v. Piggie Park Enters.,

Inc., 390 U.S. 400, 402 (1968)(“When a plaintiff brings an action under [Section 2000a], he

cannot recover monetary damages” only injunctive relief). As such, Plaintiffs must demonstrate

that there is a “real or immediate threat that [they] will be wronged again – ‘a likelihood of

substantial and immediate injury.’” City of Los Angeles v. Lyons, 461 U.S. 95, 111

(1983)(quoting O’Shea v. Littleton, 414 U.S. 488, 502 (1974)). The Amended Complaint

presents no facts that would support such a finding.

There are no allegations that any of the Plaintiffs intend on patronizing Gaslamp in the

future. In fact, Plaintiffs very publicly led a protest and boycott, both online and outside the

Gaslamp premises, against Gaslamp. In addition, Plaintiffs have gone on the record with

numerous media sources and openly stated that they want Gaslamp to go out of business and

aren’t going to ever return to the bar. Thus, a party that is hell bent on destroying a business via

protests and boycotts is estopped from claiming the inconsistent position of a “real or immediate

threat that [they] will be wronged again.” Id. A plaintiff cannot have their cake and eat it too—

you either want an injunction so that you are able to finally enter that business, or you have


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decided to lead the charge to run the business out of Houston and take your business elsewhere

and do not have standing for an injunction. There are no allegations Plaintiffs have attempted to

gain access to Gaslamp again and been wronged or that they are in danger in the future. Thus,

Plaintiffs cannot obtain any injunctive relief and therefore their section 2000a claim should be

dismissed. See, e.g., Farbstein v. Hicksvile Public Library, 323 F.Supp.2d 414, 418-19

(E.D.N.Y. 2004)(granting defendant’s Rule 12(c) motion and dismissing section 2000a claim

because, among other things, plaintiff did not “allege a likelihood of substantial and immediate

irreparable injury.”); Lizardo v. Denny’s, Inc., No. 97-cv-1234 (FJS)(GKD), 2000 WL 976808,

*7 (N.D.N.Y. July 13, 2000), aff’d, 270 F.3d 94 (2d Cir. 2001)(dismissing section 2000a claim

because plaintiffs could not demonstrate that they will be discriminated against in the future by

defendants); see also Lester v. B’ing The Best, Inc., No 09-81525-CIV, 2010 WL 4942835, *6

(S.D.Fla Nov. 30, 2010)(dismissing section 2000a claim because plaintiff did not allege that she

would suffer any immediate and irreparable injury necessary to obtain injunctive relief);

Woolford v. Restaurant Concepts, II, LLC, No. 4:07-cv-011, 2008 WL 217087, *4 (S.D.Ga. Jan

23, 2008)(dismissing section 2000a claim because “[p]laintiffs make absolutely no showing that

they are subject to real or immediate threat of future discrimination by [defendant].”).

Further, Plaintiffs’ prayer for injunctive relief does not satisfy the requirements of

specificity and detail in FEDERAL RULE OF CIVIL PROCEDURE 65(d) and should be stricken. As

with the rest of the allegations, Plaintiffs’ overly general request for an injunction that merely

restates a statute and asks a party to stop discriminating cannot be sustained. FED. R. CIV. P.

65(d)(“an injunction . . . must . . . describe in reasonable detail . . . the act or acts sought to be

restrained”); Payne v. Travenol Labs., Inc., 565 F.2d 895, 898 (5th Cir. 1978)(an injunction that

merely prohibits discrimination based on religion and natural origin “cannot be sustained”);


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MGM Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1226 (C.D. Cal. 2007)(“blanket

injunctions to obey the law are disfavored”). Plaintiffs seek injunctive relief to stop Gaslamp

“from future acts of race-based discrimination with respect to which patrons they permit entry

into their places of public accommodation.” Doc. 6 at ¶19. This simple “obey the law” flavor of

injunction is invalid. Payne, 565 F.2d at 898. As this is the crux of Plaintiffs’ only prayer for

relief, once dismissed or stricken, Plaintiffs have no purpose or stake in this litigation and should

be dismissed for lack of standing.

VII. CONCLUSION

Ayman Jarrah and Land Guardian Incorporated respectfully request the Court to grant

this motion to dismiss all of Plaintiffs’ claims with prejudice under Rule 12(b)(6) as Plaintiffs

have failed to plausibly allege facts showing an entitlement to relief.

Dated: February 4, 2016.

Respectfully submitted,

By:/s/ Tim R. Sutherland

Tim R. Sutherland T.R. SUTHERLAND LAW, PLLC SDTX I.D. No.: 1366998 TX Bar No.: 24079824 Bank of America Center 700 Louisiana Street, Suite 3950 Houston, Texas 77002 Telephone: (713) 714-2329 Fax: (832) 201-9846 E-mail: [email protected]


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CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of February 2016, a true and correct copy of the foregoing was served on all counsel of record via the CM/ECF filing system and fax:

By:/s/ Tim R. Sutherland


in the united states district court for the southern ... · ayman jarrah in his individual capacity...

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