Chandler v. Pay-'n-Save, Inc.

• Decision Date: 02 February 2023
• Docket Number: Civ. 21-1228 KG/SCY
• Parties: ROBERT CHANDLER, Plaintiff, v. PAY-N-SAVE, INC. (Lowe's Supermarkets); ANN YEVETTE LOWE, VP; LEZLIE LOWE, Secretary; ROGER C. LOWE, President/Agent; ROGER LOWE JR., Vice President; and VERONICA LNU, Store Manager, Defendants.
• Court: U.S. District Court — District of New Mexico

ROBERT CHANDLER, Plaintiff,
v.
PAY-N-SAVE, INC. (Lowe's Supermarkets); ANN YEVETTE LOWE, VP; LEZLIE LOWE, Secretary; ROGER C. LOWE, President/Agent; ROGER LOWE JR., Vice President; and VERONICA LNU, Store Manager, Defendants.

Civ. No. 21-1228 KG/SCY

United States District Court, D. New Mexico

February 2, 2023

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Plaintiffs Motion for Leave to File Amended Complaint. (Doc. 34). The sole remaining defendant, Pay-N-Save, Inc. (“Lowe's”), timely objected to the proposed amendment, and Plaintiff replied. (Docs. 35, 36). As further explained herein, the Court grants-in-part and denies-in-part the Motion (Doc. 34). Plaintiff will fde the Amended Complaint, as described herein, within three (3) calendar days from the date of entry of this Order. In doing so, Plaintiff may not make any substantive changes to the Amended Complaint.

I. Background

Plaintiff Robert Chandler is an African American resident of Tucumcari, New Mexico. He contends he is disabled because he suffers “from constant high blood pressure, severe headache, extreme anxiety, nausea and head congestion, [and] seizure, which sometimes result in fainting[.]” (Doc. 5) at ¶ 10. On October 22, 2021, he went to a Lowe's Supermarket in Tucumcari to purchase groceries, including “meat, fruits, vegetable[s], and a canned beer

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(Mike['s] Hard Lemonade).” Id. at ¶ 11. The cashier called for a manager to check Plaintiffs Id. Id. at ¶ 12. One way or another, the store declined to sell Plaintiff any alcohol, but did ask whether he would proceed with the remainder of the purchase. Id. at ¶ 27. A verbal altercation ensued. Police were called. The store manager, Veronica, told officers she “felt like [Plaintiff] was under the influence.” Id. at 18. Plaintiff was ultimately removed from the premises, arrested, and charged with misdemeanor criminal trespass and petty misdemeanor disorderly conduct. He subsequently pled guilty to the disorderly conduct charge.^[1] State of New Mexico v. Robert Chandler, Case No. M-40-MR-2021-00181, Plea & Disposition Agreement, filed Aug. 9, 2022.

Plaintiff filed this case on December 30, 2021, (Doc. 1), and filed an Amended Complaint as of right on January 3, 2022, (Doc. 5). The Court granted in part Defendants' Motion to Dismiss and allowed Plaintiff to move to file an amended complaint via Memorandum Opinion and Order on September 2, 2022. (Doc. 33). Plaintiff timely moved to amend his Complaint on September 15, 2022. (Doc. 34).

Plaintiff contends that: 1) the store, through its manager and employees, discriminated against him based on race, in violation of Title II of the Civil Rights Act, 42 U.S.C. § 2000a (Count l(i)); 2) he was punished for exercising rights and privileges secured by § 2000a, in

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violation of 42 U.S.C. § 2000a-2 (Count l(ii));^[2] 3) he was excluded, on the basis of race, from participation in or denied the benefits of a program receiving federal financial assistance, in violation of 42 U.S.C. § 2000d (Count l(v)); 4) the store, through its manager and employees, discriminated against him by excluding him on the basis of disability, in violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189 (Count 2); 5) the store failed to modify its policies to accommodate Plaintiffs alleged disability, also in violation of Title III of the ADA (Count 2(iii)); 6) the store, through its manager and employees, discriminated against him based on race and disability, in violation of the New Mexico Human Rights Act (NMHRA), NMSA § 28-1-7 (Count 3); 7) the store retaliated against him for raising the specter of discrimination, also in violation of the NMHRA (Count 4); 8) store employees defamed him by telling officers the store manager “felt” he was under the influence of alcohol, in violation of New Mexico common law (Count 5); and 9) that the conduct was so outrageous it rises to the level of intentional infliction of emotional distress, in violation of New Mexico common law (Count 6). Next, Plaintiff asserts Count 7, “Vicarious Liability (Admission of Agency).” It is unclear to the Court whether Count 7 simply argues that Lowe's is vicariously liable for its employees' actions, in which case Count 7 does not assert a separate “claim,” or Plaintiff intends to assert a separate claim for negligent training, hiring, retention, and supervision, see Count 7(i). Counts 8 and 9 seek punitive damages and injunctive relief, respectively.

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II. Standards of Review

Federal Rule of Civil Procedure 15(a)(2) provides that a party, who has either already amended or is beyond the time to amend a pleading as a matter of course, “may amend its pleading only with the opposing party's written consent or the court's leave.” As the Tenth Circuit has explained,

Rule 15(a) provides that leave to amend “shall be freely given when justice so requires.” Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment

Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993) (citations omitted). The purpose of Rule 15 is to provide litigants “the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.” Hardin v. Manitowec-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982).

Courts should grant plaintiffs leave to amend a complaint only “when doing so would yield a meritorious claim.” Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001); Lind v. Aetna Health, Inc., 466 F.3d 1195, 1199 (10th Cir. 2006). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Jefferson Cnty. Sch. Dist. No. R-l v. Moody's Investor Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999); Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1218 (10th Cir. 2022).

At this stage of the proceedings, the Court considers whether Plaintiffs proposed amended complaint would be subject to dismissal for failure to state a claim under Rule 12(b)(6). That Rule requires a plaintiffs complaint to set forth factual allegations that “raise a right to relief above the speculative level.” Bell All. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In analyzing a Rule 12(b)(6) motion to dismiss, all “well-pleaded factual allegations in the

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complaint are accepted as true and viewed in the light most favorable to the nonmoving party.” Santa Fe Alliance for Public Health and Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021) (citation omitted). A court “will disregard conclusory statements and look only to whether the remaining factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

Dismissal with prejudice “is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.” Knight v. Mooring Capital Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014) (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006)).

Because Plaintiff is represented by counsel, the Court need not liberally construe his pleadings. Cf Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (announcing standard for construing pro se litigant's pleadings “less stringent” than “formal pleadings drafted by lawyers”).

III. Analysis

Plaintiff s Motion to Amend is granted-in-part and denied-in-part. In ruling on the Motion to Amend, the Court did not consider factual allegations asserted for the first time in briefing, that is, not contained within the four corners of the proposed Amended Complaint. The Court addresses each Count in turn.

A. Count l(i): Race-Based Discrimination in Violation of Title II of the Civil Rights Act

Title II of the Civil Rights Act provides, among other things, that “[a] 11 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.”

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42 U.S.C. § 2000a(a). The statute continues to define a “place of public accommodation” as any of the following, so long as “its operations affect...