Miller v. Del. Technical & Cmty. Coll.

• Decision Date: 01 May 2013
• Docket Number: Civ. Action No. 12-216-SLR-CJB
• Court: U.S. District Court — District of Delaware
• Parties: MICHAEL C. MILLER, SR. d/b/a, MILLER'S LAWN SERVICE, Plaintiff, v. DELAWARE TECHNICAL & COMMUNITY COLLEGE, LINFORD P. FAUCETT, III, GEORGE E. BOOTH, ROBERT W. HEARN, JR., KYLE L. SERMAN, and H. ALLAN SCHIRMER, each individually and in their official capacities, Defendants.

MICHAEL C. MILLER, SR. d/b/a, MILLER'S LAWN SERVICE, Plaintiff,

v.DELAWARE TECHNICAL & COMMUNITY COLLEGE, LINFORDP. FAUCETT, III, GEORGE E. BOOTH, ROBERT W. HEARN, JR.,KYLE L. SERMAN, and H. ALLAN SCHIRMER, each individually and in their official capacities, Defendants.

Civ. Action No. 12-216-SLR-CJB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Dated: May 1, 2013

REPORT AND RECOMMENDATION

In this action filed pursuant to 42 U.S.C. §§ 1981and1983, PlaintiffMichael C. Miller, Sr., d/b/a/ Miller's Lawn Service ("Plaintiff"), brought suit against Defendant Delaware Technical & Community College ("DTCC") and DefendantsLinford P. Faucett, III, George E. Booth, Robert W. Hearn, Jr., Kyle L. Serman, and H. Allan Schirmer, in their individual and official capacities (collectively, "Individual Defendants").Presently pending before the Court is Defendants' motion to dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)("Motion").(D.I. 4)For the reasons that follow, I recommend that the Motion be GRANTED-IN-PART and DENIED-IN-PART.

I.BACKGROUND

A.The Parties

Plaintiff is a Delaware resident and the African-American and Native American Indianowner of a landscaping business.(D.I. 1 at 2, at ¶ 5)DTCC, established pursuant to Del. Code tit. 14, § 9102, is an institution of higher education that operates on a few different locations in Delaware, including the Jack F. Owens Campus ("Owens Campus") in Georgetown, Delaware.(Id.at ¶ 6)Defendant Faucett, a Caucasian male, served at all times relevant to the Complaint as the Director of Administrative Services at the Owens Campus; he was a member of the five-person DTCC panel("five-person panel") assigned the task of scoring bidders to award the 2010-2013 landscaping contract for the Owens Campus ("the 2010 Contract").(Id.at ¶ 7)¹Defendant Booth, a Caucasian male, served at all times relevant to the Complaint as the Assistant Director of Administrative Services at the Owens Campus, and was a member of the five-person panel.(Id. at 2-3, at ¶ 8)Defendant Hearn, a Caucasian male, served at all times relevant to the Complaint as the Campus Business Manager for the Owens Campus, and was a member of the five-person panel.(Id. at 3, at ¶ 9)Defendant Serman, a Caucasian male, served at all times relevant to the Complaint as the Chair of the Department of Applied Agriculture, was based at the Owens Campus, and was a member of the five-person panel.(Id.at ¶ 10)Defendant Schirmer, a Caucasian male, served at all times relevant to the Complaint as a maintenance worker at the Owens Campus, and was a member of the five-person panel.(Id.at ¶ 11)

B.Factual Background

In September 2006, Plaintiff submitted a bid for a landscaping contract with DTCC's Owens Campus for the period of January 2007 through January 2010(the "2007 Contract").(Id.at 4, at ¶¶ 13-14)Six other companies, all of which were owned by Caucasians, also submitted bids.(Id.at ¶ 14)Plaintiff submitted the lowest of the qualified bids.(Id.)However, thereafter Defendant Faucett claimed that Plaintiff had failed to turn in a required Certified Pesticide Applicator License, and required the applicants to re-bid for the contract.(Id.at ¶ 6)Though Plaintiff contends that he did in fact submit the required license, he participated in the re-bid, along with nine other companies, all of which were owned by Caucasians.(Id.at ¶¶ 7-8)Again, Plaintiff's bid was the lowest, and he was ultimately awarded the 2007 Contract.(Id.at ¶¶ 9-10)

However, despite notifying Plaintiff in November 2006 that he was the winning bidder, DTCC did not prepare the contract until January 2007, after Plaintiff's attorney had sent DTCC a letter asking when the contract would be ready.(Id. at 4-5, at ¶¶ 10-11)The prepared contract included a "permits and licensure" clause.(Id. at 5, at ¶ 12)DTCC employed Plaintiff under the contract from January 2007 until January 2010, when the contract expired.(Id.at ¶ 13)During this time, Plaintiff performed landscaping duties and ground maintenance for the Owens Campus, without incident or complaint about his performance.(Id.)In November 2008, Defendants recommended Plaintiff to Delaware State University("DSU") for its grounds keeping needs.(Id. at 8, at ¶ 31)Defendants also implemented multiple recommendations that Plaintiff had made during his service to DTCC.(Id.at ¶ 32)

Though the 2007 Contract was renewable for another two-year period at DTCC's option, DTCC chose not to renew the contract and to instead re-bid it.(Id. at 5, at ¶¶ 14-15)Accordingly, in September 2009, DTCC issued Requests for Proposals (the "RFP") for bid for the 2010 Contract.(Id. at 5, at ¶ 15)The RFP set forth specific causes that would result in the disqualification of a bidder and in rejection of the bid proposal, which included the bidder'sfailure to provide certain required information listed in the RFP at the time of bid submission.(Id. at 5-6, at ¶¶ 16-17)The RFP also set out the Safety Requirements and General Conditions to which the successful bidder must adhere, as well as the pertinent details regarding the work required to be done under the contract.(Id. at 6, at ¶¶ 18-19)In a change from DTCC's routine procedures for solicitation of bids, it requested that the submitted bids be sealed rather than open.(Id. at 7, at ¶ 22)

In March 2010, Plaintiff submitted his bid proposal of $68,868 per year.(Id.at ¶ 23)Of the seven bidders, Plaintiff's company was the only one owned and operated by a non-Caucasian.(Id.at ¶¶ 24-25)DTCC interviewed three bidders, consisting of Plaintiff, Priority Services, LLC("Priority") and Outdoor Design Group, LLC("Outdoor").(Id.at ¶ 24)The bid proposals were reviewed and scored by the five-person panel(on a 100-point scale), based on five criteria listed in the RFP.(Id. at 8, at ¶¶ 33, 36)On April 12, 2010, Plaintiff was notified that the 2010 Contract had not been awarded to him, but instead was awarded to Outdoor, owned by Jeffrey Thompson, a Caucasian.(Id. at 7, at ¶¶ 26-27)

Plaintiff asked to review the previously sealed bids and scoring.(Id.at ¶ 28)DTCC granted the request, and Plaintiff learned that Outdoor's bid was $65,750.00 per year, which was lower than Plaintiff's bid by just over $3,000.(Id.at ¶¶ 28-29)Plaintiff's bid was the second lowest, with all of the other companies' bids coming in at over $80,000 per year.(Id.at ¶ 29)Plaintiff alleges that DTCC ultimately paid Outdoor not only more than the amount that Outdoor had bid, but more than even the amount of Plaintiff's bid.(Id. at 7-8, at ¶ 30)

Plaintiff further alleges that, in reviewing the score sheets, he discovered a number of contradictions and inconsistencies in scoring.(Id. at 8-11, at ¶¶ 33-46)For example, DefendantSchirmer gave Plaintiff and Priority the same score (a 45) for the "Price" category, even though Priority's bid was over $13,000 higher than Plaintiff's bid.(Id. at 7, at ¶¶ 23, 29;id. at 9, at ¶ 37)As another example, several Individual Defendants gave Outdoor and Priority higher scores than Plaintiff in the "Capacity to Meet Requirements" category despite the fact that Plaintiff had successfully met the requirements of the 2007 Contract.(Id. at 9, at ¶¶ 39-43)Plaintiff alleges that had the scoring been consistent across bidders, Plaintiff would have received a higher rating than Outdoor.(Id. at 11, at ¶ 46)

Moreover, Plaintiff alleges that the bidding information he reviewed showed that Outdoor failed to meet a number of requirements which should have resulted in it being disqualified from the bidding process.(Id. at 11-13, at ¶¶ 47-56)These issues included a problem with Outdoor's listed address and phone number, as well as its failure to provide appropriate certifications, proof of necessary insurance coverage, and licenses.(Id.)Outdoor was not disqualified for such deficiencies, and was awarded the contract in spite of them.(Id. at 13, at ¶ 56)Outdoor obtained and signed its contract within a week of being selected by Defendants(unlike Plaintiff, who had previously received a contract only after his lawyer issued a demand letter to DTCC).(Id.at ¶¶ 57-58)Outdoor's contract did not include the "permits and licensure" clause that Plaintiff's contract had contained.(Id.at ¶ 58)

C.Procedural Background

On February 22, 2012, Plaintiff filed a two-count Complaint against DTCC and the Individual Defendants.(D.I. 1)Plaintiff alleges that racial discrimination was the reason that his 2007 Contract with DTCC for landscaping services was not renewed, and the reason that Defendants selected a different landscaping company for the 2010 Contract.(Id. at 1, at ¶ 1;id.at 3, at ¶ 12;id. at 14-16, at ¶¶ 67-83)Plaintiff alleges that this conduct violated the Equal Protection Clause of the Fourteenth Amendment² and asserts claims pursuant to 42 U.S.C. §§ 1981and1983.(Id. at 14-16, at ¶¶ 67-83)Plaintiff seeks declaratory, monetary, and injunctive relief for the alleged wrongdoing.(Id. at 16-17)

On April 20, 2012, in lieu of answering, Defendants filed the instant Motion, pursuant to Federal Rules of Civil Procedure 12(b)(1)³ and 12(b)(6).(D.I. 4)On May 3, 2012, this case was referred to the Court by Judge Sue L. Robinson to "conduct all proceedings, including alternative dispute resolution; hear and determine all motions, through and including the pretrial conference."(D.I. 6)Defendants' motion was fully briefed as of May 14, 2012, (D.I. 8), and on July 16, 2012, the Court heard oral argument regarding the motion.

II.STANDARD OF REVIEW

A.Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of subject matter jurisdiction."Under Rule 12(b)(1), the court's jurisdiction may be challenged either facially (based on the legal sufficiency of the claim) or factually (based on the sufficiency of jurisdictional fact)."Kuhn Constr. Co. v. Diamond State Port Corp., ...