Ortiz-Rosario v. Toys "R" Us Puerto Rico, Inc.

• Decision Date: 04 October 2007
• Docket Number: Civil No. 05-2098 (DRD).
• Parties: Eva P. ORTIZ-ROSARIO, etc., Plaintiffs, v. TOYS "R" US PUERTO RICO, INC., etc., Defendants.
• Court: U.S. District Court — District of Puerto Rico

585 F.Supp.2d 216

Eva P. ORTIZ-ROSARIO, etc., Plaintiffs, v. TOYS "R" US PUERTO RICO, INC., etc., Defendants.

Civil No. 05-2098 (DRD).

United States District Court, D. Puerto Rico.

October 4, 2007.

Order Denying Reconsideration October 14, 2008.

COPYRIGHT MATERIAL OMITTED

Jorge L.M. Cintron-Pabon, Arlene D. Villali-Gonzalez, Villali Law Office, San Juan, PR, for Plaintiffs.

Ivan M. Fernandez, Ivan M. Fernandez Law Office, San Juan, PR, for Defendants.

AMENDED OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before this court is Defendant Toys "R" Us ("Defendant") Motion to Dismiss, (Docket No. 23), for failure to state a claim in the complaint filed by Plaintiffs Eva P. Ortiz-Rosario ("Mrs. Ortiz") and her daughter Mildred Garcia-Ortiz ("Mrs. Garcia"), for the violation of 42 U.S.C. §§ 1981, 1982, 1985; Articles 1802 and 1803 of the Civil Code of the Commonwealth of Puerto Rico, 31 L.P.R.A. §§ 5141, 5142, and 1 L.P.R.A. § 13. Plaintiff filed an objection, (Docket No. 29). For the reasons set forth below, the motion to dismiss is granted.

Factual Background

On October 14, 2005, Mrs. Ortiz filed the instant complaint under 42 U.S.C. § 1981 ("Equal rights under the law"), § 1982 ("Property rights of citizens"); § 1985 ("Conspiracy to interfere with civil rights"), as well as relief under applicable Puerto Rico law. Plaintiffs pray for this court to exercise supplemental jurisdiction over the local state claims.

As stated in the complaint, Mrs. Ortiz is a black Puerto Rican woman, in her early fifties, who alleges that, on October 15, 2004, at approximately 10:40 a.m., she and her granddaughter, a three (3) month old infant, who was wearing a wrist rattle, entered Toys "R" Us in San Juan, Puerto Rico, to effectuate a purchase. Mrs. Ortiz first directed herself to the Customer Service counter to request a gift list pertaining to a friend's baby shower. After obtaining the list, Mrs. Ortiz went to the store's baby department to preview items on the list. Unable to find a particular item that she was looking for, Mrs. Ortiz searched for an employee to assist her. However, the employee was already on her way, and approached Mrs. Ortiz accompanied by the store's security guard. The employee showed Mrs. Ortiz an empty wrist rattle package, identical to the one Mrs. Ortiz's granddaughter was wearing, and demanded that Mrs. Ortiz pay for the rattles when she arrived at the register. Mrs. Ortiz expressed surprise at the demand, at which point the employee made clear to Mrs. Ortiz that she was being accused of shoplifting. The employee was allegedly under the impression that the particular brand of wrist rattles in question was sold exclusively at Toys R Us, and for this reason did not believe Mrs. Ortiz's assertion that she bought the wrist rattles elsewhere. Mrs. Ortiz notes that at the moment in which the confrontation occurred, Mrs. Ortiz was the only black woman in the store's baby department.

Mrs. Ortiz was prevented from leaving the store by the security guard and Toys R Us' employee. Mrs. Ortiz subsequently went to the check-out area and requested the presence of a store manager. Mrs. Ortiz asked the first manager to arrive at the scene to provide her with the phone number for the police. The manager responded that he did not know the number. Soon afterwards a second manager arrived. The second manager requested proof of purchase of the wrist rattles, or that Mrs. Ortiz return the merchandise. It is unclear from Mrs. Ortiz' factual allegations whether either manager was present when shortly thereafter the security guard asked Mrs. Ortiz whether she was Dominican, to which Mrs. Ortiz responded in the negative.¹

The second manager then returned to the scene escorted by two police officers. The officers ordered Mrs. Ortiz to accompany them to the store's security area where a third police officer awaited them. Mrs. Ortiz was allegedly denied permission to leave the store to retrieve baby food for her granddaughter from her car, which was located in the store's parking lot. At this time, Mrs. García arrived at the scene.

Soon afterwards, Mrs. Ortiz' oldest daughter arrived at the store with four (4) baby products, one of them a wrist rattle identical to the one in controversy, of the same brand which the Toys "R" Us employee thought to be exclusive to Toys "R" Us, but purchased at a competing location. Police officers subsequently declared that there was no evidence of shoplifting against Mrs. Ortiz and she was then free to go. There are no allegations as to a formal arrest but the allegations clearly sustain a detention. Both managers then walked away from Mrs. Ortiz. When confronted by Mrs. Ortiz, the managers responded that their employees were always trying to improve at their jobs before continuing to walk away. The incident ended at approximately 1:00 p.m., therefore lasting a total of two (2) hours and twenty (20) minutes.

Mrs. Ortiz alleges that, based on the preceding facts, Toys "R" Us personnel impaired her ability to make and enforce a mercantile contract due to race and national origin discrimination, and that the events are thus actionable under 42 U.S.C. §§ 1981, 1982, and 1985. Mrs. García alleges that she is entitled to relief due to the mental anguish that she allegedly suffered when she arrived to find her mother and child detained at the store.

Defendant filed the instant Motion to Dismiss by alleging that the facts of the event fail to state a federal cause of action and that subject matter jurisdiction is lacking because the facts only give rise to a state action of tort under Article 802 of the Puerto Rico Civil Code. Mrs. Ortiz opposes dismissal by restating the facts presented above.

Motion to Dismiss Standard

The standard for a Motion to Dismiss is rather simple.

"A complaint should not be dismissed for failure to state a claim unless it appears beyond doubts that plaintiff can prove no set of facts in support of his claim which will entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Plaintiff must at least set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory." Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 28, n. 2 (9th Cir.1996). Further, recently, the Supreme Court clarified that, the court must also examine at Motion to Dismiss level under Fed.R.Civ.P. 12(b)(6) whether the case also complies with Fed.R. Civ. P. 8(a) by "a showing rather than a blanket assertion of entitlement of relief." Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, n. 3, 167 L.Ed.2d 929 (2007). However, the court is not obligated to accept plaintiffs "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). The court must only accept "well pleaded facts" to justify the legal conclusions. Litton Industries, Inc. v. Colón, 587 F.2d 70, 74 (1st Cir.1978).

42 U.S.C. §§ 1981 and 1982

42 U.S.C. § 1981 states in pertinent part:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts [...], and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens [...].

(b) "Make and enforce contracts" defined

For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." To state a claim under this statute, a plaintiff must show (1) that he is a member of a racial minority, (2) that the defendant discriminated against him on the basis of his race, and (3) that the discrimination implicated one or more of the activities enumerated in the statute. Garrett v. Tandy Corporation, 295 F.3d 94, 98 (1st Cir.2002).

A claim under 42 U.S.C. § 1982, property rights of citizens, states that: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens, thereof to inherit, purchase, lease, sell, hold and convey real and personal property." (Emphasis added). Due to the similar wording and common lineage of 42 U.S.C. §§ 1981 and 1982, the statutes are traditionally construed in pari materia. Runyon v. McCrary, 427 U.S. 160, 171, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); See also Garrett v. Tandy Corporation, 295 F.3d 94, 102 (1st Cir.2002).

42 U.S.C. § 1985

The applicable portion of 42 U.S.C. § 1985 states:

(3) Depriving persons of rights or privileges

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws [...], in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation against any one or more of the conspirators.

To state a claim under § 1985(3) a plaintiff must allege the existence of (1) a conspiracy, (2) a conspiratorial purpose to deprive a person or class of persons, directly or indirectly, of the equal protection of the laws or of equal privileges and immunities under the laws, (3) an overt act in furtherance of the conspiracy, and (4) either (a) an injury to person or property, or (b) a deprivation of a...