Shaare Tefila Congregation v. Cobb

• Decision Date: 22 April 1985
• Docket Number: Civ. A. No. R-84-880.
• Citation: 606 F. Supp. 1504
• Parties: SHAARE TEFILA CONGREGATION, et al., Plaintiffs, v. John William COBB, et al., Defendants.
• Court: U.S. District Court — District of Maryland

606 F. Supp. 1504

SHAARE TEFILA CONGREGATION, et al., Plaintiffs, v. John William COBB, et al., Defendants.

Civ. A. No. R-84-880.

United States District Court, D. Maryland.

April 22, 1985.

Joseph M. Hassett, Patricia A. Brannan, Daniel S. Cohen, Steven P. Hollman, Hogan & Hartson, Bethesda, Md., Paul Nolan, Baltimore, Md., for plaintiff.

Jewish Advocacy Center, Irwin N. Shappell, Washington, D.C., of counsel.

Robert B. Barnhouse, Deborah T. Garren, Piper & Marbury, Baltimore, Md., for defendant Remer.

MEMORANDUM AND ORDER

RAMSEY, District Judge.

The Shaare Tefila Congregation, individually and on behalf of its members, instituted this civil action against eight defendants for alleged violations of federal and state law arising from defendants' desecration of plaintiffs' synagogue. Plaintiffs base their claims on federal civil rights statutes 42 U.S.C. §§ 1981, 1982 and 1985(3), and on Maryland common law of trespass, nuisance and intentional infliction of emotional distress.

Presently pending before the Court is defendant Michael David Remer's motion to dismiss the complaint pursuant to Fed.R. Civ.P. 12(b)(1) and (6). Plaintiffs filed a response in opposition to the motion and defendant has replied thereto.¹ Oral argument is unnecessary and the Court rules pursuant to Local Rule 6 (D.Md.1984).

The grant of a motion to dismiss pursuant to Rule 12(b)(6) is appropriate only when it appears beyond doubt that plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In ruling upon the pending motions to dismiss, the Court must view the complaint in the light most favorable to plaintiffs and resolve every doubt in their behalf. See Wright and Miller, Federal Practice and Procedure: Civil § 1357 (1969) and cases cited therein. The plaintiffs' allegations are to be taken as true for the purposes of ruling upon the motion. See id. and cases cited therein. See also Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). Moreover, any inference that may reasonably be drawn or construed from plaintiffs' complaint shall be considered together with the allegations of fact. Murray v. City of Milford, Connecticut, 380 F.2d 468, 470 (2d Cir.1967); L.S. Good & Co. v. H. Daroff & Sons, Inc., 263 F.Supp. 635, 644 (N.D.W.Va.1967).

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) raises the question of whether a court has subject matter jurisdiction over a proceeding. In ruling upon this motion, the complaint will be construed broadly and liberally, in conformity with Federal Rule of Civil Procedure 8(f). See, e.g., Bachowski v. Brennan, 502 F.2d 79, 83 n. 4 (3d Cir.1974), rev'd on other grounds sub nom., Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Duffield v. Memorial Hospital Ass'n of Charleston, 361 F.Supp. 398, 400 (S.D.W.Va.1973), aff'd on other grounds sub nom., Duffield v. Charleston Area Medical Center, 503 F.2d 512 (4th Cir. 1974). See generally Wright & Miller, Federal Practice and Procedure: Civil § 1350 (1969) and cases cited therein. Where the complaint's jurisdictional allegations are complete, uncontradicted, and sufficient, the Court ordinarily must overrule a motion directed only at the language of the complaint. See, e.g., Seaboard Finance Co. v. Martin, 244 F.2d 329 (5th Cir.1957). However, the pleading will be read as a whole, with any relevant specific allegations found in the body of the complaint taking precedence over the formal jurisdictional allegation therein, and all uncontroverted factual allegations will be accepted as true. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939). The plaintiff ordinarily bears the burden of proof on a Rule 12(b)(1) motion. See, e.g., Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). Where the complaint's invocation of subject matter jurisdiction is based on a federal question, the plaintiff need only show that he has alleged a claim under federal law and that the claim is not frivolous. See, e.g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). The Court must weigh the merits of what is presented in a Rule 12(b)(1) motion. See Peterson Systems, Inc. v. Morgan, 224 F.Supp. 957 (W.D.Pa. 1963).

Count I: 42 U.S.C. § 1981

The first count of the complaint alleges that the desecration of plaintiffs' synagogue deprived the congregation of the full and equal benefit of laws for the security of persons and property under 42 U.S.C. § 1981. That statute provides in pertinent part as follows:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, 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 ...

Plaintiffs further allege in Count I that the defendants' conduct was "motivated by racial prejudice in that the defendants perceive plaintiffs as racially distinct because they are Jews ..."

Defendant raises two arguments in support of dismissal of Count I. First, he contends that despite the allegations of racial animus in the pleadings, the essence of plaintiffs' claim is religious rather than racial discrimination, and as such it is not cognizable under § 1981. Second, defendant contends that state action is a required element of any claim under the full and equal benefit clause of the statute; because state action has not been alleged here dismissal is appropriate. The Court finds dismissal appropriate on the ground of state action, and therefore does not reach defendant's first argument for the purposes of Count I.² Plaintiffs do not assert that any state action is involved in the instant case. Rather, they contend that state action is not required for a claim under the full and equal benefits clause, relying on Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). The Supreme Court held in Jones that 42 U.S.C. § 1982 was intended to prohibit private acts of discrimination which violate property rights. Plaintiffs argue that the same principles relied upon in Jones have been and should in this instance be applied to the full and equal benefits clause of § 1981.

The Jones holding has been applied to interpret the contract clause of § 1981 as prohibiting private acts of discrimination. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). Some courts have indeed extended the holding even further to find, as plaintiffs' urge here, that the full and equal benefit clause of § 1981 also prohibits private acts of discrimination. See, e.g., Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894, 901 (E.D.Mo.1969). This is by no means a universal interpretation, however. Other courts have noted a distinction between the contract and full and equal benefit clauses of § 1981, finding the concept of state action to be implicit in the latter:

The words `full and equal benefit of all laws and proceedings for the security of persons and property' ... suggests a concern with relations between the individual and the state, not between two individuals. The state, not the individual, is the sole source of law, and it is only the state acting through its agents, not the private individual, which is capable of denying to blacks the full and equal benefit of the law. Thus, while private discrimination may be implicated by the contract clause of section 1981, the concept of state action is implicit in the equal benefit clause.

Mahone v. Waddle, 564 F.2d 1018, 1029 (3rd Cir.1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978).

The Third Circuit's interpretation of the full and equal benefits clause in Mahone was recently adopted by the U.S. District Court for the Eastern District of Virginia. In Eggleston v. Prince Edward Volunteer Rescue Squad, Inc., 569 F.Supp. 1344 (E.D.Va.1983), aff'd, 742 F.2d 1448 (4th Cir.1984), the court granted summary judgment against the plaintiff's § 1981 action based on expulsion from a private rescue squad, finding no basis for a claim under the contract clause and no state action to support a claim under the full and equal benefit clause. 569 F.Supp. at 1353. This Court is in full agreement with the reasoning expressed in Mahone and adopted in Eggleston which distinguishes between the contract and equal benefit clauses for the purposes of state action. In the instant case there does not exist, nor do plaintiffs assert, any basis for a claim under the contract clause. Nor does there exist, and plaintiffs again do not assert, state action to support a claim under the full and equal benefit clause. Dismissal is accordingly proper as to Count I of the complaint.

Count II: 42 U.S.C. § 1982

The second count of the complaint alleges that defendants' desecration of the synagogue deprived plaintiffs of the right to hold real and personal property in violation of 42 U.S.C. § 1982. That statute provides as follows:

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.

Plaintiffs again specifically allege in this Count that the defendants' conduct was "motivated by racial prejudice in that defendants perceive plaintiffs as racially distinct because they are Jews."

Defendants argue in support of...