Burns v. Seaworld Parks & Entm't, Inc.

675 F.Supp.3d 532

Quinton BURNS et al., Plaintiff, v. SEAWORLD PARKS & ENTERTAINMENT, INC.,SeaWorld Parks & Entertainment, LLC and John Does 1,2,3, and 4, Defendants.

CIVIL ACTION NO. 22-2941

United States District Court, E.D. Pennsylvania

Filed June 5, 2023

Andrew K. O'Connell, William H. Murphy, Jr., Malcolm P. Ruff, Murphy Falcon & Murphy PA, Baltimore, MD, Ronald E. Richardson, Law Offices of Peter G. Angelos, PC, Baltimore, MD, Jason B. Duncan, Weitz & Luxenberg, P.C., Cherry Hill, NJ, Martell Harris, The Trial Law Firm LLC, Pittsburgh, PA, for Plaintiff.

John M. Simpson, Michelle Pardo, Rebecca Bazan, Duane Morris LLP, Washington, DC, Leigh Michael Skipper, Aleksander W. Smolij, Duane Morris LLP, Philadelphia, PA, for Defendants Seaworld Parks & Entertainment, Inc., Seaworld Parks & Entertainment LLC.

OPINION

WENDY BEETLESTONE, District Judge

Plaintiffs allege that they were racially discriminated against at the Sesame Place Philadelphia amusement park ("Sesame Place") operated by Defendants SeaWorld Parks & Entertainment, Inc. and SeaWorld Parks & Entertainment, LLC (collectively, "SeaWorld"). Specifically, Plaintiffs allege that SeaWorld employees performing in costume as various Sesame Street characters repeatedly refused to interact with Black and Hispanic children during parade and "Meet and Greet" events, instead choosing to hug, wave to, and dance with White children. Plaintiffs filed this putative class action on their own behalf and on behalf of eighty-nine other families who they contend experienced similar treatment. They bring claims against SeaWorld under 42 U.S.C. § 1981, which prohibits racial discrimination in the making and enforcing of contracts, and for negligence. They seek monetary damages in excess of $50 million; declaratory relief; and injunctive relief requiring, inter alia, that SeaWorld implement "rigorous" anti-discrimination training, educational, and screening policies for its employees.

SeaWorld first moves to dismiss both counts for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Second, SeaWorld moves to dismiss Plaintiffs' claims for injunctive relief pursuant to Rule 12(b)(1), arguing that Plaintiffs have failed to adequately plead standing for injunctive relief. Separately, SeaWorld moves to dismiss Plaintiffs who purchased season passes to SeaWorld, the Valdez and Willie Plaintiffs, pursuant to a purported class action waiver. The Court, having heard argument on May 9, 2023, for the reasons that follow, will grant SeaWorld's Motion as to parts of Plaintiffs' negligence claim and denied otherwise.

I. FACTUAL ALLEGATIONS

The following facts are drawn from the Amended Complaint and, for the purposes of this Motion to Dismiss, will be taken as true. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Plaintiffs are Black and Hispanic parents and their children who visited Sesame Place in 2021 and 2022.¹ Two of the attractions at Sesame Place are parades and "Meet and Greet" events, in which park patrons can interact with costumed performers appearing as various Sesame Street characters. When Plaintiffs attempted to participate in these events, the costumed performers ignored and refused to interact with their children while "readily engag[ing] with numerous similarly situated white customers and their children[.]" The Amended Complaint does not name any individual Sesame Place employees involved in the incidents, but does identify the following Sesame Street characters: Elmo, Ernie, Telly Monster, Abby Cadabby, Rosita, Big Bird, Grover, Baby Bear, Zoey, and Cookie Monster. Plaintiffs recorded portions of these interactions on video and provide links to these videos in the Amended Complaint.

II. DISCUSSION

A. Rule 12(b)(6)

i. Legal Standard and Documents Considered

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "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. At this stage, the Court must "construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). Yet, "the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Iqbal, 556 U.S. at 663, 129 S.Ct. 1937.

"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint, and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). However, a court may also "consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Id. Here, SeaWorld attached to its Motion copies of the tickets and season passes that Plaintiffs purchased to Sesame Place, and Plaintiffs do not challenge the authenticity of these documents.² Additionally, because the season passes purchased by certain Plaintiffs contain the text "Please refer to EZpay terms and conditions," SeaWorld also attached a copy of the "EZ Pay Terms and Conditions." As the tickets and season passes form the basis of Plaintiffs' claims, they are incorporated by reference into the Amended Complaint and can be considered by the Court to decide this Motion. See id. However, the EZ Pay Terms and Conditions will not be. The copy of the Terms and Conditions attached by SeaWorld provides that "BY ENTERING THIS SITE YOU ACKNOWLEDGE AND AGREE TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THIS SITE," presumably referring to the website identified by URL at the bottom of the document (seaworldentertainment.com). But the Amended Complaint does not specify whether any Plaintiff purchased tickets online, as opposed to in person. SeaWorld's inclusion of the Terms and Conditions rests upon an assumption that the Plaintiffs' purchased tickets online—an assertion that is not found in the Complaint. Accordingly, given the motion-to-dismiss rubric, the Terms and Conditions shall not be considered here.

ii. Section 1981

Section 1981, passed as part of the Civil Rights Act of 1866, provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens[.]" 42 U.S.C. § 1981(a). "Make and enforce contracts" is defined to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. § 1981(b). Essentially, "Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship." Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006).

To state a claim under Section 1981:

[A] plaintiff "must allege facts in support of the following elements: (1) [that plaintiff] is a member of a racial minority; (2) intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or more of the activities enumerated in the statute[,] which includes the right to make and enforce contracts . . . ."

Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001). Additionally, "a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right." Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, — U.S. —, 140 S. Ct. 1009, 1019, 206 L.Ed.2d 356 (2020).

a. Existence of a Contract

SeaWorld first argues that Plaintiffs' Section 1981 claim fails because, by basing their claims on the purchase of admissions tickets, they have failed to allege the existence of a contract,³ in that tickets are not contracts but are instead classified as "revocable licenses." Therefore, as Section 1981 requires interference with a contractual right, SeaWorld argues that Plaintiffs have not stated a claim.

This argument is not a basis for dismissal given Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949) in which the Third Circuit held that ticket purchases can give rise to a Section 1981 claim. In Valle, the plaintiffs were a group of Black and White individuals who attempted to patronize a New Jersey amusement park. 176 F.2d at 699. The park "admitted members of the public upon the payment of fees." Id. It also "contained a swimming pool and persons who were admitted to the park were admitted to the pool upon the payment of an additional fee." Id. Although the plaintiffs had "duly purchased ticket[s]" to the pool, they were denied entry to the pool and ejected from the park "on the ground that the party included Negroes." Id. Plaintiffs brought a number of claims, including one under an earlier version of Section 1981 then referred to as "Section 1977,"⁴ against the park's corporate proprietor, park managers, and the chief of police who allegedly aided in their ejection. Id. Specifically, they alleged that the defendants violated their rights under Section 1977 by refusing "to permit the plaintiffs to make contracts (i.e. to purchase tickets) for the...