Smith v. G & W Foods

DAMON DELENO SMITH AND TONIA KAY SMITH, Plaintiffs, v. G & W FOODS, OSWEGO BRANCH AND PATRICIA WARY, Defendants.

Case No. 20-CV-2517-JAR-TJJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

April 20, 2021

MEMORANDUM AND ORDER

Plaintiffs Damon Deleno Smith and Tonia Kay Smith bring suit against Patricia Wary and G & W Foods, Oswego Branch ("G & W Foods"). Plaintiffs assert seven claims. Defendant G & W Foods has filed a Motion to Dismiss (Doc. 10). It contends that Plaintiffs fail to state a claim against it. G & W Foods also filed a Motion to Strike (Doc. 20). The motions are fully briefed, and the Court is prepared to rule. For the reasons stated in detail below, the Court grants Defendant's motion to dismiss and denies the motion to strike.

I. Legal Standard

To survive a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), a complaint must contain factual allegations that, assumed to be true, "raise a right to relief above the speculative level"¹ and must include "enough facts to state a claim to relief that is plausible on its face."² Under this standard, "the complaint must give the court reason to believe that this plaintiff has areasonable likelihood of mustering factual support for these claims."³ The plausibility standard does not require a showing of probability that "a defendant has acted unlawfully," but requires more than "a sheer possibility."⁴ "[M]ere 'labels and conclusions,' and 'a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim."⁵ Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.⁶

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the Court "must take all of the factual allegations in the complaint as true, [but is] 'not bound to accept as true a legal conclusion couched as a factual allegation.'"⁷ Thus, the Court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.⁸ Second, the Court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."⁹ "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."¹⁰

Because Plaintiffs proceed pro se, some additional considerations frame the Court's analysis. The Court must construe Plaintiffs' pleadings liberally and apply a less stringent standard than that which applies to attorneys.¹¹ "Nevertheless, [Plaintiffs] bear[] 'the burden of alleging sufficient facts on which a recognized legal claim could be based.'"¹² The Court may not provide "additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf."¹³ Additionally, a pro se litigant is not excused from complying with the rules of the court and is subject to the consequences of noncompliance.¹⁴

II. Factual Allegations

The following material facts are alleged in the Complaint. Plaintiffs Damon and Tonia Smith, "a couple of color,"¹⁵ met Defendant Patricia Wary, a single white woman, in 2016, in Oswego, Kansas. Plaintiffs toured Wary's house, which was for sale by owner. Over the course of a couple months, Plaintiffs and Wary entered into a private contract for Plaintiffs to purchase the home from Wary. This agreement provided for Wary to keep the mortgage loan in her name and Plaintiffs to take the title and deed to the property and make mortgage payments to Wary. Plaintiffs paid Wary $10,000 as a down payment. On January 1, 2017, Plaintiffs took possession of the home.

Plaintiffs never missed a house payment to Wary from 2016 until July 2020 when the home was refinanced. During this time period, Wary made it a habit to communicate withPlaintiffs while she was on duty as a cashier at Defendant G & W Foods and Plaintiffs were checking out.

On or around July 24, 2019, Plaintiff Damon Smith and Wary had a conversation about the Bible while Smith was making a mortgage payment. Wary escalated the conversation and informed Mr. Smith that he should have had the mortgage refinanced by that time. Wary informed Mr. Smith that she was going to call the police and report "harassment," even though Wary knew that Smith was not harassing her and it was an untrue statement.

Wary called the police. Mr. Smith also called the police. He states that he feared the implications of Wary's false accusation as a white woman against him, a black man. Mr. Smith informed the police that Wary's allegations of harassment were untrue.

On this same day, Wary told Mr. Smith that she had reported him to the police, that she had reported both Plaintiffs to the local bank as being dishonest in connection with the real estate contract, and that she had informed the title company of the Smiths' dishonesty. Wary repeated these "harassment" allegations to her attorney and to her employer, G & W Foods.

Between July 24 and 28, 2019, Mr. Smith noticed that each time he entered G & W Foods to shop, Wary would rush to the back of the store, and the store manager would relieve Wary of her cashier duties. These actions were observable to customers and were repeated throughout the year.

On or around July 28, 2019, Plaintiffs received a letter from Wary's attorney stating that Plaintiffs had been harassing Wary and that they must obtain Wary's approval before shopping at her workplace, G & W Foods. The letter instructed Plaintiffs not to contact Wary by showing up at her work without her express permission. G & W Foods is the only grocery store in town.

On or around July 31, 2019, Plaintiffs sent a letter back to Wary and her attorney asking them to "cease and desist slander, defamation, and libel."¹⁶ On this same day, Mr. Smith approached G & W Foods' store manager and informed him that Wary had made false accusations against Plaintiffs, and that Wary's request for reassignment or running away when Plaintiffs entered the store invoked the perception of racial animosity. Wary persisted in endangering Plaintiffs' safety and reputation while on duty at G & W Foods.

Approximately one year later, on or around August 4, 2020, Mrs. Smith contacted G & W Foods' corporate office in Missouri and made a complaint about Wary's actions and her co-workers' actions. Mrs. Smith stated that Wary's co-workers appeared to be under the belief that they were protecting Wary, but that they were harming Plaintiffs. Mrs. Smith requested treatment equal to that of other customers.

On or around August 5, 2020, Mrs. Smith contacted the manager of G & W Foods and informed him that she had called the corporate office. She also informed G & W Foods' manager that Wary had sent Plaintiffs a letter requesting them to obtain her permission before entering G & W Foods. On this same date, Mrs. Smith received a return phone call from the corporate office informing her that Wary's attorney had no authority to speak on behalf of G & W Foods and that Wary's behavior would be addressed.

On September 23, 2020, Mr. Smith entered G & W Foods while Wary was on duty and congregating with four other employees. Wary and the four employees stopped talking and rushed to close out Wary's drawer and usher Wary to the back of the store. When Mr. Smith was next to Wary, he asked her if this behavior was going to continue but received no response from Wary.

Mr. Smith continued his shopping and proceeded to check out. The cashier needed help with a cash-back transaction, and the manager assisted the cashier with that transaction. Mr. Smith informed the manager, "For the record, we have tried."¹⁷ The manager nodded but did not speak.

Plaintiffs filed suit on October 19, 2020 against Wary and G & W Foods. They allege seven claims: (1) false communication, (2) harassment and intimidation, (3) defamation and slander, (4) denial of civil rights, (5) conspiracy, (6) endangerment, and (7) unlawful race discrimination. They seek approximately $2 million in damages. Defendant G & W Foods filed a motion to dismiss.¹⁸

III. Discussion

As an initial matter, Defendant contends that it brings its Motion to Dismiss pursuant to both Rules 12(b)(6) and 12(b)(1). Defendant states that the exhaustion of administrative remedies is a jurisdictional prerequisite to filing a Title VII action in federal court, and that Plaintiffs' complaint should be dismissed under Rule 12(b)(1) for failure to exhaust administrative remedies.¹⁹ Title VII and the duty to administratively exhaust, however, are inapplicable in this case. Plaintiffs were not employed by G & W Foods and do not bring an employment discrimination claim under Title VII.²⁰ Thus, there is no need for Plaintiffs to exhaust administrative remedies, and failure to exhaust is not an appropriate basis for dismissal.

Plaintiffs assert seven claims in their Complaint, but only five appear to involve allegations relating to G & W Foods.²¹ The Court will only address those five claims. These include claims for defamation and slander, denial of civil rights, conspiracy, endangerment, and unlawful race discrimination.

A. Counts 4 and 7

In Count 4, "Denial of Civil Rights," Plaintiffs allege that G & W Foods violated their civil rights. They claim that Wary (and her attorney) tried to prevent Plaintiffs from shopping at G & W Foods unless they received permission from Wary. They claim that both Defendants sought to intimidate and prevent Plaintiffs from receiving equal protection of the law. In addition, they claim that G & W Foods was made aware of Wary's attempt to impose shopping restrictions on Plaintiffs.²² Finally, they contend that G & W Foods intentionally denied Plaintiffs the equal use and enjoyment of their services on account...