Wright v. Am. Legion Dep't of Okla., Inc.

549 F.Supp.3d 1301

Andrew WRIGHT, Plaintiff,

v.AMERICAN LEGION DEPARTMENT OF OKLAHOMA, INC., Defendant.

Case No. 20-CV-0389-CVE-CDL

United States District Court, N.D. Oklahoma.

Signed July 14, 2021

Andrew Wright, Claremore, OK, Pro Se.

John Tyler Hammons, Hammons & Price, PLLC, Muskogee, OK, for Defendant.

OPINION AND ORDER

CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

The Court has for its consideration defendant American Legion Department of Oklahoma, Inc.’s (ALDO) motion to dismiss (Dkt. # 5), ALDO's motion for default judgment (Dkt. # 11), ALDO's motion for hearing regarding its motion to dismiss and motion for default judgment (Dkt. # 14), and plaintiff Andrew Wright's motion for preliminary injunction (Dkt. # 12).

I. BACKGROUND

In its motion to dismiss, ALDO argues that the Court does not have subject matter jurisdiction and that plaintiff has failed to state a claim upon which relief can be granted. Plaintiff filed his complaint on August 6, 2020. In it, he presented all his factual allegations and claims for relief in one sentence:

The Defendant American Legion Department of Oklahoma has deprived the Plaintiff Andrew Wright of First Amendment rights to petition the government by its retaliation against the Plaintiff and others for filing a civil suit in the State Courts and Fifth Amendment due process rights by unlawfully expelling him from the American Legion after over twenty years of membership without due process.¹

Dkt. # 2. While it is certainly not clear from the face of the complaint what exactly plaintiff is alleging, it appears that he was a member of the federally chartered national American Legion (American Legion) for over twenty years and that he was expelled. That expulsion, he alleges, violated his Fifth Amendment right to due process. Moreover, it also appears that plaintiff brought a state court action against defendant or American Legion at some point, and plaintiff believes that defendant or American Legion retaliated against him in some way for doing so. This retaliation, plaintiff alleges, violated his First Amendment right to petition the government for redress of grievances. Plaintiff sued ALDO, not the American Legion. Plaintiff asserts that this Court has federal question jurisdiction to hear his case pursuant to 28 U.S.C. § 1331² and the Administrative Procedures Act (APA).

On August 28, 2020, defendant filed its motion to dismiss. In it, defendant argues that the Court lacks subject matter jurisdiction for four interrelated reasons:

(1) no federal question jurisdiction due to the Defendant being chartered under state law rather than federal law, (2) no federal jurisdiction due to the Defendant being the state-level counterpart to the federally-chartered national American Legion, (3) no federal question jurisdiction over the due process allegations because there is no state action, and (4) no federal question jurisdiction over the APA claim because the Defendant is not subject to the APA.

Dkt. # 5, at 3. Accordingly, defendant concludes, the Court should dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(1).

Defendant also argues that the Court should dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) because plaintiff failed to state a claim upon which relief can be granted. Specifically, defendant argues that plaintiff failed to allege that defendant, a private corporation incorporated in the State of Oklahoma, acted under color of state law, which is required to state a claim under 42 U.S.C. § 1983. Dkt. 5, at 5-6.

Plaintiff did not file a response to the motion to dismiss. In a separate motion for entry of default final judgment (Dkt. # 11), defendant argued that plaintiff's failure to respond to its motion to dismiss entitled defendant to an entry of default judgment pursuant to Fed. R. Civ. P. 55(b)(2). The Court disagrees. First, the proper motion for ALDO to have filed would have been a motion for confession of judgment. See LCvR 7.2(f).³ Rule 55 applies only to parties "against whom a judgment for affirmative relief is sought." Fed. R. Civ. P. 55(a). Defendant did not assert a claim against plaintiff. Thus, Rule 55 is inapplicable here.

But more importantly, this Court is not permitted to dismiss the complaint simply because plaintiff failed to respond to ALDO's motion to dismiss. Issa v. Comp USA, 354 F.3d 1174, 1177–78 (10th Cir. 2003). Indeed, "even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted." Id. at 1178 (citing McCall v. Pataki, 232 F.3d 321, 322–23 (2d Cir. 2000) ). Accordingly, the Court will evaluate the allegations in plaintiff's complaint irrespective of his failure to respond to defendant's motion. Cato v. Hargrove, Case No. 19-CV-0087-GKF-FHM, 2020 WL 2748485, at *2 (N.D. Okla. May 27, 2020) ("Even though plaintiff did not respond to the dismissal motion, this Court must consider whether the allegations in the amended complaint are sufficient to withstand defendants’ motion." (citing Issa, 354 F.3d at 1178 )). Thus, defendant's motion for default judgment (Dkt. # 14) is denied.

II. DISCUSSION

A. Legal Standards

ALDO moves to dismiss under Rule 12(b)(6) for failure to state a claim and under 12(b)(1) for lack of subject matter jurisdiction.

The Court's function in ruling on a Rule 12(b)(6) motion is not to weigh the evidence that the parties might present at trial, but to assess whether the plaintiff's complaint is legally sufficient to state a claim upon which relief may be granted. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135 (10th Cir. 2014). A complaint is legally sufficient only if it contains factual allegations such that it states a claim to relief that "is plausible on its face." Bell Atlantic 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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

On a Rule 12(b)(1) motion, the party invoking the court's jurisdiction bears the burden of establishing that jurisdiction exists. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). Because federal courts are courts of limited jurisdiction, there is a presumption against the exercise of federal jurisdiction. Id. at 919.

In applying these standards, the Court is mindful that plaintiff proceeds pro se. While pro se pleadings must be liberally construed and held to less stringent standards than pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), a district court should not assume the role of advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) ; United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) ; Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Moreover, even pro se plaintiffs are required to comply with the "fundamental requirements of the Federal Rules of Civil and Appellate Procedure" and substantive law, and the liberal construction to be afforded does not transform "vague and conclusory arguments" into valid claims for relief. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

B. Failure to State a Claim ( Rule 12(b)(6) )

As described above, plaintiff alleges that ALDO violated his First Amendment right to petition his government and his Fifth Amendment right to due process. Because it is axiomatic that the constitution's protections apply only to governmental actors, "[t]he fundamental inquiry is whether [ALDO] is a governmental actor to whom the prohibitions of the Constitution apply." San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). "Although most state action cases arise in the context of the Fourteenth Amendment and involve claims that actors have attributes of state or local government entities, the same principles apply to analysis of the line between private activities and the federal government." 1 William J. Rich, Modern Constitutional Law § 4:2 (3d ed.). This was on display in San Francisco Arts.

In San Francisco Arts, San Francisco Arts & Athletics, Inc. (SFAA), attempted to promote the "Gay Olympic Games," "using those words on its letterheads and mailings and in local newspapers." 483 U.S. at 525, 107 S.Ct. 2971. Under federal law, the United States Olympic Committee (USOC), a federally chartered corporation, had the right to prohibit certain commercial and promotional uses of the word "Olympic" and various Olympic symbols. Id. at 526, 107 S.Ct. 2971. When the USOC became aware of SFAA's attempt to use the word "Olympic" in its promotion, it moved for an injunction. Id. at 527, 107 S.Ct. 2971. The district court granted the injunction, the court of appeals affirmed, and the Supreme Court granted certiorari. Much of the opinion focused on statutory interpretation and whether Congress granted the USOC anything more than a normal trademark in the word "Olympic." Id. at 528, 107 S.Ct. 2971. But SFAA also argued that the USOC enforced its rights in a discriminatory manner in violation of the Constitution, so the Court had to evaluate whether the USOC was a government actor. Id. at 542, 107 S.Ct. 2971.

The Court held that the USOC was not a state actor. It reasoned that a congressional charter alone did "not render the USOC a Government agent." Id. at 543, 107 S.Ct. 2971. The Court further reasoned that "[a]ll corporations act under charters granted by a government, usually by a State. They do not thereby lose their essentially private character." Id. at 543-44, 107 S.Ct. 2971. In its analysis, the Court relied on principles first articulated in Fourteenth Amendment cas...