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July 29, 2003


The opinion of the court was delivered by: Sidney Stein, District Judge


Asante Kahari, appearing pro se, brings this action pursuant to 42 U.S.C. § 1981 on the grounds that defendant Quebecor World (USA) Inc., refused to print his magazine because Kahari is African American. Quebecor World contends that it declined to print Kahari's magazine, not because Kahari is African-American, but solely because of its offensive content and Kahari's failure to meet his financial obligations to Quebecor. Defendant now moves for summary judgment in its favor pursuant to Fed.R.Civ.P. 56. Because there is no evidence that Quebecor intended to discriminate against Kahari on the basis of his race, that motion is granted and the amended complaint shall be dismissed.


The following facts are agreed to unless otherwise noted: Asante Kahari is the publisher of the magazine entitled alternatively "Niggertainment Monthly" or "Gutter"; he is African-American. Quebecor World is a printing company that prints magazine, catalogs, books, direct mail materials, and directories. In January 2002, plaintiff Kahari met with Peter King, a sales executive working at Quebecor's Manhattan offices, to negotiate a contract for Quebecor to print 1000 copies of his magazine, entitled at that time "Gutter." King declined to print the magazine because Kahari wanted only 1000 copies and Quebecor had a threshold print count of 5000 copies. In [ate February, Kahari contacted King and stated that he now wanted 10,000 copies of his magazine printed. On February 25, 2002, King faxed a price quote to Kahari based on the 48 page and 4 cover page estimate Kahari had given him. The form instructed Kahari to submit his proposed publication on computer zip files and also in hard copy.

Kahari accepted the price quote and King faxed him Quebecor's credit application form. Kahari subsequently returned the completed credit application and executed sales form to King. On the completed credit application, Kahari and Patricia Harris were listed as the parties authorized to make purchases on behalf of "Gutter Entertainment." After reviewing Kahari's application for credit, Quebecor set a price for the printing of $10,000, half of which to be paid upfront, and the rest due 30 days after delivery of the printed magazine. In mid March, Kahari contacted King to tell him that he was preparing the magazine and would submit it for printing later in the week.

Kahari then met with King on March 22, where Kahari gave King the zip files containing the magazine and paid $1,700 in cash as part of his initial payment. At that meeting, Kahari told King that he wanted to print only a 48 page magazine, not the original 48 page and 4 cover page version on which the price quote was based. King agreed to prepare a revised lower quote and sent the disk containing the computer version of the magazine to Joshua Dearwater at Quebecor's printing plant.

King then sent Kahari the revised quote, which now totaled $8,400. The balance of the initial payment was $2,500, which Kahari sought to have placed on Harris's credit card. At the same time, Harris shipped a package by Airborne Express to Dearwater at the printing plant. On March 26, Dearwater received the package, which according to him, contained the first hard copy of the magazine he had received. Dearwater claims that he had waited to open the zip files of the magazine until he received the hard copy, which permitted him to check the computer version for accuracy against the hard copy. Upon reviewing the hard copy, Dearwater found that the magazine had a title of "Niggertainment Monthly" and contained offensive, sexist and racist articles with such titles as "Halle Berry the Hoe," "Guess Who Fucked Usher Raymond," "How to Get a Nigger Murdered," and "Fuck Juanita Jordan." He brought the magazine to the attention of his supervisors, who determined that the plant would not print the magazine. The materials were then sent back to King to return to Kahari. King was also informed by the credit department that same day that Harris's card had been declined by the credit card company when Quebecor tried to charge the balance of the deposit to it, as agreed to by the parties.

The parties dispute a number of points: First, Kahari asserts that he gave King a hard copy of the magazine at the March 22 meeting. King however, insists that Kahari never gave him a hard copy, and that he had to call Kahari on March 25 to direct him to send it to Dearwater at the printing plant. According to King, he first saw the magazine's contents only after Dearwater faxed him copies of pages from the hard copy Kahari had sent to Dearwater. Second, Kahari asserts that he changed the size of the magazine at Dearwater's request. Therefore, according to Kahari, the package sent on March 25 to Dearwater contained no material that had not previously been seen, but was "a communication to confirm the deletion of the pages." King asserts that Kahari changed the size at his own initiative at the March 22 meeting, and both King and Dearwater claim that the March 25 package was the first hard copy of the magazine sent to the printing press, and that Dearwater did not review any copy of the magazine until March 26.

Kahari commenced this action pro se in May 2002. Shortly thereafter, Chief Judge Michael B. Mukasey sue sponte dismissed Kahari's complaint for failing to comply with Fed.R.Civ.P. 8. Judge Mukasey directed Kahari to file an amended complaint that set forth facts sufficient to support his unsupported allegation that Quebecor's decision not to print the magazine was based on "pure discrimination." Kahari v. Quebecor World, 02 Civ. 5720 (MBM) (S.D.N.Y. Jul. 23, 2002). Kahari subsequently filed his amended complaint in August 2002. Quebecor then moved to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6), but this Court denied that motion on the grounds that plaintiff had adequately pled intentional discrimination pursuant to the U.S. Supreme Court's decision in Swierkiewicz v. Sorema, 534 U.S. 506, 512-13 (2002). Kahari v. Quebecor World, 02 Civ. 5720 (S.D.N.Y. Apr. 2, 2003). Defendant now moves for summary judgment pursuant to Fed.R.Civ.P. 56.


Summary judgment may be granted "only when the moving party demonstrates that `there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when `no reasonable trier of fact could find in favor of the nonmoving party.'" Allen, 64 F.3d at 79 (citation omitted) (quoting Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).

Since Kahari is proceeding pro se,*fn1 this Court will hold his pleadings to "less stringent standards than formal pleadings drafted by lawyers. . . ." Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). His supporting papers have been read liberally and interpreted "to raise the strongest arguments that they suggest."*fn2 Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

42 U.S.C. § 1981 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 enjoined by white citizens." To establish a claim pursuant to 42 U.S.C. § 1981, a plaintiff must show: (1) that he is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). The Second Circuit has "emphasize[d] that an essential element of [the] cause of action is a requirement that the alleged discrimination took place because of the individual's race." Id., 7 F.3d at 1088.

Kahari is African American and the activity in question is the making of contract. Therefore, summary judgment turns on whether or not there is a genuine issue of material fact whether Quebecor intentionally discriminated against Kahari on the basis of his race. Where the issue is whether an improper motive existed in Section 1981 cases, the Second Circuit borrows the burden-shifting approach of Title VII cases: a plaintiff must first satisfy the minimal burden of making out a prima facie case of discrimination; the burden then shifts to the defendant to produce a legitimate, nondiscriminatory reason for its actions; and the final burden rests with the plaintiff to prove that, despite the ...

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