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Garcia v. Bill Me Later, Inc.

United States District Court, S.D. New York

July 28, 2015

BILL ME LATER, INC. and PAYPAL, INC. Defendants.


RICHARD J. SULLIVAN, District Judge.

Plaintiff Melvin Garcia, proceeding pro se, brings this action against Bill Me Later, Inc. ("BML") and PayPal, Inc. ("PayPal") (together, "Defendants"), asserting violations of 42 U.S.C. §§ 1981 and 1982, "conspiracy with racial animus, " abuse of process, intentional infliction of emotional distress, fraudulent concealment, and negligence. Now before the Court is Defendants' unopposed motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1) and 12(b)(6). For the reasons set forth below, the motion is granted in its entirety.


A. Facts

In the early months of 2012, Plaintiff entered into a contract with PayPal whereby Plaintiff "made certain online purchases... and... Pav Pal. Inc would send those items" to Plaintiff. (Compl. ¶ 6.) Stating that he was unaware of the "association, if any" between PayPal and BML, Plaintiff claims that he did not have a contract with BML.[2] ( Id. ¶ 13.) Plaintiff alleges that BML sent him numerous bills and called him multiple times. In doing so, Plaintiff claims that BML "interfere[d] with an active contract" between him and PayPal, and that "but for his race these fake bills and other abuses wouldn't have occur[red]." ( Id. ¶¶ 8, 21.) He further asserts that Defendants' actions are "an example of one of the Nation's vicious credit schemes and scams generated by firms under that same old Jim Crow '-like discriminatory policy and practices." ( Id. ¶ 3.) Plaintiff alleges that as a result of this "scheme" he "became financially broke" and his "perfect credit score" was "destroyed." ( Id. ¶¶ 1, 8.)

B. Procedural History

Plaintiff filed the Complaint on December 3, 2013. (Doc. No. 2.) On July 22, 2014, after being served, Defendants filed a pre-motion letter requesting leave to file a motion to dismiss. (Doc. No. 9.) Notwithstanding the Court's individual practices, which require the non-moving party to submit a three-page response within three business days of receiving a pre-motion letter, Plaintiff did not submit a response to the pre-motion letter or otherwise request additional time in which to respond. With the Court's permission, Defendants thereafter filed the instant motion to dismiss on September 12, 2014. (Doc. Nos. 13-16.) On September 15, 2014, the Court issued an Order directing Plaintiff to respond by October 15, 2014. (Doc. No. 17.) Plaintiff did not file a response, and has had no communication with the Court since filing the Complaint.


To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must "provide the grounds upon which [the] claim rests." ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell All. Corp. v. Twombly, 550 U.S. 544. 570 (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 (2009). In reviewing a Rule 12(b)(6) motion to dismiss, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ATSI Commc'ns, 493 F.3d at 98. However, that tenet "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Thus, a pleading that only offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. If the plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Id. at 570. Accordingly, although the court must construe a complaint liberally where the plaintiff is pro se, the complaint must still contain factual allegations that raise a "right to relief above the speculative level" in order to survive a motion to dismiss. Dawkins v. Gonyea, 646 F.Supp.2d 594, 603 (S.D.N.Y. 2009) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). When a plaintiff has not opposed a motion to dismiss, his failure to do so does not itself justify the dismissal of the complaint. Haas v. Commerce Bank, 497 F.Supp.2d 563, 564 (S.D.N.Y. 2007). Rather, the court must still determine the legal sufficiency of the complaint based on its own reading. Id.


As noted above, Plaintiff brings claims under 42 U.S.C. §§ 1981 and 1982, as well as a claim for "conspiracy with racial animus" and New York state-law claims for abuse of process, intentional infliction of emotional distress, fraudulent concealment, and negligence. (Comp. ¶¶ 23-101.) Plaintiff seeks $3 million in compensatory damages and $3 million in punitive damages. ( Id. ¶¶ 32, 38, 45, 57, 63, 101.) Defendants argue that the Complaint must be dismissed because it fails to state a claim upon which relief can be granted. The Court addresses each of Plaintiff's claims in turn.

A. Claims Pursuant to 42 U.S.C. §§ 1981 and 1982

Plaintiff first alleges violations of Sections 1981 and 1982 of Title 42 of the United States Code. Section 1981 "protects the equal right of [a]ll persons within the jurisdiction of the United States' to make and enforce contracts' without respect to race." Domino's Pizza v. McDonald, 546 U.S. 470, 474-75 (2006) (quoting 42 U.S.C. § 1981(a)). Similarly, Section 1982 prohibits racial discrimination with respect to "the right to inherit, purchase, lease, sell, hold, and convey real and personal property.'" Sullivan v. Little Huntington Park, Inc., 396 U.S. 229, 236 (1969) (quoting 42 U.S.C. § 1982). "To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff 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 (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993). Section 1982 claims are evaluated under the same standard. See Puglisi v. Underhill Park Taxpayer Ass'n, 947 F.Supp. 673, 699-700 (S.D.N.Y. 1996) ("[I]t is a well[-]established principle that due to the related origins and language of the two sections, they are generally construed in pari materia." (citation and internal quotation marks omitted)); see also Griffin v. Santander Bank, No. 12-cv-1249 (SJF), 2014 WL 204229, at *5 (E.D.N.Y. Jan. 16, 2014) (using the same standard for claims under Sections 1981 and 1982).

Plaintiff is Hispanic and alleges that, "due to intentional racial discrimination by the defendants here, [P]laintiff['s] right to make and enforce contract[s], and property rights concerning [P]laintiff's perfect credit score[, were] denied and deprived." (Compl. ¶ 60.) Plaintiff also claims "[t]hat in New York City and among the defendants hereto there is an unwritten policy and practice called the Jim Crow laws ' whereby persons of such races of African-American and Hispanic-American are deliberately targeted." (Compl. ¶ 21) (all emphasis in original). This bare recitation of the elements coupled with a conclusory allegation of widespread conspiracy involving discrimination against racial minorities is, of course, insufficient to state a claim for violations under Sections 1981 and 1982. The Complaint simply does not allege any facts that would support an inference that Defendants discriminated against Plaintiff on the basis of his race or national origin. Indeed, Plaintiff fails to plead facts ...

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