FINDINGS & RECOMMENDATIONS
On December 1, 2011, the court held a hearing on defendant OfficeMax, Inc.'s October 6, 2011 motion to dismiss. Timothy S. Anderson appeared for defendant. Plaintiff did not make an appearance. Upon review of the motion and the documents in support and opposition, discussion with counsel and good cause appearing therefor, the court finds as follows:
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 2011, plaintiff, who is African American, took his personal computer to a computer repair shop because it had crashed the day prior. That morning*fn1, plaintiff, his wife and young daughter visited an OfficeMax retail store in Davis, California to "browse" the laptop computers. While inspecting the laptops and over the course of three minutes, three OfficeMax employees asked plaintiff if he needed assistance. After telling them repeatedly that he did not need help, one of the employees said to him, "You are loitering...please leave the store now if you are not making a purchase. Get out!" They also said, "You're loitering, you must leave leave [sic] our store now or we're calling the cops on you!" During this time, plaintiff's daughter was frightened by the employees' behavior and had to be escorted out of the store by plaintiff's wife. Plaintiff also left the store shortly thereafter. Plaintiff avers that the employees were motivated by racial animus. Plaintiff, who is an author, asserts that he and his family have suffered mental distress and loss of potential income due to the incident and seeks $1.65 million in damages.
On August 18, 2011, plaintiff filed the instant action in the Yolo County Superior Court against OfficeMax for violations of 42 U.S.C. §§ 1981 and 1983. This action was removed to this court on September 30, 2011. On October 6, 2011, defendant filed a motion to dismiss. On October 11, 2011, plaintiff filed an opposition. On November 18, 2011, defendant filed a reply.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
The court is permitted to consider material properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Defendant seeks dismissal of plaintiff's Section 1981 claim on the ground that plaintiff fails to state a prima facia case of discrimination.
Section 1981 "protects the right of '[a]ll persons within the jurisdiction of the United States' to 'make and enforce contracts' without respect to race." Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 475 (2006) (quoting § 1981(a)). Making and enforcing contracts includes "'the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.'" Id. (quoting § 1981(b)). "Any claim brought under § 1981, therefore, must initially identify an impaired contractual relationship under which the plaintiff has rights." Id. at 479 (internal quotation omitted). A plaintiff "cannot state a claim under § 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes to make or enforce." Id.
While Section 1981 is generally invoked in the employment context for, e.g., claims of hostile environment, failure to promote, or wrongful dismissal, litigants have also brought suit under the statute for claims of discrimination in retail and service settings. In Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138 (9th Cir. 2006), a case of first impression, the Ninth Circuit recognized a Section 1981 claim for discrimination in non-employment contracts. Id. at 1144. The Lindsey court adopted the standards set out by the Sixth and Seventh Circuits for establishing a prima facie case of discrimination in non-employment contracts. Lindsey, 447 F.3d at 1145. To establish a prima facie case, plaintiff must show: "(1) [he] is a member of a protected class, (2) [he] attempted to contract for certain services, and (3) [he] was denied the right to contract for such services." Id. at 1145 (citing Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir. 2001), and Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir. 1996)).
Like the Lindsey court and the Sixth and Seventh Circuits, this court applies the burden-shifting framework announced by the Supreme Court in McDonnell Douglas to plaintiff's claim of discrimination under § 1981. 411 U.S. 792, 802-04 (1977). See also Lindsey, 447 F.3d at 1144. Thus, the plaintiff has the initial burden to establish a prima facie case of discrimination in violation of his civil right to make and to enforce contracts. Lindsey, 447 F.3d at 1144. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for terminating the plaintiff. McDonnell Douglas, 411 U.S. at 802-04. ...