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Gray v. Apple, Inc.

United States District Court, N.D. California

May 3, 2017

TERELL GRAY, Plaintiff,
v.
APPLE INCORPORATED, et al., Defendants.

          ORDER DENYING MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND GRANTING MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM RE: DKT. NO. 64, 70

          HAYWOOD S. GILLIAM, JR. United States District Judge.

         Pending before this Court are Defendant Apple Incorporated's motion to dismiss the complaint for failure to prosecute, Dkt. No. 70, and motion to dismiss for failure to state a claim. See Dkt. No. 64. For the reasons detailed below, the Court DENIES the motion to dismiss for failure to prosecute and GRANTS the motion to dismiss for failure to state a claim.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Terrell Gray alleges several claims of racial discrimination under 42 U.S.C. §§ 1981, 1982, 1985(3), as well as negligent hiring, training and supervision, and intentional infliction of emotional distress against Defendant.

         Plaintiff alleges that in December 2012, Plaintiff bought an Apple computer at BestBuy. Dkt. No. 4 (“FAC”) ¶ 18. When it arrived with a cracked screen, Plaintiff contacted Apple's customer service who advised him to return it to a local Apple store. Id. 20-21. On December 30, 2012, Plaintiff went to an Apple store in Berkeley, California to do so. Id. ¶ 22.

         An Apple employee was “unresponsive” to Plaintiff and refused to honor the return. Id. ¶¶ 24-27. Plaintiff attributes this refusal to the employee's unfounded belief that the computer was stolen. Id. ¶¶ 27-28. Police officers approached, asking the employee if he wanted Plaintiff to leave. Id. ¶¶ 30-32. The employee said yes. Id. ¶ 32. The police officers then escorted Plaintiff from the store, handcuffed him, and took him to a local hospital. Id. ¶¶ 33-35. Plaintiff further alleges on information and belief that a white customer purchased or returned Apple products around the same time, without incident. Id. ¶¶ 37.

         Two days later, Plaintiff returned to the same store to return his computer. Id. ¶¶ 40. The police were called again and arrested Plaintiff. Id. ¶ 41. Plaintiff was incarcerated and then transferred to a local hospital. Id. ¶ 42-44. Eventually an unidentified female successfully returned and exchanged Plaintiff's computer on his behalf. Id. ¶ 46. Plaintiff asserts that these incidents reflect Apple's company-wide practice “of racially profiling and targeting its customers of color.” Id. ¶ 37. Plaintiff alleges that because of these incidents he suffered psychological trauma that required several months of in-patient treatment. Id. ¶ 45.

         B. Procedural Posture & Request to Withdraw as Counsel

         Plaintiff initially filed this action on December 23, 2013, in the District of New Jersey, where Plaintiff is a resident. Although Plaintiff named two individuals, Kelley Dorgan and Greg Hopson, as well as the City of Berkeley and the Berkeley Police Department in this action, Plaintiff only served Apple, Inc.

         In August 2016, the case was transferred to the Northern District of California because the underlying events occurred in Berkeley, California. Since that time, Plaintiff has endeavored, with the assistance of his New Jersey counsel, to find and retain new, local counsel. Plaintiff then decided to proceed pro se. He signed a motion to “substitute counsel” in December 2016, withdrawing his New Jersey attorneys, Javonna C. Baker and Tracey S. Cosby, as his counsel and agreeing to represent himself pro se. See Dkt. No. 86. The Court held a hearing on March 17, 2017, confirming that Plaintiff is now pro se and that has endeavored to represent himself since December 2016, filing a pro se opposition to Defendant's motion to dismiss for failure to prosecute on December 14, 2016. See Dkt. No. 75.

         II.MOTIONS TO DISMISS

         Defendant filed both a motion to dismiss the complaint for failure to prosecute, Dkt. No. 70, and a motion to dismiss for failure to state a claim, Dkt. No. 64. The Court addresses each in turn.

         A. ...


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