United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. WILHOIT, JR. JUDGE.
matter is before the Court upon Defendant Falls Creek,
Inc.'s Partial Motion to Dismiss Plaintiffs Amended
Complaint [Docket No. 22]. The motion has been fully briefed
by the parties [Docket Nos. 22-1, 25 and 26]. For the reasons
stated herein, the Court finds that the Amended Complaint
fails to state a claim under 42 U.S.C. § 1981 or 42
U.S.C. § 1982 upon which relief can be granted.
Therefore, Counts II and III of the Amended Complaint will be
case arises from the purchase and sale of the Super 8 Motel
in Louisa, Kentucky and the appurtenant assignment of the
property lease to the purchaser, between Louisa Lodgers, LLC
and Falls Creek, Inc. The purchaser, Louisa Lodgers, LLC,
brought this civil action against the seller, Falls Creek,
Inc., alleging that Falls Creek, Inc. violated the terms of
the Ground Lease agreement and discriminated against its
members on the basis of their national origin of the members
of its LLC, to-wit, South Asian.
filled its original Complaint against Falls Creek, Inc. in
the Circuit Court of Lawrence County, Kentucky. The case was
removed to this Court by Defendant pursuant to 28 U.S.C.
§§ 1331 and 1441. [Docket No. 1]. Shortly
thereafter, Defendant filed a Motion to Dismiss the portions
of the Plaintiffs Complaint which sought relief under Title
VII of the Federal Civil Rights Act of 1964 ("Title
VII), the Immigration Reform and Control Act of 1986
("IRCA") and the Kentucky Constitution as such
claims were not colorable under applicable State and Federal
law. [Docket No. 15]. In response to the motion, Plaintiff
conceded that the specific causes of action were not tenable
and sought leave to amend its Complaint. [Docket Nos. 16 and
17]. This Court granted Plaintiff leave to amend its
Complaint and overruled the Defendant's motion as moot.
[Docket No. 18].
Amended Complaint seeks a declaration as to the parties'
rights under the Ground Lease agreement and alleges
violations of 42 U.S.C. §§ 1981 and 1982. [Docket
seeks to dismiss Counts II and III of the Amended Complaint,
which purport to allege violations of 42 U.S.C. §§
1981 and 1982. Specifically, in these Counts, Plaintiff
alleges that Defendant discriminated against its members upon
the basis of national origin.
of a complaint is warranted under Fed.R.Civ.P. 12(b)(6) if it
fails to state a claim upon which relief can be granted. With
respect to a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Sixth Circuit Court of Appeals explained in Estate of
Ezra G. Smith v. United States, 509 Fed.Appx. 436
(6thCir. 2012) that:
[t]he Supreme Court held in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) that to survive a motion to
dismiss under Rule 12(b)(6) a complaint must contain (1)
enough facts to state a claim to relief that is plausible;
(2) more than a formulaic recitation of a cause of
actions' elements; and (3) allegations that suggest a
right to relief above a speculative level, (internal citation
omitted)...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, (internal citation omitted)...For a
complaint to survive a motion to dismiss, the non-conclusory
factual content and the reasonable inferences from that
content, must be plausibly suggestive of a claim entitling a
plaintiff to relief, (internal citation omitted) Where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not show[n]-that the pleader is entitled
Estate of Ezra G. Smith, 509 Fed.Appx. at 439.
assertions, e.g., that...[the] defendants engaged in
'outrageous' and 'unlawful' behavior...are
insufficient to state a claim that is plausible on its
face." Ogle v. Columbia Gas Transmission, LLC,
513 Fed.Appx. 520, 522-523 (6th Cir. 2013). The
"complaint must contain either direct or inferential
allegations respecting all material elements to sustain a
recovery under some viable legal theory." Bishop v.
Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir.
2008) (internal citation omitted). As the Sixth Circuit
stated in Bishop:
[c]onclusory allegations or legal conclusions masquerading as
factual allegations will not suffice. Even under Rule
12(b)(6), a complaint containing a statement of facts that
merely creates a suspicion of a legally cognizable
right of action is insufficient, (internal citations omitted)
The factual allegations must be enough to raise a right to
relief above the speculative level; they must state a claim
to relief that is plausible on its face.
Bishop, 520 F.3d at 519 (internal citations omitted)
(emphasis original). "At the very least, trial and
appellate courts should not have to guess at the nature of
the claim asserted." Kafele v. Lerner, Sampson &
Rothfuss,161 Fed.Appx. 487, 491 (6th Cir. 2005).
See alsoScheid v. Fanny Farmer Candy Shops,
Inc.,859 F.2d 434 (6*Cir. 1988)(holding that "more
than bare assertions of legal conclusions is ...