PLAINTIFF’S OPPOSITION TO PUBLIX SUPER MARKETS

XXX

 

Plaintiff in pro per

 

XXX DISTRICT COURT

SOUTHERN DISTRICT OF XXX

FORT LAUDERDALE DIVISION

 

XXX,

Plaintiff,

vs.

XXX.,

Defendants

 Case No.: XXX

PLAINTIFF’S OPPOSITION TO PUBLIX SUPER MARKETS, INC.’S MOTION TO DISMISS VERIFIED COMPLAINT

 

 

 

NOW COMES Boyd Johnson, Plaintiff, and files this Opposition to Publix Super Markets, Inc.’s (hereinafter referred to as “Defendant”) Motion to Dismiss Verified Complaint, and hereby avers as follows:

  1. Defendant presents arguments under Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim upon which relief can be granted.)
  2. Dismissal under rule 12(b)(6) is proper only when the complaint lacks a cognizable legal theory or does not allege facts that, when taken as a whole, raise the claim for relief above mere speculation. Bell Atlantic Corp. v. Twombly¸ 550 U.S. 544, 555-56 (2007); Coleman v Md. Ct. of App., 626 F.3d 187, 190 (4th 2010). As with standing, the court will assume all factual allegations are true and draw all reasonable inferences in favor of the plaintiff. Edwards v City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). When, as here, a 12(b)(6) motion is used to test the sufficiency of the complaint in a civil rights case, the court will be “especially solicitous of the harms alleged.” Id.
  3. Defendant’s motion is filed in bad faith. Defendant seeks to evade liability for the racial discrimination that Plaintiff suffered at Defendant’s premises.
  4. Defendant claims that Plaintiff filed his case outside the statute of limitations. The statute of limitations for discrimination cases is two years. The facts, allegations and causes of action in the Complaint took place on April 23rd Plaintiff’s Complaint was filed on April 14th 2022. The statute of limitations was to expire on April 23rd 2022. Plaintiff’s Complaint is clearly within the statute of limitations.
  5. Defendant’s other ground for dismissal of Plaintiff’s Complaint is that Plaintiff has failed to state a cause of action for which relief can be granted. To the contrary, Plaintiff has brought a cause of action for discrimination under section 1981 of the Civil Rights Act.
  6. 42 U.S. Code § 1981(a) provides as follows: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
  7. 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 concerns one or more of the activities enumerated in the statute.
  8. Plaintiff is an African American male adult of sound mind. The African American race is a minority in light of the population and the history. He experienced discrimination when he arrived at Defendant’s premises and was asked to leave for not having a facial mask on. Plaintiff observed that he was the only one who was asked to leave. All the others who were at Defendant’s establishment were people of Caucasian origin who were allowed to stay, despite not having facial masks on.
  9. Defendant intended to kick Plaintiff alone out of its premises. There is no justification whatsoever for Defendant’s actions of specifically asking Plaintiff to leave while allowing people of Caucasian origin to stay despite doing the same thing for which Plaintiff was allegedly asked to leave. It is not a coincidence that Plaintiff, an African American man, was the only one who was spotted not wearing a mask by Defendant’s staff.
  10. Section 201 (a) of Title II commands that all persons shall be entitled to the full and equal enjoyment of the goods and services of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin; and § 201 (b) defines establishments as places of public accommodation if their operations affect commerce or segregation by them is supported by state action. Sections 201 (b) (2) and (c) place any “restaurant . . . principally engaged in selling food for consumption on the premises” under the Act “if . . . it serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce.”
  11. That Act is clearly a law conferring a specific right of racial equality, for in § 201 (a) it guarantees to all the “full and equal enjoyment” of the facilities of any place of public accommodation without discrimination on the ground of race.
  12. Defendant’s premises are a place of public accommodation since it is a store that sells goods to members of the general public. It is expected that anyone will walk in Defendant’s premises and buy goods. There is no doubt that the operations of Defendant affect commerce.
  13. Since Defendant’s premises is a place of public accommodation, Plaintiff’s right to full and equal enjoyment of the premises is guaranteed in section 201. Defendant’s actions were in violation of Plaintiff’s rights under section 1981 of the Civil Rights Act as well as section 201. Therefore, the allegation that Plaintiff has failed to state a claim for which relief should be granted fails.

REASONS WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests this Honorable Court to DENY and STRIKE Publix Super Market’s, Inc.’s Motion to Dismiss Verified Complaint and award Plaintiff the costs of this Motion.

Dated this ____ day of May, 2022.

Respectfully Submitted,

___________________________________

XXX,

Plaintiff in pro per

 

VERIFICATION

I, Boyd Johnson, being duly sworn depose and say that I have read the foregoing Opposition to Publix Super Markets, Inc.’s Motion to Dismiss Verified Complaint and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

 

_________________________________

(Sign in the presence of a Notary Public)

 

Sworn to and subscribed before me this ___ day of XXX

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________