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Martinez v. Wal-Mart

United States District Court, D. Kansas

November 28, 2017

DANIEL MARTINEZ, Plaintiff,
v.
WAL-MART, et al., Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This action arises out of Plaintiff Daniel Martinez' unsuccessful attempt to exchange a tire pump at a Wal-Mart located in Wichita, Kansas, and the encounter that ensued between Martinez and two managerial employees. Martinez asks this Court to find that Wal-Mart, along with two of its managerial employees, violated his First Amendment rights by asking him to leave the store after he commented on the physical appearance of an assistant manager.

         Three motions are currently before the Court: (1) Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Doc. 7); (2) Plaintiff's Motion to Strike Defendant's Motion to Dismiss (Doc. 9); and (3) Plaintiff's Motion to Amend (Doc. 11). As explained below, the Court grants Wal-Mart's motion to dismiss, denies Martinez' motion to amend, and denies as moot Martinez' motion to strike.

         I. Factual and Procedural Background

         According to the Amended Complaint, Martinez tried to exchange a tire pump to Wal-Mart, but was told by an assistant manager, Lisa (last name unknown), that he could not exchange the pump without a receipt. Another manager, Mike (last name unknown), added that even with a receipt, an exchange would not be performed beyond 90 days after the purchase. Martinez disagreed and requested Lisa's last name, purportedly to pursue legal action. At some point in his discussion with Mike, Martinez described Lisa as having a “Butch Style Hair Cut.” Mike told Martinez that his comment was out of order and asked him to leave the store.

         On August 10, 2017, Martinez filed a Complaint asking the Court to rule that he was wrongfully asked to exit the store in violation of the First Amendment. Martinez filed an Amended Complaint on August 16, 2017, expanding upon his requested relief, but not amending the statement of his claim.[1] Martinez alleges that Wal-Mart, Lisa, and Mike violated his First Amendment rights, and requests $500, 000 in damages.

         In its motion to dismiss, Wal-Mart asserts that the Amended Complaint should be dismissed for failure to state a claim under Rule 12(b)(6), for insufficient process and insufficient service of process under Rules 12(b)(4) and (5), and for lack of personal jurisdiction under Rule 12(b)(2). Martinez filed a motion to strike Wal-Mart's motion to dismiss, as well as a combined response and request for leave to amend (Docs. 10 and 11).

         Wal-Mart contends that Martinez' First Amendment claim fails as a matter of law because Martinez has not and cannot allege that Wal-Mart is a governmental entity or that any party acted under color of law-a prerequisite for stating a valid claim for violations of the First Amendment. Martinez asserts that Wal-Mart has not provided clear and convincing evidence that Lisa and Mike did not act under the color of law, and that private corporations and individuals may violate the First Amendment.

         The motions are fully briefed and ripe for adjudication. For the reasons stated below, the Court grants Wal-Mart's motion to dismiss, denies Martinez' motion to amend, and denies as moot Martinez' motion to strike.

         II. Legal Standards

         A. Motion to Dismiss [2]

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must present factual allegations, assumed to be true, to “raise a right to relief above the speculative level” and contain “enough facts to state a claim to relief that is plausible on its face.”[3] Under this standard, “the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[4] The plausibility standard enunciated by the Supreme Court in Bell Atlantic v. Twombly, seeks a middle ground between heightened fact pleading and “allowing complaints that are no more than ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause action, ' which the Court stated ‘will not do.' ”[5] A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.[6]

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”[7] The Court, however, cannot “assume the role of advocate for the pro se litigant.”[8] The Court will not “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”[9] The Court need only accept as true a plaintiff's “well-pleaded factual contentions, not his conclusory allegations.”[10]

         B. Motion to Amend

         A “party may amend its pleading once as a matter of course” within 21 days after serving it, or within 21 days after service of a responsive pleading or a Rule 12 motion.[11] Thereafter, “a party may amend its pleadings only with the opposing party's written consent or the court's leave.”[12] Under Rule 15(a), leave to amend a complaint is freely given when justice so requires. Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.' ”[13] Courts may, however, deny leave to amend based on “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.”[14] “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason.”[15] It is within the Court's sound discretion whether to allow a proposed amendment after the permissive period.[16]

         III. Analysis

         A. Motion to Dismiss

         The First Amendment to the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.”[17] “[T]he constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state.”[18] ‚ÄúThus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to ...


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