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Megna v. Little Switzerland of America Candy Factory, Inc.

United States District Court, D. Colorado

March 22, 2018

ERYN R. MEGNA, ROBERT V. MEGNA, BACKSTREET BISTRO, LLC, Plaintiffs,
v.
LITTLE SWITZERLAND OF AMERICA CANDY FACTORY, INC., KRISTINE M. ULLEMEYER, HAYES ULLEMEYER, Defendants.

          OPINION AND ORDER

          RAYMOND P MOORE United States District Judge.

         On May 22, 2017, plaintiffs Eryn R. Megna (“Mrs. Megna”), Robert V. Megna (“Mr. Megna”), and Backstreet Bistro, LLC (“the Bistro”) (collectively, “plaintiffs”) filed a First Amended Complaint (“the FAC”) against Little Switzerland of America Candy Factory, Inc., Kristine M. Ullemeyer (“Mrs. Ullemeyer”), and Hayes Ullemeyer (“Mr. Ullemeyer”) (collectively, “defendants”). (ECF No. 25). Therein, each individual plaintiff raised claims against defendants pursuant to 42 U.S.C. § 1982 (“§ 1982”) and 42 U.S.C. § 1985(3) (“§ 1985(3)”), as well as numerous claims under State law. (Id.)

         On June 6, 2017, defendants filed a motion to dismiss all claims asserted against them in the FAC (“the motion to dismiss”), pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (“Rule 12(b)(6)”). (ECF No. 26.) Plaintiff subsequently filed a response (ECF No. 28), and defendants filed a reply (ECF No. 29). The Court referred the motion to dismiss to U.S. Magistrate Judge Kathleen M. Tafoya. (ECF No. 27.)

         Pending before the Court is the Report and Recommendation (“R&R”) of the Magistrate Judge, recommending denying the motion to dismiss. (ECF No. 31.) The R&R advised the parties that they had 14 days to file specific written objections to the R&R in order to preserve de novo review. (Id. at 14-15.) Fourteen days later, defendants filed objections to the R&R. (ECF No. 33.) Plaintiffs did not file any objections to the R&R, but, did file a response to defendants' objections (ECF No. 41).

         I. Review of a Report and Recommendation

         A district court may refer pending motions to a magistrate judge for entry of a report and recommendation. 28 U.S.C. §636(b)(1)(B); Fed.R.Civ.P. 72(b). The court is free to accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. §636(b)(1); Fed.R.Civ.P. 72(b)(3). A party is entitled to a de novo review of those portions of the report and recommendation to which specific objection is made. See Fed.R.Civ.P. 72(b)(2), (3). “[O]bjections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30 St., 73 F.3d 1057, 1060 (10th Cir. 1996); see also See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.”). Furthermore, arguments not raised before the magistrate judge need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).

         II. The Magistrate Judge's Recommendations and Defendants' Objections

         The Magistrate Judge, first, recommended disposing of the motion to dismiss solely under Rule 12(b)(6) because defendants' jurisdictional questions were intertwined with the merits of the case. (ECF No. 31 at 4-5.) The Magistrate Judge further recommended declining to consider various documents defendants had attached to a prior version of the motion to dismiss. (Id. at 5-7.) Defendants do not raise any objections to these recommendations. (See ECF No. 33 at 1-2.) As a result, the Court ADOPTS the R&R to the extent it recommends disposing of the motion to dismiss under Rule 12(b)(6) only and declining to consider the documents attached to a prior version of the motion to dismiss.

         The Magistrate Judge, next, recommended rejecting defendants' argument that claim and issue preclusion barred plaintiffs' claims. (ECF No. 31 at 7-8.) The Magistrate Judge found an analogous case persuasive, and that defendants failed to sufficiently develop this argument and failed to address plaintiffs' arguments in opposition thereto. (Id.) Defendants do not object to this recommendation either. (ECF No. 33 at 1-2.) As a result, the Court ADOPTS the R&R to the extent it recommends rejecting claim and issue preclusion as bases for dismissing plaintiffs' claims.

         The Magistrate Judge, next, recommended denying the motion to dismiss with respect to plaintiffs' § 1982 claims. (ECF No. 31 at 9-13.) The Magistrate Judge found that the FAC alleged the first element of a § 1982 claim in alleging facts suggesting defendants has a discriminatory intent in applying restrictive covenants against only African-Americans. (Id. at 9-10) The Magistrate Judge found that the FAC alleged the second element of a § 1982 claim in alleging that defendants' enforcement of restrictive covenants interfered with plaintiffs' use of their property. (Id. at 10-13.) The Magistrate Judge found that interfering with plaintiff's use of their property was a sufficient legal basis to pursue a § 1982 claim, and the FAC's allegations were sufficient to show that defendants had interfered with plaintiffs' use of their property. (Id.) The moving defendants object to the Magistrate Judge's recommendation that plaintiffs have set forth a legally sufficient § 1982 claim, and, even if it was legally sufficient, that they have sufficiently alleged that defendants denied plaintiffs use of their property. (See ECF No. 33 at 1-2.)

         The Magistrate Judge, next, recommended that the motion to dismiss should be denied with respect to plaintiffs' § 1985(3) claim. (ECF No. 31 at 13.) The Magistrate Judge found that § 1985(3) effectively adds a conspiracy component to § 1982, and thus, because the allegations with respect to § 1982 were sufficient, they were also sufficient under § 1985(3). (Id.) The moving defendants object to this recommendation on the same grounds raised with respect to plaintiffs' § 1982 claims. (ECF No. 33 at 9.)

         The Magistrate Judge, next, recommended that supplemental jurisdiction should be exercised over plaintiffs' State law claims because plaintiffs' federal claims remained. (ECF No. 31 at 13.) Defendants do not raise any objection to this recommendation. (See ECF No. 33 at 1-2.) In any event, because the Court agrees that plaintiffs' federal claims should not be dismissed, the Court ADOPTS the R&R to the extent it recommends exercising supplemental jurisdiction over plaintiffs' State law claims.

         III. Motion to Dismiss Standard

         In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). In the complaint, the plaintiff must allege a “plausible” entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556, 127 S.Ct. 1955 (2007). “Asking for plausible grounds … does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [prohibited conduct].” Id. at 556. Conclusory allegations, ...


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