LAURIE SMITH CAMP, District Judge
Before the Court is the Defendants' Motion to Dismiss Cause of Action Under 42 U.S.C. § 1981 (Filing No. 28). The Plaintiff's cause of action under § 1981 is the only remaining cause of action in the First Amended Complaint and did not appear in the Plaintiff's original Complaint. The Defendants submitted a brief in support of their motion (Filing No. 29). The Plaintiff did not submit a brief in opposition to the Motion, but the Court has considered the Plaintiff's Brief in Support of Plaintiff's Motion to Reconsider Dismissal Order (Filing No. 26) in which the Plaintiff presented arguments in support of his claim under § 1981, although that cause of action did not appear in the initial Complaint that was the subject of the Court's Order of Dismissal (Filing No. 19).
FACTS
All facts are derived from the allegations in the First Amended Complaint (Filing No. 24). The Plaintiff, Frank Bilello ("Bilello") is a resident of the State of Iowa. He repairs home appliances in the homes of customers in Omaha, Nebraska. His employer prohibits him from asking customers for the use of their restroom facilities.
The Defendant, Kum Go, LLC ("Kum Go"), is a limited liability company doing business in Omaha and owned by the Defendant, Krause Gentle Corporation ("Krause Gentle"). Kum Go sells gasoline and ready-to-eat food at numerous locations in Omaha. It provides restroom facilities for its customers at its stores west of Omaha's 42nd Street, but not at its stores east of 42nd Street. The area of Omaha that is east of 42nd Street is described in the First Amended Complaint as "racially mixed" and "economically distressed." Bilello works in the areas of Omaha east of 42nd Street, and it would be "most convenient" for him to use the restrooms at the Kum Go facilities east of 42nd Street. He has been denied the use of such restrooms, despite his purchase of goods at the stores and his request to use the restrooms after purchasing goods. The denial of the use of the restroom facilities has caused him repeated discomfort, inconvenience, and embarrassment.
Bilello's First Cause of Action, based on an alleged violation of 42 U.S.C. § 2000(a) has been dismissed (Filing No. 30). Bilello's Second Cause of Action alleges a violation of 42 U.S.C. § 1981.
ANALYSIS
The Defendants contend that Bilello's Amended Complaint contains an insufficient jurisdictional statement. The Defendants further contend that Bilello's Second Cause of Action fails to state a claim upon which any relief can be granted because (1) Bilello has not alleged that he has suffered discrimination on the basis of his own race, (2) Bilello has not alleged that he has suffered intentional discrimination, and (3) Bilello has not alleged that any discrimination concerned one or more of the activities enumerated in § 1981.
Fed.R.Civ.P. 12(b)(1) permits a party to raise by motion "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(6) permits a party to raise by motion "failure to state a claim upon which relief can be granted." When evaluating such motions to dismiss, the Court must accept all of the factual allegations in the complaint as true, and should make every reasonable inference in favor of the plaintiff. Stone Motor Co. v. General Motors Corp., 293 F.3d 456, 464 (8th Cir. 2002); Brotherhood of Maintenance of Way Employees v. Burlington Northern Santa Fe R.R., 270 F.3d 637, 638 (8th Cir. 2001).
Statement of Jurisdiction
With respect to the sufficiency of Bilello's jurisdictional statement in the First Amended Complaint, it is true that the Court's jurisdiction is derived from 28 U.S.C. § 1331 and 1343. Bilello did not cite 28 U.S.C. § 1331 or § 1343 in his statement of jurisdiction, but instead referred directly to 42 U.S.C. § 1981, 2000a, and 2000a-3, which are the specific statutes that raise the federal questions Bilello has asked the Court to address. The jurisdictional statement in the First Amended Complaint is sufficient for the Court to infer subject matter jurisdiction, and the Court finds that it does in fact have such subject matter jurisdiction. To the extent the Defendants seek dismissal pursuant to Fed.R.Civ.P. 12(b)(1), the motion is denied.
Failure to State a Claim upon which Relief Can Be Granted
With respect to Bilello's Second Cause of Action, he simply alleges that the Defendants are in willful violation of 42 U.S.C. § 1981.
Section 1981 provides in pertinent part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens. . . . For purposes of this section, the term `make and enforce contracts' includes . . . the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Section 1981(c) specifies that the rights described are protected against impairment by non-governmental discrimination.
Liberally construing Bilello's First Amended Complaint, he contends that by purchasing goods from Kum Go stores east of 42nd Street he has entered into contractual relationships with the stores, and that the use of the stores' bathroom facilities is a benefit, privilege, term or condition of that contractual relationship. He further contends that he has been denied that benefit, privilege, term or condition, at least in part due to the race of other people who reside in the geographic area surrounding the stores. In support of this theory, Bilello cites the case of Buchanan v. Consolidated Stores Corp., 125 F. Supp.2d 730 (D.Md. 2001). In Buchanan, African-American plaintiffs alleged that the defendant refused to accept their checks at stores located in predominantly African-American neighborhoods. The defendant argued that it did not discriminate on the basis of race because it refused to accept checks from any customer at the specified stores. The court declined to dismiss the action for failure to state a claim, stating:
To state a cause of action in a § 1981 action like the one presently before the court, a plaintiff must show: (1) he or she is a member of a racial minority; (2) the defendant intended to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities protected by the statute.
* * * *
All individual plaintiffs are African American and thus satisfy prong one of the prima facie case. Defendant's primary argument concerns prong two. Defendant argues that Plaintiffs cannot show intentional discrimination, and at most allege facts sufficient to show only disproportionate impact. . . . The court disagrees. Plaintiffs allege that Defendant knew the racial composition of its stores, determined the race of customers most likely to patronize particular stores, and based on the race of the predominant clientele at those stores, African American, instituted the no-check policy. . . . Under the standard applicable to a motion to dismiss, Plaintiffs have alleged sufficient facts to support a claim of intentional discrimination.
Id. at 734.
With respect to the third prong, the court in Buchanan found that the complaint adequately alleged that the defendants' discriminatory policies adversely affected the basic terms and conditions of the plaintiffs' contracts to purchase merchandise. Id. at 735.
This Court is in substantial agreement with the Buchanan court's analysis of the elements of a prima facie case under § 1981. See also Cody v. Union Elec., 518 F.2d 978, 978 (8th Cir. 1975), remanded and later reversed on other grounds (denying motion to dismiss Section 1981 claim that black business customers of defendant were required to pay greater security deposits than white customers solely on account of their race); Thomas v. Denny's, Inc., 111 F.3d 1506, 1509-10 (10th Cir. 1997) ; Mian v. Donaldson, Lufkin Jenrette Securities, Corp., 7 F.3d 1085, 1087 (2nd Cir. 1993). With respect to the first prong of the prima facie case, however, it must be noted that a plaintiff need not be a member of a racial minority as long as the plaintiff suffered intentional discrimination based on his or her own race, or based on his or her association with someone of a particular race. Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986) (white woman married to Iranian was entitled to invoke protections of § 1981 for alleged employment discrimination due to her marriage to someone considered nonwhite); Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1268 (6th Cir. 1977) (white plaintiff had standing to sue former employer for alleged retaliatory discharge due to plaintiff's protest of alleged discriminatory discharge of black co-worker); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2nd Cir. 1975) (white employee had standing under § 1981 for alleged discrimination in employment based on plaintiff's sale of house to black co-worker).
The Defendants in the instant case argue that (1) Bilello does not allege that he has suffered discrimination based on his own race or due to his association with any member of a protected class; (2) Bilello does not allege that the Defendants have engaged in intentional racial discrimination; and (3) Bilello's claim is insubstantial and frivolous because Bilello has not alleged that any discrimination concerned one or more of the activities enumerated within § 1981.
The First Amended Complaint alleges no facts from which the Court can infer that Bilello has any standing to bring a claim under § 1981, or that the Defendants engaged in any intentional racial discrimination. The First Amended Complaint is silent with respect to Bilello's own race. Although Bilello alleges that he provides appliance repair services in some homes within the neighborhood of the stores at issue, and that the neighborhoods are "racially mixed," he does not allege that he has suffered discrimination due to his own race or due to his association with persons of any particular race. The First Amended Complaint simply alleges that the Defendants have denied Bilello the use of restroom facilities despite his purchase of goods and that the Defendants have engaged in "[w]illful violation of 42 U.S.C. § 1981." These allegations are insufficient for the Court to infer that Bilello has standing to bring a claim under § 1981, or to infer that the Defendants engaged in intentional racial discrimination.
In support of his theory that the use of restroom facilities is a "benefit" or "privilege" of the contract for purchase of goods, under § 1981, Bilello refers to a municipal ordinance, Omaha Code § 49-492, attached to his original Complaint, which provides: "Any business which invites the public to shop or purchase, or that provides services, shall provide toilet rooms for both sexes. . . . The business shall make the toilet rooms available to their customers." (Emphasis added.) The ordinance does not make the use of restrooms a benefit or privilege of the contract for the purchase of goods. Under the ordinance, no contract or purchase is required. If someone enters the business premises merely "to shop," that person is to be provided use of restroom facilities under the ordinance, as a customer of the business. This Court finds, therefore, that Bilello has not alleged that he was denied any benefit or privilege of a contractual relationship, and, therefore, he has not alleged any discrimination with respect to one or more of the activities enumerated within § 1981.
The Court concludes that the First Amended Complaint does not contain allegations of fact sufficient to support any of the three prongs of a prima facie case under § 1981, and, therefore, the First Amended Complaint fails to state a claim upon which relief can be granted under § 1981.
Because it does not appear that the First Amended Complaint can be amended to state a claim upon which relief can be granted, it will be dismissed and judgment will be entered for the Defendants.
IT IS ORDERED:
The Defendants' Motion to Dismiss Cause of Action under 42 U.S.C. § 1981, Filing No. 28, is granted;
The First Amended Complaint is dismissed without prejudice;
Judgment for the Defendants will be entered by separate order.