Lecia Shorter v. S. Cal. Buick Pontiac Gmc ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LECIA L. SHORTER, No. 18-56255
Plaintiff-Appellant, D.C. No.
2:16-cv-07181-DMG-FFM
v.
SOUTHERN CALIFORNIA BUICK MEMORANDUM*
PONTIAC GMC DEALERS, INC.;
MARTIN CADILLAC COMPANY, INC.,
DBA Martin Automotive Group;
FLASHPOINT COMMUNICATIONS LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted November 19, 2019**
Before: FARRIS, O'SCANNLAIN, and TROTT, Circuit Judges.
Lecia Shorter appeals from the district court’s grant of summary judgment
and dismissal of her claims that the defendants violated her right “to make and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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enforce contracts,” 42 U.S.C. § 1981, when she was not permitted to participate in
a test-drive promotion because she did not have proof of insurance. We have
jurisdiction under 28 U.S.C. § 1291. The facts of this case are known to the
parties, and we do not repeat them here.
I
Shorter claims that the district court errantly granted summary judgment to
Martin Automotive Group because this court’s decision in Nat’l Ass’n of African
Am.-Owned Media v. Charter Communications, Inc. (NAAAOM), 915 F.3d 617(9th Cir. 2019), lowers the threshold for a prima facie § 1981 case.
Shorter’s appeal is premised on a misunderstanding of the district court’s
ruling. The district court concluded that Shorter, who is African-American, likely
satisfied all the elements of a prima facie case. Where Shorter’s case failed was at
a later stage in the § 1981 burden-shifting framework in which the burden shifts
back to Shorter. Specifically, once Martin produced evidence that it had a
legitimate and nondiscriminatory basis for prohibiting the test drive, the burden
shifted back to Shorter to show that Martin’s explanation was pretextual. The
district court correctly concluded that Shorter’s only evidence of pretext—her
subjective impressions of the attitudes of certain Martin’s employees (two of
whom are themselves African-American)—is not sufficient to meet such a burden.
See Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1148 (9th Cir. 2006).
2
NAAAOM does not alter this final stage in our § 1981 burden-shifting framework.
See NAAAOM, 915 F.3d at 622–28.
II
Shorter also claims that the district court erred by dismissing her § 1981
claims against Southern California Buick Pontiac GMC Dealers, Inc. (“Dealers
Group”) and against Flash Point Communications, LLC. Again she stakes much of
her argument on a misunderstanding of NAAAOM.
Dismissal of a § 1981 claim is proper when a plaintiff either fails to state a
prima facie case or “when defendant’s [nondiscriminatory] explanation is so
convincing that plaintiff’s explanation is implausible.” NAAAOM, 915 F.3d at 627.
The district court correctly dismissed the claims against the Dealers Group and
against Flash Point because Shorter failed to state a prima facie case. Specifically,
Shorter fails to plead specific facts from which discriminatory intent can be
plausibly inferred. See id. at 626. Shorter’s allegations against the Dealers Group,
which sponsored the promotion, are conclusory and are belied by its efforts to help
Shorter participate in the promotion. The allegations against Flash Point, which
administered the test-drive web promotion, are even more implausible—Flash
Point had no way of knowing Shorter’s race.
Shorter further claims the motions to dismiss were untimely because the
defendants failed to comply with Local Rule 7-3’s meet and confer requirements.
3
The district court did not abuse its discretion by not denying the motions to dismiss
on the basis of an alleged violation of Local Rule 7-3. Indeed, it gave multiple
compelling reasons for considering the motions.
Shorter finally tries to salvage her claim against the Dealers Group by
alleging that there is no “separation of identity” between Martin and the Dealers
Group or that they and Flash Point are in a “hub and spoke conspiracy” in violation
of 42 U.S.C. § 1985. Assuming such new claims were not forfeited, they are
nevertheless baseless. Martin is but one member of the Dealers Group, which is a
mutual benefit corporation for dealers around the region. Martin and the Dealers
Group are therefore separate entities. See Mesler v. Bragg Mgmt. Co., 702 P.2d
601, 606 (Cal. 1985). Shorter’s § 1985 theory fails for the same reason as her §
1981 claims: each requires that the plaintiff plausibly allege the conspirators’
“discriminatory animus,” which Shorter has not done. Sprewell v. Golden State
Warriors, 266 F.3d 979, 989 (9th Cir. 2001).
Finally, the district court did not abuse its discretion by denying leave to
amend the operative Fourth Amended Complaint based on futility.1 Such a
1
Flash Point moves for judicial notice of four records from Shorter’s state court
proceedings against these defendants because such records directly relate to the
question of whether further amendment would be futile. The motion for judicial
notice is GRANTED.
4
rationale is permissible, see Cervantes v. Countrywide Home Loans, Inc., 656 F.3d
1034, 1041 (9th Cir. 2011), and its application in this case is more than reasonable.
AFFIRMED.
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