Melvin v. U.S.A. Today et al, No. 3:2014cv00439 - Document 41 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 01/20/2015. Copy mailed to Pro Se Plaintiff. (jsmi, )
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Melvin v. U.S.A. Today et al Doc. 41 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION PAMELA MELVIN, Plaintiff, v. Civil Action No. 3:14– CV– 0 0 439 U.S.A. TODAY, et al., Defendant. MEMORAN D U M OPIN ION THIS MATTER is before the Court on: (1) Newspaper Defendants’ 12(b)(6) Motion to Dism iss For Failure to State a Claim filed by USA Today , The W ashington Post, Detroit Free Press, N ew ark Star-Ledger, Philadelphia Inquirer and Dallas Morning N ew s, Inc. (“the newspaper defendants”), ECF No. 6; (2) Defendant Sun-Tim es Media, LLC’s Motion to Dism iss Plaintiff’s Com plaint Pursuant to Federal Rule of Civil Procedure 12(b)(2),1 ECF No. 15, and Defendant Sun-Tim es Media, LLC’s Motion to Dism iss Plaintiff’s Com plaint Pursuant to Federal Rule of Civil Procedure 12(b)(6), ECF No. 17, filed by Sun-Tim es Media, LLC, d/ b/ a Chicago Sun-Tim es 2 (“Sun-Tim es”); and (3) Defendant Boston Globe Media Partners, LLC’s Motion to Dism iss Com plaint filed by The Boston Globe (“the Globe”), ECF No. 28. Because it is related to the instant m atter, the Court will also address Plaintiff’s Motion for Partial Am endm ent of the Com plaint (“Motion to Am end”) filed by Plaintiff Pam ela Melvin (“Melvin”). ECF No. 34. Sun- 1 Defendant Sun-Tim es Media, LLC, d/ b/ a Chicago Sun-Tim es, filed a Motion to Dism iss Plaintiff’s Com plaint Pursuant to Federal Rule of Civil Procedure 12(b)(2) concurrently with its Motion to Dism iss Plaintiff’s Com plaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF Nos. 1518. 2 Plaintiff Pam ela Melvin (“Melvin”) actually nam ed “Chicago Sun-Tim es” as one of eleven newspaper defendants, which is a d/ b/ a of Sun-Tim es Media, LLC, an Illinois lim ited liability com pany and publisher of the Chicago Sun-Tim es newspaper. Dockets.Justia.com Tim es as well as the newspaper defendants together with the Globe 3 oppose Melvin’s Motion to Am end. ECF Nos. 35, 36. I. FACTU AL AN D PROCED U RAL BACKGROU N D On J une 19, 20 14, Melvin filed a 173-page, 60 0 -paragraph Com plaint against eleven newspapers across the country alleging violations of her constitutional and civil rights under 42 U.S.C. § 198 1 and the First Am endm ent. See Com plaint (“Com pl.”). She also alleged violations under various articles of the Universal Declaration of Hum an Rights. Com pl. ¶ 333. On Septem ber 3, 20 14, six of the eleven defendants, the newspaper defendants, m oved to dism iss Melvin’s Com plaint. On Septem ber 8, 20 14, Sun-Tim es separately m oved to dism iss the Com plaint pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. ECF Nos. 15, 17. On Septem ber 16, 20 14, the Globe m oved to dism iss the Com plaint. ECF No. 28. On October 21, 20 14, after this Court granted Melvin an extension of tim e, see ECF No. 33, to respond to the aforem entioned m otions to dism iss, Melvin filed a two-page Motion to Am end, in which she seeks “to am end only the federal statute upon which [Melvin’s] action was filed.” Pl.’s Mot. to Am end at 1. Specifically, she stated as follows: m oves to am end the statute 42 U.S.C. § 1981 (a) by replacing it with the “Civil Rights Act of 1964.” Plaintiff replaces statute 42 U.S.C. § 1981 (a) with the Civil Rights Act of 1964 on all pages after page 159 and in the First Claim for Relief of the Com plaint. Id. at 1-2. In her Motion to Am end, Melvin “respectfully m oves the Court to file a partial Am endm ent to the Com plaint as a m atter of course under Rule 15[(a)](1)(B).” Id. at 1. Thus, she argued that she had a right to am end her Com plaint as of the date that she filed her Motion to Am end. On October 31, 20 14, the newspaper defendants, with the Globe joining, filed an opposition to Melvin’s Motion to Am end, requesting that this Court deny Melvin’s Motion to Am end because the am endm ent would be futile. See Newspaper Defendants’ Opposition to 3 Instead of filing a separate opposition to Plaintiff’s Motion for Partial Am endm ent of the Com plaint (“Motion”) The Boston Globe (“the Globe”) joined the opposition filed USA Today , The W ashington Post, Detroit Free Press, N ew ark Star-Ledger, Philadelphia Inquirer, and Dallas Morning New s (“the newspaper defendants”) “to avoid unnecessary repetition.” See Newspaper Defendants’ Opposition to Plaintiff’s Motion for Partial Am endm ent of the Com plaint (“Defs.’ Opp’n”) at 1. 2 Plaintiff’s Motion for Partial Am endm ent of the Com plaint (“Newspaper Defs.’ Opp’n”) at 2. Likewise, Sun-Tim es filed its opposition to the Motion to Am end on Novem ber 4, 20 14, agreeing with the newspaper defendants’ argum ent that the am endm ent would be futile and requesting that this Court deny the Motion to Am end and enter an Order dism issing with prejudice all of Melvin’s claim s against Sun-Tim es. Defendant Sun-Tim es Media, LLC’s Opposition to Plaintiff’s Motion for Partial Am endm ent of the Com plaint (“Sun-Tim es’ Opp’n”) at 1, 3-4. Because this m atter is before the Court on the a m ultitude of m otions to dism iss filed by the Globe, Sun-Tim es, and the newspaper defendants, the following facts are drawn from Melvin’s Com plaint and are construed in the light m ost favorable to her. Melvin alleges violations of her constitutional and civil rights under 42 U.S.C. § 1981, the First Am endm ent, and various articles of the Universal Declaration of Hum an Rights 4 . In general, Melvin has been m istreated 5 by a variety of individuals and entities, including the United States Departm ent of Veterans’ Affairs (“VA”), various judges, and other governm ent officials. See generally Com pl. ¶¶ 1-575. Her life is “in grave danger” as a result of crim inal and racially discrim inatory conduct on the part of the VA and the failure of any United States court of official to protect her. See e.g., id. ¶¶1-3. As a result, she is in “dire need of m edical treatm ent” because she has “suffered devastating harm ” from being deprived of treatm ent. Id. ¶13. Additionally, Melvin states, without m uch explanation, that attorneys for the VA have created a “one-way Internet system ” at her apartm ent, through which they control her com puters and printers. Id. ¶ 3 n.1. As a consequence, Melvin blam es the governm ent—since they control her com puter and printer—for any errors in her Com plaint and adds that she “is safe nowhere as there is no injury, harm , atrocity or act of terrorism that the VA attorneys and others cannot inflict upon her.” Id. 4 In part, Melvin’s Com plaint is based on various articles of the Universal Declaration of H um an Rights. See e.g., ¶ 335. The Court will not address allegations related to violations of the Universal Declaration of Hum an Rights because they are based on clearly nonbinding law and are thus frivolous. 5 More specifically, Melvin reports that the eleven defendants have not reported on her m any adm inistrative and civil actions against the United States Departm ent of Veterans’ Affairs and others for allegedly taking control of her com puter, spying on her, leaving feces at her house, abusing the court system , and engaging in other types of harassm ent. See e.g., Com pl. ¶¶ 332-33. 3 Melvin’s claim s are predicated on the eleven defendants’ failure to report Melvin’s adm inistrative proceedings and civil actions against the federal governm ent. Id. ¶¶18-19, 576, 591-92, 594-95, 597, 60 0 . More specifically, the eleven defendants have published articles about other high-profile “civil cases that were filed by white citizens against the Federal Governm ent, its agencies and its officials,”6 id. ¶ 576, but they have not reported on Melvin’s civil actions because she is African-Am erican, id. ¶¶ 588-594. According to Melvin, “[b]y publishing the court cases filed by white citizens against the federal governm ent and refusing and failing to publish the court cases filed by th e Black Plaintiff against the federal governm ent, [the Globe, Sun-Tim es, and the newspaper defendants] intentionally discrim inated against Plaintiff because of her race in violation of 42 U.S.C. § 1981(a).” Id. ¶¶ 597, 594-60 0 . The Com plaint seeks a m andatory injunction against all defendants to “publish [] the court cases that Plaintiff filed in the federal courts against the federal governm ent, its officials, and its agencies, as the . . . [defendants] published the court cases that white citizens filed.” Id. at 172-73. The Com plaint also seeks dam ages in excess of $ 150 ,0 0 0 against The W ashington Post and U.S.A. Today but not against the other newspaper defendants, the Globe, or SunTim es. II. LEGAL STAN D ARD A. Am ending a Com plaint Rule 15(a)(1) of the Federal Rules of Civil Procedure allows a party to am end its com plaint as a m atter of course within twenty-one (21) days of serving the com plaint, or within 21 days after service of a m otion to dism iss. Fed. R. Civ. P. 15(a)(1). In all other cases, a party m ay am end its com plaint “only with the other party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The Federal Rules instruct courts to “freely give leave when justice so 6 Melvin com plains that the defendants have not reported on lawsuits that she has filed (citing docket num bers 1:12-CV-150 1 and 5:0 9-CV-235), but have reported on litigation involving Valerie Plam e, Paula J ones, and form er Veterans Affairs Secretary Eric Shinseki. Com plaint (“Com pl.”) ¶¶ 598, 594. 4 requires.” Id. However, “[a] district court m ay deny a m otion to am end when the am endm en t would be prejudicial to the opposing party, the m oving party has acted in bad faith, or the am endm ent would be futile.” Equal Rights Ctr. V. N iles Bolton Assocs., 60 2 F,3d 597, 60 3 (4th Cir. 20 10 ). B. Motion to Dism iss Under Federal Rule of Civil Procedure 12(b)(6), a party m ay m ove to dism iss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) m otion to dism iss, the court m ust accept the plaintiff’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. See E.I. du Pont de Nem ours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 20 11). But “the tenet that a court m ust accept as true all of the allegations contained in a com plaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). On a m otion to dism iss, the court’s task is lim ited to determ ining whether the com plaint states “plausible claim s for relief.” Id. at 679. A com plaint m ust sufficiently contain factual allegations in addition to legal conclusions. Although Rule 8(a)(2) requires only a “short and plain statem ent of the claim showing that the pleader is entitled to relief,” “a form ulaic recitation of the elem ents of a cause of action will not do.” Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7). The “com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Tw om bly , 550 U.S. at 570 ). “Facts pled that are ‘m erely consistent with’ liability are not sufficient.” A Soc’y W ithout a N am e v. Virginia, 655 F.3d 342, 346 (4th Cir. 20 11) (quoting Iqbal, 556 U.S. at 678). Thus, to survive a m otion to dism iss under Rule 12(b)(6), Melvin’s Com plaint m ust contain “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal 556 U.S. at 678 (quoting Tw om bly , 550 U.S. at 570 ). Indeed, “Pro se com plaints are to be read liberally, but § 1951(d) does not dem and that we conclude ‘[plaintiff] had alleged that he was appealing a crim inal conviction returned on the planet Saturn,’ before 5 such a com plaint would warrant dism issal sua sponte as frivolous.”). W hite v. W hite, 886 F.2d 721, 724 (4th Cir. 1989)(citation om itted). III. D ISCU SSION A. Parties’ Argum ents a. The Globe The sole relief that Melvin seeks against the Globe is as follows: [A]n injunctive order requiring all eleven Newspaper Defendants to provide Plaintiff the full and equal benefit of the law, the First Am endm ent right of freedom of the Press, for the security of Plaintiff's person and property by publishing the court cases that Plaintiff filed in the federal courts against the federal governm ent, its officials, and its agencies, as the Newspapers Defendants published the court cases that white citizens filed in the federal courts against the federal governm ent, its officials, and its agencies . . . Com pl. ¶ 5. The Globe argues: (1) the injunctive relief that Melvin seeks would violate the First Am endm ent and (2) Melvin’s Com plaint fails to state a claim under 42 U.S.C. § 1981. Defendan t Boston Globe Media Partners, LLC’s Mem orandum of law in Support of Motion to Dism iss Com plaint (“Globe’s Mem .”) at 3-4. First, concerning the form er bases, the Globe argues that the conduct alleged by Melvin lies at the heart of editorial discretion protected by the First Am endm ent, which leaves to private citizens, not the governm ent or litigants, the power to decide whether to speak on any particular subject. Id. at 4. The Globe cites to Miam i Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974) to support its argum ent. In Miam i Herald, the United States Suprem e Court considered whether a statute requiring newspapers to grant candidates a right to equal space to reply to criticism and attacks on their records violated the guarantees of a free press. Id. at 241. The court in Miam i Herald struck down the Florida right-to-reply statute as an unconstitutional intrusion upon the editorial function of newspaper, even though the statute, by requiring that a candidate for election to office have access to a m onopoly news outlet to reply to charges against him , was designed to ensure a m ore fully inform ed electorate. Id. at 245, 258 . The Globe cites to the 6 court’s reasoning that the exercise of editorial judgm ent is a protected First Am endm ent activity: A newspaper is m ore than a passive receptacle or conduit for news, com m ent, and advertising. The choice of material to go into a newspaper, and the decisions m ade as to lim itations on the size and content of the paper, and the treatm ent of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgm ent. It has yet to be dem onstrated how governm ental regulation of this crucial process can be exercised consistent with First Am endm ent guarantees of a free press as they have evolved to this tim e. Globe’s Mem . at 3 (quoting Miam i Herald, 418 U.S. at 248 ). The Globe argues that the Fourth Circuit has applied the court’s reasoning in Miam i Herald to reach the conclusion that a plaintiff cannot com pel a newspaper to provide “equal access” to those “disagreeing with its editorial positions” without running afoul of the constitutional guarantee of the freedom of the press.” Id. at 4 (quoting Kania v. Fordham , 70 2 F.2d 475, 477 n.5 (4th Cir. 1983)). Therefore, the Globe argues, these constitutional principles are fatal to Melvin’s claim s against it. Second, the Globe argues that because Melvin’s Com plaint fails to allege that any past, present, or future contractual relationship (or any relationship of any kind) was allegedly im paired by the Globe, her Com plaint fails to state a claim under § 1981 and should be dism issed accordingly. Id. at 5. b. Sun-Tim es In her 173-page Com plaint, Melvin’s only allegation specific to Sun-Tim es is that “[t]he Chicago Sun-Tim es is an Am erican daily newspaper published and headquartered in Chicago, Illinois.” Com pl. ¶ 26. Sun-Tim es m oves the Court to dism iss the Com plaint pursuant to Rule 12(b)(2) and 12(b)(6). Regarding the 12(b)(2) bases, Sun-Tim es argues that there is no basis for this Court to exercise personal jurisdiction over Sun-Tim es, let alone award any relief to Melvin in law or equity. See Sun-Tim es’ Mem orandum of Law in Support of Defendant Sun-Tim es m edia, LLC’s Motion to Dism iss Plaintiff’s Com plaint Pursuant to Federal Rule of Civil Procedure 12(b)(2) 7 (“Sun-Tim es 12(b)(2) Mem .”) at 2. Sun-Tim es states two argum ents in support of its 12(b)(2) m otions, nam ely that: (1) it has insufficient m inim um contacts with Virginia and (2) exercising jurisdiction over Sun-Tim es in Virginia fails to com port with the Due Process Clause of the Fourteenth Am endm ent—i.e., that the m aintenance of suit in the forum would not com port with traditional notions of fair play and substantial justice. Id. (citing Young v. New Haven Advocate, 315 F.3d 256, 264 (4th Cir. 20 0 2)). Sun-Tim es argues that: (1) Melvin is not a resident of Virginia; (2) Sun-Tim es does not have officers, em ployees, offices, equipm ent, telephone num bers, or property located within the Com m onwealth of Virginia; and (3) SunTim es does not intentionally target Virginia residents. See id. at 2 (citing Ex. 1 “Ebach Decl.” ¶ 5). Reportedly, Sun-Tim es argues, the Com plaint cites no facts to support either specific or general jurisdiction over the Sun-Tim es. Id. at 4. Rather, the Com plaint contains allegations to the contrary. For exam ple, Sun-Tim es argues, the Com plaint alleges that Melvin is “a North Carolina resident, see Com pl. ¶ 22, and that the Sun-Tim es is published and headquartered in Chicago, Illinois, id. ¶ 26.” Id. (internal quotations om itted). Furtherm ore, Sun-Tim es contends that “[t]here are no allegations that the Sun-Tim es regularly transacts or solicits business in Virginia contracts to supply services or goods in Virginia, owns real property in Virginia, m aintains Virginia offices, or has engaged in continuous or system atic activities in Virginia. Va. Code § 8.0 1-328.1.” Id. Further supporting that this Court has not personal jurisdiction over Sun-Tim es, Sun-Tim es reports that the Com plaint does not allege that it delivers copies of its newspaper to Virginia. Id. In fact, Sun-Tim es argues, the newspaper is focused alm ost exclusively on serving its local audience in Illinois, not residents of Virginia. Id. (citing Ex. 1 “Ebach Decl.” ¶ 6). Sun-Tim es argues that Melvin’s claim s do not stem from any activity that Sun-Tim es directed at this forum . To the contrary, Sun-Tim es argues, Melvin’s “claim s appear predicated upon the Sun-Tim es’s la ck of interest in Plaintiff’s activity within the forum .” Id. at 5 (em phasis in original); see also id. Ex. 1 “Ebach Decl.” ¶ 7. Moreover, Sun-Tim es underscores 8 that Melvin, who does not reside in Virginia, cannot allege that Sun-Tim es had prior dealings with her.7 Id. (citing Com pl. ¶ 22). Accordingly, Sun-Tim es argues, Melvin cannot satisfy the requirem ent that Sun-Tim es have sufficient m inim um contacts with the forum for the exercise of jurisdiction over it to satisfy constitutional due process. Concerning the 12(b)(6) ground, Sun-Tim es argues: (1) Melvin’s Com plaint lacks sufficient factual m atter with respect to Sun-Tim es; (2) Sun-Tim es is entitled, as a m atter of law, to unfettered editorial control of the content of its newspaper; and (3) Melvin does not possess a statutory, com m on law, or Constitutional right of access to the pages of its newspaper. See SunTim es’ Mem orandum of Law in Support of Defendant Sun-Tim es m edia, LLC’s Motion to Dism iss Plaintiff’s Com plaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Sun-Tim es 12(b)(6) Mem .”) at 3 (citing Miam i Herald, 418 U.S. at 258 (holding that the First Am endm ent’s guarantee of a free press m andates exercise of editorial judgm ent by newspapers and bars governm ent from requiring newspaper to print m aterial)). First, Sun-Tim es argues that the Com plaint fails to allege specific conduct—unlawful or otherwise—by Sun-Tim es. Sun-Tim es 12(b)(6) Mem . at 3. Sun-Tim es argues that Melvin is required to plead “factual content that allows the court to draw the reasonable inference that [Sun-Tim es] is liable for the m isconduct alleged.” Id. (citing Tw om bly , 550 U.S. at 560 (pleading antitrust conspiracy requires “m ore than m erely parallel behavior”)). Sun-Tim es contends that, although Melvin filed a 173-page pleading, she om itted virtually any operative allegations specific to Sun-Tim es and, instead, m erely grouped it with ten other defendants. To the contrary, Sun Tim e argues subm its that Melvin actually absolves all defendants of liability by 7 In its m oving papers, Sun-Tim es states, “The Com plaint alleges that Plaintiff m ailed docum ents regarding her civil cases to two other defendants, but not Sun-Tim es. Com pl. ¶¶ 588– 89. In any case, Sun-Tim es has no Virginia m ailing address, and the Court can take judicial notice that Sun-Tim es has no office in Virginia.” Sun-Tim es’ Mem orandum of Law in Support of Defendant Sun-Tim es m edia, LLC’s Motion to Dism iss Plaintiff’s Com plaint Pursuant to Federal Rule of Civil Procedure 12(b)(2) (“Sun-Tim es Mem .”) at 5 (citing Ex.1 “Ebach Decl.” ¶ 5; Business Entity Search, Com m onwealth of Virginia, State Corporation Com m ission, https:/ / sccefile.scc.virginia.gov/ Find/ Business (last visited Sept. 2, 20 14). 9 claim ing that “the VA and federal attorneys” actually are at fault because they “prohibited the Newspaper Defendants from publishing her civil court cases.” Id. (citing Com pl. ¶577). Second, Sun-Tim es argues that the First Am endm ent of the United States Constitution does not allow Melvin to com m andeer Sun-Tim es’ editorial decision-m aking and com pel it to write about her specific lawsuits. Because it is established law that “[t]he choice of m aterial to go into a newspaper, and the decisions m ade as to lim itations on the size and content of the paper, and treatm ent of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgm ent,” Miam i Herald, 418 U.S. at 258 , Sun-Tim es argues that the First Am endm ent guarantees Sun-Tim es the “absolute discretion to determ ine the contents of [its] newspaper[].” Id. at 4 (quoting Passaic Daily N ew s v. NLRB, 736 F.2d 1543, 1557 (D.C. Cir. 1984) (finding that the order “im perm issibly attem pts to com pel the [newspaper] to publish what it would prefer to withhold in violation of the First Am endm ent”). Accordingly, as a m atter of constitutional law, Sun-Tim es argues that it cannot be penalized for not publishing Melvin’s lawsuits. Id. at 4. The crux of Sun-Tim es’ argum ent is that “[c]overing som e lawsuits against the governm ent does not require the Sun-Tim es to cover all sim ilar lawsuits against the governm ent because ‘[a] newspaper is m ore than a passive receptacle or conduit for news, com m ent, and advertising.’” Id. at 4-5 (quoting Miam i Herald, 418 U.S. at 258). Sun-Tim es further argues that the First Am endm ent’s protection would extend to SunTim es even if, as Melvin suggests without any factual support, certain of the defendants decided (or were com pelled by the VA) not to report her lawsuits because of her race. Id. at 5 (citing Sny der v. Phelps, 131 S. Ct. 120 7, 1216 (20 11) (holding that hateful signs held by Westboro Baptist Church picketers at m ilitary funerals were entitled to First Am endm ent protection); Am persand Publ’g, LLC v. N LRB, 70 2 F.3d 51, 56 (D.C. Cir. 20 12) (finding that where enforcem ent of the National Labor Relations Act would interfere with a newspaper’s editorial discretion, “the statute m ust yield”). 10 Likewise, Sun-Tim es argues that 42 U.S.C. § 1981 does not provide Melvin any right to com pel it to report her lawsuits. See id. at 6. (citing Grosw irt v. Colum bus Dispatch, 238 F.3d 421 (6th Cir. 20 0 0 ) (unpublished) (affirm ing dism issal of § 1981 claim and concluding that “[b]ecause the Dispatch cannot be com pelled by a federal court to publish the plaintiffs’ letters and cannot be ordered to pay dam ages to the plaintiffs for the failure to publish their letters, the plaintiffs’ com plaint fails to state a claim for relief”); Johari v. Ohio State Lantern, 76 F.3d 379 (6th Cir. 1996) (unpublished) (affirm ing dism issal of § 1981 claim because “the First Am endm ent does not require a private publication to publish any inform ation by an outsider”); cf. Cook v. Advertiser Co., 458 F.2d 1119, 1122 (5th Cir. 1972) (affirm ing lower court’s dism issal of § 1981 claim based on First Am endm ent grounds, which outweighed African-Am erican plaintiff’s purported rights under § 1981, because plaintiff had no protected right of contract to have wedding announcem ent published in the newspaper). Finally, Sun-Tim es argues, Melvin’s “oblique references to ‘equal protection’ are m isplaced because the Sun-Tim es is not, and is not alleged to be, a state actor.” Id. at 6. Thus, under long-established First Am endm ent jurisprudence protecting the free press, Sun-Tim es argues that Melvin cannot state a claim in law or equity against Sun-Tim es with respect to its editorial decision s — or lack thereof — concerning Melvin’s litigation against the governm ent. Id. at 7. c. The Newspaper Defendants According to the newspaper defendants, Melvin’s Com plaint does not plausibly plead facts showing that: (1) any of the newspaper defendants engaged in intentional, purposeful race discrim ination or (2) that that their conduct interfered with a legitim ate contract right. Mem orandum in Support of Newspaper Defendants’ 12(b)(6) Motion to Dism iss For Failure to State a Claim (“Newspaper Defs.’ Mem .”) at 2-3. Upon aligning their argum ents with those presented by the Globe and Sun-Tim es, the newspaper defendants conclude that “in light of the [newspaper defendants’] First Am endm ent free speech right, it is clear that neither white 11 citizens nor non-white citizens have a contractual right to have m aterial published by a newspaper.” Id. at 6 (quoting Grosw irt, 238 F.3d at 422) (citation om itted). B. Analy sis Before turning to the m erits of defendants’ m otions to dism iss, the Court m ust first consider Melvin’s Motion to Am end. a. Melvin’s Am ended Com plaint Melvin’s Motion to Am end could be read to im ply or argue that Melvin had a right to am end her Com plaint as of the date that she filed her Motion to Am end. See Pl.’s Mot. to Am end at 1 (saying in two places that she “respectfully m oves the Court to file a partial Am endm ent to the Com plaint as a m atter of course under Rule 15[(a)](1)(B)) (em phasis added). Melvin filed her Motion to Am end on October 21, 20 14, which was over four m onths after serving her original com plaint and m ore than 21 days after (1) Septem ber 3, 20 14, the date that the newspaper defendants m oved to dism iss Melvin’s Com plaint; (2) Septem ber 8, 20 14, the date that Sun-Tim es m oved to dism iss Melvin’s Com plaint; and (3) Septem ber 16, 20 14, the date that the Globe m oved to dism iss Melvin’s Com plaint. Melvin did not seek leave of court to am end her Com plaint. She, likewise, has not gained defendants’ consent to her proposed am endm ent. Thus, she has not com plied with Rule 15(a)(2). Accordingly, Melvin’s Motion to Am end will be DENIED. ECF No. 34. b. Motions to Dism iss Because of the following analysis concerning the m ovants’ 12(b)(6) m otions to dism iss, Sun-Tim es’ m otion to dism iss pursuant to 12(b)(2) is m oot. Concerning the rem aining m otions to dism iss, even accepting as true all the factual allegations contained in Melvin’s Com plaint, as the Court m ust, and affording the “liberal construction” due to allegations in pro se com plaints raising civil rights issues, Brow n v. N.C. Dept. of Corr., 612 F.3d 720 , 722 (4th Cir. 20 10 ), Melvin’s Com plaint m ust be dism issed as a 12 m atter of law for failure to state a claim upon which relief m ay be granted against the Globe, Sun-Tim es, and the newspaper defendants. i. 42 U.S.C. § 1981 The United States Court of Appeals for the Fourth Circuit has held that “[s]ection 1981 guarantees all persons in the United States ‘the sam e right . . . to m ake and enforce contracts . . . as is enjoyed by white citizens.’” Haw thorne v. Virginia State Univ., No. 13-2237, 20 14 WL 161390 3, *1 (4th Cir. 20 14) (per curiam ) (citations om itted). “Section 1981 ‘can be violated only by purposeful discrim ination,’ and ‘m ust be founded on purposeful, racially discrim inatory actions.’” Id. (citations om itted). By its term s, § 1981 protects the equal right of “[a]ll persons within the jurisdiction of the United States” to “m ake and enforce contracts” without respect to race. 42 U.S.C. §1981(a). The statute defines “m ake and enforce contracts” to “includ[e] the m aking, perform ance, m odification, and term ination of contracts, and the enjoym ent of all benefits, privileges, term s, and conditions of the contractual relationship.” Id. § 1981(b). Therefore, “[t]o succeed on a claim under . . . § 1981 . . . [Melvin] m ust ultim ately establish both that the [the Globe, Sun-Tim es, and the newspaper defendants] . . . intended to discrim inate . . . and that the discrim ination interfered with a contractual interest or legitim ate property right.” Sew raz v. First Liberty Ins. Corp., Civil Action No. 3:10 -cv-120 , 20 12 WL 12438, *6 (E.D. Va. J an. 3, 20 13) (Spencer, J .) (quoting Hill v. John Foster Hom es, Inc., No. 3:10 – CV– 20 9, 20 10 WL 2696655, at *3 (E.D.Va. J uly 7, 20 10 )) (citations om itted). Indeed, “a plaintiff cannot state a claim under § 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes ‘to m ake and enforce.’” Id. (quoting Dom ino’s Pizza, Inc. v. McDonald, 546 U.S. 470 , 479-8 0 (20 0 6)). Melvin’s § 1981 claim fails on both prongs with respect to the Globe, Sun-Tim es, and the newspaper defendants. First, Melvin pleads no facts showing that the Globe, Sun-Tim es, and the newspaper defendants engaged in “purposeful discrim ination” that was “intended to discrim inate.” Her attem pt to satisfy this burden by alleging that the eleven defendants 13 published articles about cases filed by “white citizens” while “not publish[ing] a court case that was filed by the Black Plaintiff” falls far short because she fails to allege facts showing that any of their editorial decisions were m otivated by “purposeful discrim ination.”8 Here, Melvin fails to allege facts that “produce an inference of liability strong enough to nudge [her] claim s ‘across the line from conceivable to plausible.’” McCoy v. Teklu, Civil Action No. 3:11-cv-650 , 20 13 WL 3873662, *5 (E.D. Va. J uly 24, 20 13) (Spencer, J .). Second, Melvin fails to allege facts showing that the Globe, Sun-Tim es, or the newspaper defendants deprived her of any legitim ate contract or property right. Any claim brought under § 1981 m ust identify an im paired “contractual relationship” under which the plaintiff has rights. Dom ino’s Pizza, Inc., 546 U.S. at 476; see also Runy on v. McCrary , 427 US 160 , 168-69 (1976) (“It is now well established that § 1 of the Civil Rights Act of 1866, 14 Stat. 27, 42 U. S. C. § 1981, prohibits racial discrim ination in the m aking and enforcem ent of private contracts.”). Instead, Melvin m erely alleges that she has a right to have her civil actions published by the Globe, Sun-Tim es, and the newspaper defendants. See Com pl. at 164, Section XX (“The First Am endm ent And 42 U.S.C. § 1981 Provide Plaintiff The Right To Have Her Court Cases Published”). Melvin is incorrect because her Com plaint does not allege that any past, present, or future contractual relationship (or relationship of any kind) was im paired by the Globe, Sun-Tim es, or the newspaper defendants. Thus, in addition to failing to allege any facts showing intentional racial discrim ination, Melvin does not have a “right” to have the newspapers cover her civil actions. Without any such right, she has not alleged any facts showing the existence of a contract with the Globe, Sun-Tim es, or the newspaper defendants, which is fatal to her § 1981 claim . See, e.g., Hill v. John Foster Hom es, Inc., Civil Action 3:10 -cv-20 9, 20 10 WL 2696655, *4 (E.D. Va. J uly 7, 20 10 ) (Spencer, J .) (granting m otion to dism iss § 1981 claim because plaintiff “has not shown that he was deprived of any legitim ate contract or property right”). 8 To be clear, Melvin only alleges that the Globe’s, Sun-Tim es’, and the newspaper defendants’ decision not to report on her lawsuits is unlawful under § 1981—not that they have failed to report on any lawsuits involving African-Am erican plaintiffs against the federal governm ent. 14 ii. First Am endm ent J urisprudence The United States Suprem e Court has stated, “For better or worse, editing is what editors are for; and editing is selection and choice of m aterial.” Colum bia Broad. Sy stem , Inc. v. Dem ocratic N at’l Com m ., 412 U.S. 94, 124 (1973). “A newspaper is m ore than a passive receptacle or conduit for news, com m ent, and advertising.” Miam i Herald, 418 U.S. at 258. Though not directly articulated by the Fourth Circuit, m any courts have declined to com pel privately owned newspapers to publish certain inform ation or cover certain events at the request of a private individual. See e.g., N ovotny v. Tripp County , S.D., 664 F.3d 1173, 1177 (8th Cir. 20 11) (“an individual does not possess a constitutional right to require that a privately owned newspaper publish his letter to the editor. Indeed, a contrary rule would infringe upon the right of the newspaper itself to decide what content it includes on its own editorial page”); Cousino v. Now icki, 165 F.3d 26, 1998 WL 70 8 70 0 , *2 (6th Cir. Oct. 2, 1998) (“the First Am endm ent does not require a private publication or newspaper to publish any inform ation subm itted to it”) (citations om itted); N ew m an v. Associated Press, Inc., 112 F.3d 50 4, 1996 WL 59130 7, *1 (2d Cir. Oct. 15, 1996) (affirm ing dism issal of com plaint for failure to state a claim because plaintiff “does not have a constitutional guarantee that the defendant m ust listen to or publish her speech”). Furtherm ore, a plaintiff cannot com pel a newspaper to provide “equal access” to those “disagreeing with its editorial positions” without running afoul of the constitutional guarantee of the freedom of the press.” Kania v. Fordham , 70 2 F.2d 475, 477 n.5 (4th Cir. 1983). Exam ining the Com plaint, accepting the facts alleged in Melvin’s Com plaint as true for the purposes of Rule 12(b)(6), the Globe, for exam ple, failed to report on lawsuits Melvin filed against the VA for injuries she has suffered and elected to report on claim s brought by white wom en such as Valerie Plam e and Paula J ones and on litigation against form er-Secretary Shineski. Com pl. ¶¶ 598, 594; see also 590 -592 (asserting the sam e conduct by the rem aining defendants). Nevertheless, the conduct alleged by Melvin lies at the heart of editorial discretion protected by the First Am endm ent, which leaves to private citizens, not the governm ent or litigants, the 15 power to decide whether to speak on any particular subject. Therefore, under long-established First Am endm ent jurisprudence protecting the free press, Melvin cannot state a claim in law or equity against the Globe, Sun-Tim es, or the newspaper defendants with respect to its editorial decisions—or lack thereof—concerning Melvin’s litigation against the governm ent. IV. CON CLU SION For the aforem entioned reasons, the Court will: (1) DENY Plaintiff’s Motion for Partial Am endm ent of the Com plaint, ECF No. 34. (2) GRANT Newspaper Defendants’ 12(b)(6) Motion to Dism iss For Failure to State a Claim , ECF No. 6; (3) DENY AS MOOT Defendant Sun-Tim es Media, LLC’s Motion to Dism iss Plaintiff’s Com plaint Pursuant to Federal Rule of Civil Procedure 12(b)(2), ECF No. 15, (4) GRANT Defendant Sun-Tim es Media, LLC’s Motion to Dism iss Plaintiff’s Com plaint Pursuant to Federal Rule of Civil Procedure 12(b)(6), ECF No. 17, (5) GRANT Defendant Boston Globe Media Partners, LLC’s Motion to Dism iss, ECF No. 28. The Court further ORDERS that the Com plaint be DISMISSED WITH PREJ UDICE against the Globe, Sun-Tim es, and the newspaper defendants. Let the Clerk send a copy of this Order to all counsel of record and to Plaintiff. ______________________/s/_______________ James R. Spencer Senior U. S. District Judge It is SO ORDERED. ENTERED this _ 20 th_ _ _ day of J anuary 20 15. 16
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