CARTER v. BENTLEY MOTORS INC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SAMANTHA CARTER

1:19-cv-18035-NLH-JS

Plaintiff,

OPINION

v.

BENTLEY MOTORS INC. and F.C.

KERBECK BENTLEY

Defendants.

APPEARANCES:

SAMANTHA CARTER

1001 S MAIN ST.

SUITE 49

KALISPELL, MT 59901

Plaintiff Pro se.

GREGORY EDWARD REID

SILLS CUMMIS & GROSS PC

ONE RIVERFRONT PLAZA

NEWARK, NJ 07102

Attorney for Defendant Bentley Motors Inc.

MELISSA JENNIFER BROWN

MARKS O'NEILL O'BRIEN DOHERTY & KELLY, P.C.

CHERRY TREE CORPORATE CENTER

535 ROUTE 38 EAST

SUITE 501

CHERRY HILL, NJ 08002

Attorney for Defendant F.C. Kerbeck Bentley.

HILLMAN, District Judge

This matter comes before the Court by way of Defendants’

motions to dismiss. Pro Se Plaintiff Samantha Carter filed a

complaint on September 16, 2019, alleging she experienced racial

discrimination in the course of attempting to purchase a

vehicle. For the reasons stated below, the Court will grant

Defendant Bentley Motors Inc.’s (“Bentley Motors”) motion to

dismiss and grant in part and deny in part F.C. Kerbeck

Bentley’s (“F.C. Kerbeck”) motion to dismiss. The Court will

grant Plaintiff leave to amend her complaint.

BACKGROUND

Plaintiff Samantha Carter is a woman of color1 and former

Bentley salesperson. According to Plaintiff, as a former

Bentley salesperson she had witnessed discrimination against

people of color inquiring about purchasing Bentleys, but did not

expect to be the subject of discrimination herself when she

later sought to purchase a Bentley. Plaintiff has alleged that

she visited F.C. Kerbeck, a dealership located in Palmyra, New

Jersey, on January 15, 2019 with intentions of purchasing a

vehicle. Plaintiff alleges she had previously made an

1 Plaintiff identifies herself in the Complaint as a “cognac

truffled-skinned toned young woman.” ECF No. 1, ¶ 9. Plaintiff

later refers in subsequent briefing to discrimination against

and comments about “black/brown” persons and “black women.” In

subsequent briefs, Plaintiff states that she has “never

identified herself as African anything” but rather stated that

“she was colored” and that “a woman of color does not signify

that she is African.” ECF No. 16, ¶ 9. Defendants contest

whether this is sufficient to establish that Plaintiff is a

member of a racial minority. As set forth below, while

Plaintiff could be more forthcoming in identifying her racial

background, the Court finds the Complaint alleges enough facts

to support an allegation that she is a member of a protected

class.

unsuccessful attempt to purchase a Bentley from a different

Bentley dealership named Bentley O’Gara.2

Plaintiff alleges she was greeted by an F.C. Kerbeck

salesperson named Brian McKnight.3 Plaintiff alleges that she

was told she could not test drive a vehicle without paying for

it first. According to Plaintiff, after questioning the

salesperson and hearing from another F.C. Kerbeck employee that

there was no policy preventing her from test driving a car, she

was able to test drive an Aston Martin.

Plaintiff alleges that she then gave F.C. Kerbeck a

$100,000 deposit for a Bentley, using her phone to wire the

money to the dealership. Plaintiff claims that while she was

given information to wire her money, she was not provided an

order form or other documentation to complete a purchase. At

this time, Plaintiff alleges that the salesperson stated that he

would send her a receipt and a list of Bentley Bentaygas

available for purchase. The salesperson also informed Plaintiff

that the dealership would be closing in the near future.

2 Plaintiff has also alleged that she was denied service at a

Bentley dealership in South Africa. ECF No. 16, ¶ 36.

3 Plaintiff does not specify in all instances whether the

salesperson she was communicating with was McKnight. Where

Plaintiff identifies the person she spoke with by name, this

Opinion will use the provided name. In cases where Plaintiff

has not identified the F.C. Kerbeck or Bentley Motors employees

she interacted with, this opinion will use “salesperson” or

“representative.”

Plaintiff alleges that she informed the salesperson that she is

“a floater” and was not sure where she would register the car

and was considering putting the vehicle in her trust or holding

companies. ECF No. 1, ¶ 13.

Plaintiff alleges that she had not received a receipt or

list of available vehicles by January 20, 2019. According to

Plaintiff, the dealership began ignoring her. Plaintiff alleges

that she contacted the dealership by email, phone, and in person

over ten times about her deposit. At one point, Plaintiff was

told to pick up her check from the dealership. When Plaintiff

arrived at the dealership on February 12, 2019, Plaintiff

alleges that the dealership informed her that they did not have

a check for her.

Plaintiff alleges that McKnight informed her by email that

he would mail her a check on February 20, 2019. Plaintiff was

allegedly told later that the check would not be mailed to her

and she would have to travel to F.C. Kerbeck to retrieve it.

Plaintiff states that she informed the dealership that she would

not return to the dealership because she had already made this

trip once before.

Plaintiff then alleges that she contacted Bentley of North

America Customer Service,4 and spoke with two representatives

4 Plaintiff refers to Bentley of North America Customer Service

and Bentley Motors Inc. interchangeably.

named Brian and John. Plaintiff contends that she pleaded for

her money back. According to Plaintiff, John informed her that

“as far as Bentley is concerned she could be a drug dealer and

that Bentley did not want her money on/around January 5, 2019

when Plaintiff was mistreated at another dealer, Bentley

O’Gara.” ECF No. 1, ¶ 23. Plaintiff also asserts that John

informed her that Bentley Motors had been informed of the

Plaintiff’s race “based on information given to them by Bentley

dealerships.” ECF No. 16, ¶ 13.

Plaintiff further alleges that Defendants5 informed her that

they believed her to be suspicious because she arrived at F.C.

Kerbeck in New Jersey in a Porsche with Montana license plates

and attempted to pay for a Bentley in cash. Plaintiff further

asserts that dealership employees stated that “young black women

cannot afford to pay cash for Bentley vehicles unless they are

involved in illegal activity or married to a White man.” ECF

No. 1, ¶ 29. Plaintiff states that employees at F.C. Kerbeck

asked her where her money came from and how she could afford to

purchase a Bentley.6

5 It is not clear from Plaintiff’s complaint which of the

Defendants she alleges made this statement to her. Bentley

Motors has addressed Plaintiff’s allegations of discrimination

regarding her customer service calls.

6 Plaintiff’s complaint does not include a date when this line of

questioning occurred.

Plaintiff alleges she also spoke with Joseph Innaurato, who

Plaintiff claims is a general manager and agent for one of the

Defendants. Plaintiff alleges that Innaurato communicated to

her that F.C. Kerbeck would neither sell her a car nor return

her money. Plaintiff alleges that in March 2019, Bentley Motors

“hung up the phone in Plaintiff’s face with no returned phone

calls or interference to aide in the matter after she informed

them her money had been taken.” Plaintiff states she realized

that after she contacted other Bentley dealerships and received

poor customer service, she realized that she had been

blacklisted from purchasing a Bentley.

Plaintiff asserts that on March 20, 2019 she sent a notice

to file suit against F.C. Kerbeck. Plaintiff alleges her money

was returned to her on March 20, 2019.

Plaintiff filed a complaint on September 16, 2019

containing two counts: (1) violations of the Civil Rights Act,

42 U.S.C. § 1981; and (2) violations of the Equal Credit

Opportunity Act (“ECOA”), 15 U.S.C. § 1691 and 12 U.S.C. § 1551.

Plaintiff’s complaint seeks damages, actual and compensatory,

and punitive damages for anguish, injury to reputation, and loss

of enjoyment of life. Plaintiff also seeks injunctive relief to

protect her from any harassment, intimidation or defamation, as

well as legal fees.

Defendant F.C. Kerbeck filed a motion to dismiss on October

23, 2019. Defendant Bentley Motors filed a motion to dismiss on

December 2, 2019. This matter has been fully briefed and is

ripe for adjudication.

DISCUSSION

A. Subject Matter Jurisdiction

This Court has original federal question jurisdiction over

this case under 28 U.S.C. § 1331. Plaintiff has alleged

violations of 42 U.S.C. § 1981 and 15 U.S.C. § 1691.

B. Standard for a Motion to Dismiss Pursuant to Fed. R. Civ.

P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides that a

court may dismiss a complaint for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In

considering a motion under Federal Rule of Civil Procedure

12(b)(6), a court must accept all well-pleaded allegations in

the complaint as true and view them in the light most favorable

to the pleader. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.

2005); see also Philips v. Cnty. Of Allegheny, 515 F.3d 224, 228

(3d Cir. 2008) (“[I]n deciding a motion under Fed. R. Civ. P.

12(b)(6), [a district court is] . . . required to accept as true

all factual allegations in the complaint and draw all inferences

from the facts alleged in the light most favorable to” the

plaintiff). A pleading is sufficient if it contains a “short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

When weighing a motion to dismiss, the Court does not ask

“whether a plaintiff will ultimately prevail, but whether the

claimant is entitled to offer evidence to support the

claims[.]’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 n. 8

(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));

see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions.’”) (citations omitted).

In applying the Twombly/Iqbal standard, a district court

will first “accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusion.” Fowler v. UPMC

Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal,

556 U.S. at 678). Next, the Court will “determine whether the

facts alleged in the complaint are sufficient to show that the

plaintiff has a ‘plausible claim for relief.’” Id. at 211

(citing Iqbal, 556 U.S. at 679).

To meet this standard, a “complaint must do more than

allege the plaintiff’s entitlement to relief.” Id.; see also

Philips, 515 F.3d at 234 (“The Supreme Court's Twombly

formulation of the pleading standard can be summed up thus:

‘stating . . . a claim requires a complaint with enough factual

matter (taken as true) to suggest’ the required element. This

‘does not impose a probability requirement at the pleading

stage,’ but instead ‘simply calls for enough facts to raise a

reasonable expectation that discovery will reveal evidence of’

the necessary element.”) (citing Twombly, 550 U.S at 556). The

party moving to dismiss under 12(b)(6) “bears the burden of

showing that no claim has been presented.” Hedges, v. United

States, 404 F.3d 744, 750 (3d Cir. 2005).

C. Analysis

Noting that Plaintiff is proceeding pro se, the Court

recognizes that pro se complaints must be construed liberally,

and all reasonable latitude must be afforded to the pro se

litigant. Estelle v. Gamble, 429 U.S. 97, 107 (1976). However,

pro se litigants “must still plead the essential elements of

[their] claim and [are] not excused from conforming to the

standard rules of civil procedure.” McNeil v. United States,

508 U.S. 106, 113 (1993) (“[W]e have never suggested that

procedural rules in ordinary civil litigation should be

interpreted so as to excuse mistakes by those who proceed

without counsel.”); Sykes v. Blockbuster Video, 205 F. App’x

961, 963 (3d Cir. 2006) (finding that pro se plaintiffs are

expected to comply with the Federal Rules of Civil Procedure).

1. Plaintiff’s 1981 Claim

a. Against F.C. Kerbeck

Section 1981 forbids all racial discrimination in the

making of private as well as public contracts. Saint Francis

College v. Al-Khazraji, 481 U.S. 604, 609 (1987). To state a

claim under Section 1981, a plaintiff must allege (1) plaintiff

is a member of a racial minority; (2) intent to discriminate on

the basis of race by the defendant; (3) discrimination

concerning one or more of the activities enumerated in Section

1981, which includes the right to make and enforce contracts.

Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001).

Section 1981 defines the term “make and enforce contracts”

to include “the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits,

privileges, terms and conditions of the contractual

relationship.” Rivers v. Roadway Express, 511 U.S. 298, 301

(1994). Typically, Section 1981 claims involve making and

enforcing employment contracts. Singh v. Wal-Mart Stores Inc.,

No. 98-1613, 1999 U.S. Dist. LEXIS 8531, at * 14 (E.D. Pa. June

9, 1999) (citing Morris v. Office Max, Inc., 89 F.3d 411, 413

(7th Cir. 1996)). Though less common in litigation, Section

1981 also applies to retail transactions. Id.

F.C. Kerbeck argues that Plaintiff fails to plead a

cognizable claim under 42 U.S.C. § 1981 because she fails to

allege how any of F.C. Kerbeck’s actions violated a specifically

enumerated right found in the statute. F.C. Kerbeck alleges

that Plaintiff has not stated a claim because she does not

allege that she was denied admittance into the dealership or

denied service. F.C. Kerbeck highlights that Plaintiff was

permitted to test drive a car and leave a deposit as evidence

that F.C. Kerbeck did not interfere with Plaintiff’s right to

enter into or enforce a contract. Therefore, F.C. Kerbeck

alleges that Plaintiff does not claim that F.C. Kerbeck refused

to contract with her, but rather that she was dissatisfied with

the customer service F.C. Kerbeck provided. F.C. Kerbeck also

questions whether Plaintiff has adequately alleged that she is a

racial minority through her description of her skin tone.

Lastly, F.C. Kerbeck argues that Plaintiff fails to allege that

she was damaged.

The Court finds that Plaintiff has stated a claim under

Section 1981. Though Plaintiff’s description of her status as a

racial minority could be more clearly stated, the Court finds

that Plaintiff has established this element of her Section 1981

claim. Based on the history of Section 1981, the Supreme Court

concluded that “Congress intended to protect from discrimination

identifiable classes of persons who are subjected to intentional

discrimination solely because of their ancestry or ethic

characteristics.” Al-Khazraji, 481 U.S. at 614 (stating that

discrimination on the basis of ancestry or ethnic

characteristics is racial discrimination “whether or not it

would be classified as racial in terms of modern scientific

theory”). At this stage, Plaintiff has sufficiently plead that

she belongs to an identifiable class of persons who are

subjected to intentional discrimination solely because of their

ancestry or ethnic characteristics - in this case, the color of

her skin.

Next, the Court finds that Plaintiff has adequately pleaded

that F.C. Kerbeck had the intent to discriminate on the basis of

race. In her complaint, Plaintiff has included several

discriminatory comments made by F.C. Kerbeck employees regarding

her race, potential involvement in illegal activity, and ability

to pay for a vehicle.

Lastly, the Court finds that Plaintiff has alleged

discrimination concerning an enumerated activity in Section

1981. By bringing a claim of discrimination in attempting a

retail purchase, Plaintiff has presented a less common, but

nonetheless valid, claim under Section 1981. Though Plaintiff

alleges that she was permitted to enter the F.C. Kerbeck

dealership in January 2019, she alleges that F.C. Kerbeck took

her money as a deposit, failed to send her a list of available

vehicles, and then retained her deposit for two months, despite

her requests to have it returned. While F.C. Kerbeck may try to

frame Plaintiff’s complaint as merely a customer service

dispute, Plaintiff has alleged that an employee of either

Bentley Motors or F.C. Kerbeck informed her that F.C. Kerbeck

would neither sell her a car nor return her money. The Court

finds that these allegations are sufficient to demonstrate

discrimination concerning Plaintiff’s right to make and enforce

a contract to purchase a vehicle.

The Court also notes that F.C. Kerbeck’s argument that

Plaintiff has failed to state she was damaged is not applicable

to this claim. Section 1981 allows for nominal damages in the

absence of proof of a compensable injury. See Gunby v.

Pennsylvania Elec. Co., 840 F.2d 1108, 1121 (3d Cir. 1988)

(citing Erebia v. Chrysler Plastic Products Corp., 772 F.2d

1250, 1259 (6th Cir. 1985) with approval); see also Lopez v.

S.B. Thomas, Inc., 831 F.2d 1184, 1190 (2d Cir. 1987)

(recognizing that a court need not address the sufficiency of

proof for damages because a plaintiff “may be entitled to

nominal damages upon proof of a violation of a constitutional

right”) (citing Erebia, 772 F.2d at 1259).

The Court will deny F.C. Kerbeck’s motion to dismiss with

respect to this claim.

b. Against Bentley Motors

Like F.C. Kerbeck, Bentley Motors asserts that Plaintiff

has failed to state a claim under Section 1981. Bentley Motors

also questions whether Plaintiff has adequately pleaded that she

is a member of a racial minority. Furthermore, Bentley Motors

asserts that Plaintiff has not shown that Bentley Motors

intentionally discriminated against Plaintiff nor that Bentley

Motors engaged in discrimination that prevented Plaintiff from

entering into a contract or engaging in activity protected by

the statute. Bentley Motors asserts that Plaintiff does not

allege that it was involved in the incident at F.C. Kerbeck, and

at most Plaintiff has alleged that Bentley Motors failed to

intervene on her behalf.

The Court agrees that Plaintiff has failed to state a claim

under Section 1981 with respect to Bentley Motors. As stated

above, Plaintiff has made a sufficient, though perhaps

confusing, pleading regarding her status as a racial minority.

However, Plaintiff has not alleged any facts that show that

Bentley Motors had the intent to discriminate on the basis of

race. Though Plaintiff alleges that the Bentley Motors

employees she spoke with admitted they were aware of her race,

the allegations support a plausible claim they wanted nothing to

do with her because they thought she could be not a drug dealer

not because of her skin color. The factual allegations

regarding the Bentley Motors employees comments are simply too

vague and lacking in substance to make out a claim for racial

discrimination.

Furthermore, Plaintiff has also not shown that Bentley

Motors discriminated against her concerning an enumerated

activity under Section 1981. Plaintiff has not pleaded that she

unsuccessfully attempted to enter into a contract to purchase a

vehicle with Bentley Motors directly. Instead, Plaintiff

alleges that Bentley Motors has interfered with her right to

make or enforce a contract by not intervening on her behalf

after she sought the return of her deposit from F.C. Kerbeck.

However, Plaintiff has not pleaded that Bentley Motors had the

power or the right or the power to take such actions. While

Plaintiff has pleaded that Bentley Motors is a parent company of

F.C. Kerbeck, no further allegations support a claim that

Bentley Motors should be held liable for the actions of F.C.

Kerbeck employees.

The Court will grant Bentley Motors’s motion to dismiss

with respect to this claim.

2. Plaintiff’s ECOA Claim

In her complaint, Plaintiff cites to both 15 U.S.C. § 1691

and 12 U.S.C. § 1551 as her second count against Defendants.7

7 The Court notes that 12 U.S.C. § 1551 was repealed. In its

motion to dismiss, F.C. Kerbeck states that it appears Plaintiff

“intended to cite 12 U.S.C. § 5531” as the “language contained

in count two of the Complaint . . . is identical to the language

in the section Kerbeck assumes Carter intended to cite.” ECF

No. 8-2 at 14. The Court will dismiss this part of Plaintiff’s

claim without prejudice.

Under the ECOA, a creditor may not discriminate against any

applicant of the basis of race. 15 U.S.C. § 1691(a). To state

a claim under the ECOA, a plaintiff must show that (1) she was a

member of a protected class; (2) she applied for credit from the

defendants; (3) she was qualified for the credit; and (4)

despite qualification, she was denied credit. Anderson v.

Wachovia Mortg. Corp., 621 F.3d 268 n. 5 (3d Cir 2010) (citation

omitted).

Accepting the facts alleged in the complaint as true,

Plaintiff has not alleged a cognizable claim under the ECOA.

Plaintiff has not alleged that she is an “applicant” as defined

by 15 U.S.C. § 1691(a)(b). Plaintiff has not alleged that F.C.

Kerbeck or Bentley Motors is a “creditor” as defined by 15

U.S.C. § 1691(a)(e). Plaintiff has not shown that she applied

for credit from F.C. Kerbeck or Bentley Motors.8 Similarly,

Plaintiff has not pleaded any facts that show that she was

qualified for such credit. Lastly, Plaintiff has not pleaded

that she was denied credit by F.C. Kerbeck or Bentley Motors.

The Court will grant both F.C. Kerbeck’s motion and Bentley

Motors’s motion to dismiss with respect to this claim.

8 Plaintiff states she was “not applying for credit per se,” but

maintains that F.C. Kerbeck used her deposit as “an interest

free loan.” ECF No. 16, ¶ 4. The Court finds that this

allegation is not a cognizable claim under the ECOA.

3. Plaintiff’s New Jersey Consumer Fraud Act Claim

In her response to Defendants’ motions to dismiss,

Plaintiff raises for the first time a claim under the New Jersey

Consumer Fraud Act (“NJCFA”). ECF No. 16, at ¶¶ 30-41.

Plaintiff also accuses Defendants of having a “hidden policy

against women of color” who they “do not really want driving

Bentleys.” Id. at ¶ 25. Plaintiff alleges that this

constitutes fraud because Defendants were willing to accept her

money as a deposit, but never had any intention of selling her a

vehicle.

This Court has previously held that “[i]t is axiomatic that

the complaint may not be amended by the briefs in opposition to

a motion to dismiss.” Mills v. Ethicon, Inc., 406 F.Supp.3d

363, 387 (D.N.J. 2019) (quoting Frederico v. Home Depot, 507

F.3d 188, 202 (3d Cir. 2007)) (internal quotations and citation

omitted); see also Carpenters Health 86 Welfare Fund of Phila. &

Vicinity v. Mgmt. Res. Sys., 837 F.3d 378, 383 (3d Cir. 2016)

(stating that a party may not amend a complaint in a brief

opposing a motion to dismiss).

The Court will grant F.C. Kerbeck’s and Bentley Motors’s

motions to dismiss as it relates to Plaintiff’s claim under the

New Jersey Consumer Fraud Act.

4. Leave to Amend

As stated above, Plaintiff’s elaboration of her claims

against F.C. Kerbeck and Bentley Motors in her opposition brief

have no effect on the sufficiency of her complaint as currently

pleaded. However, the content of Plaintiff’s opposition brief

does impact the Court’s obligation under Third Circuit precedent

to offer amendment when determining whether to dismiss a civil

rights complaint for failure to state a claim. See Fletcher–

Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,

251 (3d Cir. 2007) (directing that in “civil rights cases

district courts must offer amendment” when determining whether

to dismiss a civil rights complaint for failure to state a

claim, “irrespective of whether it is requested” unless “doing

so would be inequitable or futile”). Moreover, amendments to

pleadings are governed by Federal Civil Procedure Rule 15, which

provides that the Court “should freely give leave when justice

so requires.” Fed. R. Civ. P. 15(a)(2).

The Court will grant Plaintiff leave to amend her

complaint. Plaintiff is reminded that ordinarily pleadings may

not be supplemented by letter, briefs, or other submissions.

Any proposed amended complaint must contain all of Plaintiff's

factual allegations and legal claims in one short and plain

statement. Fed.R.Civ.P. 8(a).

CONCLUSION

For the reasons stated above, the Court will grant in part

and deny in part F.C. Kerbeck Bentley’s motion to dismiss. The

Court will grant Bentley Motors motion to dismiss. Plaintiff’s

complaint is dismissed without prejudice and with leave to

amend.

An appropriate Order will be entered.

Date: September 25, 20202 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.