“Congress has clearly delineated those entities that fall within Title II’s ambit, and [courts] are not at liberty to go beyond what it has plainly enacted.”
How later courts described this case
- “Congress has clearly delineated those entities that fall within Title II’s ambit, and [courts] are not at liberty to go beyond what it has plainly enacted.”
Written by the judges who cited it.
The opinion
United States District Court
for the
Southern District of Florida
Lovely Marius, Plaintiff, )
)
v. ) Civil Action No. 23-22064-Civ-Scola
)
Iberia Bank and others,
)
Defendants.
Order Granting Motion for Partial Dismissal
Lovely Marius, initially proceeding pro se, filed this lawsuit against
Defendant First Horizon Bank (the “Bank”), claiming she was racially
discriminated against.1 Specifically, Marius appears to allege she was
prevented from opening an account at a Bank branch in Aventura, Florida, and
that Lupe Rodriguez2 (a bank employee), urged her to instead “open her bank
account with banks for ‘[B]lack people.’” (2d Am. Compl., ECF No. 38 ¶ 12, 2.)
The Court previously granted First Horizon Bank’s motion to dismiss, in part,
and at the same time struck Marius’s complaint as a shotgun pleading. (Order,
ECF No. 32.) Marius has since filed a second amended complaint, now
represented by counsel, lodging three counts: one Civil Rights Act claim under
42 U.S.C. § 1981 (count one); and two state-law claims—one for racial
discrimination under Florida Statutes section 760.08 (count two); and one
common-law claim, for intentional infliction of emotional distress (count three).
(2d Am. Compl. ¶¶ 28–39.) The Bank now seeks to dismiss counts two and
three. (Def.’s Mot., ECF No. 39.) Marius has not responded and the time to do
so has passed. After review, the Court grants the Bank’s motion (ECF No. 39.)
1. Background3
At some point after April 2021, Marius walked into a Bank branch, in
Aventura, Florida, intending to open a business bank account. (2d Am. Compl.
1 Despite First Horizon Bank’s repeatedly advising Marius that it, and not First Horizon
Corporation (First Horizon Bank’s parent company) or Iberia Bank (which merged into First
Horizon Bank), is the proper defendant, Marius persists in referencing both entity names as
Defendants. Accordingly, the Court will deem any reference to First Horizon Corporation (or
First Horizon National Corp., as named by Marius) or Iberia Bank to mean First Horizon Bank.
2 Marius also names Rodriguez as a defendant, but the Court recently dismissed Rodriguez,
without prejudice, based on Marius’s failure to timely serve her. (Order, ECF No. 41.)
3 This background is based on the allegations in the second amended complaint. For purposes
of evaluating the Bank’s motion to dismiss for a failure to state a claim, the Court accepts the
complaint’s factual allegations as true and construes the allegations in the light most favorable
to Marius per Federal Rule of Civil Procedure 12(b)(6).
¶¶ 7–8.) The business account she sought was related to a non-profit Marius
had started, called Purple Vine Refuge Inc., the purpose of which was to
provide support to homeless people. (Id. ¶¶ 7–8.) Rodriguez, a bank employee,
approached Marius, offering to help her with opening the account. (Id. ¶ 9.)
Marius says she provided Rodriguez with “all confidential and sensitive
financial documents and personal information” for both herself and Purple
Vine, to open the account. (Id. ¶ 10.) But as Rodriguez began processing the
information, she told Marius, “in a loud voice,” that Aventura would never allow
a homeless shelter to be established in the city. (Id. ¶ 11) Marius says
Rodriguez then “made racially intimidating gestures and comments,” advising
Marius to go “open her bank account with banks for ‘[B]lack people.’” (Id. ¶ 12.)
Feeling “violated and intimidated,” as she describes it, Marius asked to speak
to the “Branch Manager.” (Id. ¶ 13–14.) After Rodriguez told her the Branch
Manager was unavailable, Marius left but came back later that day. (Id. ¶¶ 15–
17.) Upon her return, Marius again asked to speak with the Branch Manager
and also asked Rodriguez to return all the sensitive documentation Marius had
provided earlier. (Id. ¶¶ 17–19.) Rodriguez ripped off a portion of the
documents, handed Marius the ripped pages, but walked away and refused to
hand over the other documents. (Id. ¶ 20.) Thereafter, the Branch Supervisor—
Marius identifies her as Kathy—intervened and asked Rodriguez to return the
rest of Marius’s documents to her. (Id. ¶ 21.)
A few days later, on June 8, 2021, Marius filed a complaint about the
incident with the Consumer Financial Protection Bureau. (Id. ¶ 23.) It appears
the Bureau responded to that complaint, ten days later, on June 18, but took
no action against the Bank. (Id. ¶ 24.)
Sometime later, Marius was able to open an account with TD Bank
without any issue. (Id. ¶ 26.) She says she was damaged by the Bank’s
discrimination because it prevented her from receiving financial assistance and
donations to fulfill Purple Vine’s mission. (Id.)
2. Legal Standard
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all the complaint’s allegations as
true, construing them in the light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does
not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A plaintiff must articulate
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id.
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. Thus, a pleading that offers mere
“labels and conclusions” or “a formulaic recitation of the elements of a cause of
action” will not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8
marks a notable and generous departure from the hyper-technical, code-
pleading regime of a prior era, but it does not unlock the doors of discovery for
a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679.
3. Discussion
As an initial matter, the Court construes Marius’s failure to respond to
the Bank’s motion as a lack of opposition. See Local Rule 7.1(c)(1) (“Failure to
[timely respond to a motion] may be deemed sufficient cause for granting the
motion by default.”) Additionally, however, the Court has also reviewed the
substance of the Bank’s motion and finds it due to be granted on its merits, as
well.
First, Marius’s second count alleges racial discrimination under Part I of
the Florida Civil Rights Act. Under that Act, race-based discrimination is
prohibited within “any place of public accommodation.” Fla. Stat. § 760.08.
“Public accommodations,” in turn, are defined as “places of public
accommodation, lodgings, facilities principally engaged in selling food for
consumption on the premises, gasoline stations, places of exhibition or
entertainment, and other covered establishments.” Fla. Stat. § 760.02(11). The
Act then enumerates establishments which fit the definition:
(a) Any inn, hotel, motel, or other establishment which provides
lodging to transient guests, other than an establishment located
within a building which contains not more than four rooms for rent
or hire and which is actually occupied by the proprietor of such
establishment as his or her residence.
(b) Any restaurant, cafeteria, lunchroom, lunch counter, soda
fountain, or other facility principally engaged in selling food for
consumption on the premises, including, but not limited to, any
such facility located on the premises of any retail establishment, or
any gasoline station.
(c) Any motion picture theater, theater, concert hall, sports arena,
stadium, or other place of exhibition or entertainment.
(d) Any establishment which is physically located within the
premises of any establishment otherwise covered by this
subsection, or within the premises of which is physically located
any such covered establishment, and which holds itself out as
serving patrons of such covered establishment.
Fla. Stat. § 760.02(11)(a)–(d). The Bank posits that the Act’s definition of
“public accommodations” does not include a bank. In support, it points to the
cannon of construction expressio unius est exclusio alterius, under which the
Florida Supreme Court “has reasoned that the Legislature purposefully
excluded items not included in a list.” Okposio v. Barry U. (Main Campus), 252
So. 3d 1290, 1291 (Fla. 1st DCA 2018) (quoting Schoeff v. R.J. Reynolds
Tobacco Co., 232 So. 3d 294, 304 (Fla. 2017)). Because the Act does not
include a bank within the enumerated list of places of public accommodations,
the Bank reasons a bank does not fit the Act’s definition. And, without any
counterargument, the Court is hard-pressed disagree—especially where a bank
has very little, if anything, in common with any of the numerous types of
places and facilities included in the Act’s comprehensive list. Indeed, as the
Court noted in its prior order (ECF No. 32, 4), such a finding is consistent with
similar analyses evaluating the definition of a place of public accommodation
under the analogous Title II of the federal Civil Rights Act. See Hatcher v. Servis
First Bank, No. 2:16-CV-01362-RDP, 2016 WL 7336403, at *3 (N.D. Ala. Dec.
19, 2016) (cleaned up) (“Title II only prohibits discrimination on the basis of
race or color in ‘places of public accommodation,’ and banks are not included
in Title II’s comprehensive list of public accommodations.”); see also Akyar v.
TD Bank US Holding Co., No. 18-CV-379 (VSB), 2018 WL 4356734, at *5
(S.D.N.Y. Sept. 12, 2018) (“[T]he text of § 2000a does not explicitly include
banks and courts have expressly concluded that banks are not places of public
accommodation within the meaning of the provision.”) (citing 42 U.S.C. §
2000a(b)); Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 429 (4th Cir.
2006) (“Congress has clearly delineated those entities that fall within Title II’s
ambit, and [courts] are not at liberty to go beyond what it has plainly
enacted.”). Accordingly, because there is no showing that a bank qualifies as a
place of public accommodation, under the Act, the Court dismisses count two
from Marius’s complaint.
Next, the Bank argues that Marius has failed to allege facts satisfying the
elements for a claim of intentional infliction of emotional distress under Florida
law. The Court agrees.
“Under Florida law, to state a claim for intentional infliction of emotional
distress, the plaintiff must allege: “(1) deliberate or reckless infliction of mental
suffering; (2) outrageous conduct; (3) the conduct caused the emotional
distress; and (4) the distress was severe.” Holston v. Dawson, No. 22-11198,
2023 WL 7485227, at *7 (11th Cir. Nov. 13, 2023) (cleaned up). Under Florida
law, as to the second element, “the standard for outrageous conduct is
particularly high.” Plowright v. Miami Dade Cnty., 102 F.4th 1358, 1368 (11th
Cir. 2024) (cleaned up).
Here, Marius relies on Rodriguez’s conduct to support the outrageous-
conduct element of her intentional-infliction-of-emotional-distress claim. To
that end, Marius’s factual allegations include Rodriguez’s speaking to her “in a
loud voice”; “telling [Marius] that the City of Aventura would never allow a
homeless shelter to be opened in the city”; encouraging Marius to seek out a
bank “for [B]lack people”; initially refusing to return Marius’s documents to
her; and ripping up some of Marius’s documents. (2nd Am. Compl. ¶¶ 11, 12,
19, 20.) The Bank argues that these allegations are insufficient to support a
claim for intentional infliction of emotional distress. (Def.’s Mot. at 11.) The
Court concurs.
As the Bank points out, “Florida courts have been reluctant to find
claims for intentional infliction of emotional distress based solely on allegations
of verbal abuse.” (Id. (quoting Lopez v. Target Corp., 676 F.3d 1230, 1236 (11th
Cir. 2012).) Indeed, Florida courts have rejected intentional-infliction-of-
emotional-distress claims involving allegations describing far worse conduct
than that described by Marius. See Lopez, 676 F.3d at 1236 (citing cases, for
example, where a plaintiff alleged his supervisors called him “racially
derogatory terms” and imposed various workplace related indignities upon him,
Williams v. Worldwide Flight Servs. Inc., 877 So.2d 869 (Fla. 3d DCA 2004); and
where a court described “vicious verbal attacks that included the use of
humiliating language and racial epithets,” Lay v. Roux Labs., Inc., 379 So.2d
451, 452 (Fla. 1st DCA 1980)). So, even though the behavior Marius describes
could be construed as “extremely reprehensible, racially hostile misconduct,” it
nonetheless fails to satisfy Florida’s outrageousness requirement. Lopez, 676
F.3d at 1236; Wilcox v. La Pensee Condo. Assn., Inc., No. 21-81565-CV, 2022
WL 2205412, at *3 (S.D. Fla. June 17, 2022) (Middlebrooks, J.) (“Only in the
most extreme circumstances can words alone, even incredibly offensive ones,
be sufficiently outrageous.”). Accordingly, and without any counterargument
from Marius, the Court dismisses count three.
4. Conclusion
In sum, the Court grants the Bank’s motion (ECF No. 39) and dismisses
counts two and three from Marius’s complaint. The Bank must file its answer,
then, as to count one, under 42 U.S.C. § 1981, on or before February 24,
2025.
Done and ordered, in Miami, Florida, on February 14, 2025.
fs N. Scola, Jr.
United States District Judge