Carter v. Dillard's Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

VENESSA CARTER CIVIL ACTION

VERSUS 24-510-SDD-SDJ

DILLARD’S INC. AND

HIGBEE LOUISIANA, LLC

RULING

Before the Court is defendants Dillard’s, Inc. and Higbee Louisiana, LLC’s,

(collectively, “Dillard’s” or “Defendants”), Motion to Dismiss.1 Plaintiff Venessa Carter,

(“Carter” or “Plaintiff”), opposes the motion and alternatively seeks leave to amend her

First Amended Complaint.2 Defendants have not filed a reply. The Court has reviewed the

allegations, the arguments of the parties, and the law, and is prepared to rule. For the

following reasons, Defendants motion is granted, and Plaintiff’s 42 U.S.C. § 1981 claim

is dismissed.3

I. BACKGROUND

A. Factual Allegations

Carter is an African American woman who frequently shops at the Dillard’s

Department Store in the Mall of Louisiana.4 On June 22, 2023, Carter went to Dillard’s

and purchased two pieces of luggage and two smaller items, (collectively, the “four

items”).5 During checkout, the Dillard’s cashier affixed yellow labels on the four items’

1 Rec. Doc. 12.

2 Rec. Doc. 16.

3 Rec. Doc. 2.

4 Id. at p. 1. See also id. at ¶ 11.

5 Id. at ¶ 21.

price tags and put the smaller items in a Dillard’s bag.6 She then placed this Dillard’s bag

in the large suitcase.7 The cashier also put the smaller piece of luggage on top of the

large suitcase and tied a Dillard’s bag around the large suitcase to signify proof of

purchase.8

After checkout, Carter left this Dillard’s store and walked over to the Dillard’s store

that houses the women’s department.9 There, a Dillard’s associate stopped Carter and

asked to verify Carter’s purchase of the luggage she was pulling around.10 She showed

the Dillard’s associate her receipt,11 and the Dillard’s associate walked away.12 Once

Carter finished shopping in the women’s department, she headed towards the exit to the

parking lot.13 There, she noticed the same Dillard’s associate who originally stopped her.14

Before leaving the store, Carter asked a different Dillard’s associate for the name of the

associate who originally stopped her.15 Carter alleges she “was confused as to why she

was being followed and/or profiled.”16 While shopping, “she witnessed Dillard’s

employees promptly greeting and serving white customers that entered the store and not

following them around or staring at them.”17

6 Id.

7 Id.

8 Id.

9 Id. at ¶ 22 (“Carter entered the Women’s Department from the mall . . . .”). See also Rec. Doc. 12-1, p. 2

n.6 (“There are two separate locations of Dillard’s at the Mall of Louisiana: a location that primarily houses

women’s clothing and accessories; and, a location that houses both menswear and accessories as well as

other goods, such as luggage.”).

10 Id. at ¶ 22.

11 Id.

12 Id. at ¶ 23.

13 Id. at ¶ 24.

14 Id.

15 Id.

16 Id. at ¶ 13.

17 Id. at ¶ 18 (cleaned up).

When Carter was in the parking lot, an East Baton Rouge Sheriff’s Deputy

approached her while she was placing the luggage in her car.18 The deputy asked to see

her receipt, and she promptly provided it.19 Carter showed the deputy the yellow labels

on her items’ price tags and the Dillard’s bag tied around the large suitcase as further

proof of purchase.20 She also advised the deputy that she had previously presented proof

of purchase when stopped by an associate.21

B. Procedural Background

Carter filed suit against Dillard’s, Inc. on June 21, 2024,22 and subsequently

amended her Complaint to add Higbee Louisiana, LLC (“Higbee”) as a defendant.23

Carter asserts the following causes of action against Defendants: (1) a 42 U.S.C. § 1981

claim for racial discriminatory interference with a contract;24 (2) defamation;25 (3)

intentional infliction of emotional distress;26 and (4) various Louisiana state law claims,

including “La. Civ. Code Ann. art. 2317 (acts of others); La. Civ. Code Ann. art. 2320 (acts

of servants); La. Civ. Code Ann. art. 2315 (liability for acts causing damages), La. Civ.

Code Ann. art. 2316 (negligence, imprudence or want of skill)[,] and false

imprisonment.”27 Dillard’s filed the present Motion to Dismiss Plaintiff’s 42 U.S.C. § 1981

18 Id. at ¶ 25.

19 Id.

20 Id. at ¶ 26.

21 Id.

22 Rec. Doc. 1.

23 Rec. Doc. 2. Carter alleges that Higbee is the owner of Dillard’s Department Store. Id.

24 Id. at ¶¶ 46–57.

25 Id. at ¶¶ 58–63.

26 Id. at ¶¶ 64–67.

27 Id. at ¶¶ 68–70.

claim,28 which Plaintiff opposes.29 Incorporated in her opposition memorandum, Plaintiff

alternatively seeks leave to amend her First Amended Complaint.30

II. LAW AND ANALYSIS

A. Rule 12(b)(6) Standard

When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”31 The Court

may consider “the complaint, its proper attachments, documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice.”32 “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state

a claim to relief that is plausible on its face.’”33

In Bell Atlantic Corp. v. Twombly, the United States Supreme Court set forth the

basic criteria necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss:

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the elements of

a cause of action will not do.”34 A complaint is also insufficient if it merely “tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’”35 However, “[a] claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

28 Rec. Doc. 12.

29 Rec. Doc. 16.

30 Id.

31 In re Katrina Canal Breaches Litig., 495 F. 3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co.

v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

32 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (internal citations omitted).

33 In re Katrina Canal Breaches Litig., 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007)).

34 Twombly, 550 U.S. at 545 (internal citations and brackets omitted).

35 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

reasonable inference that the defendant is liable for the misconduct alleged.”36 In order

to satisfy the plausibility standard, the plaintiff must show “more than a sheer possibility

that a defendant has acted unlawfully.”37 “Furthermore, while the court must accept well-

pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.’”38 On a

motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as

a factual allegation.”39

B. Plaintiff’s 42 U.S.C. § 1981 Claim

Plaintiff alleges that Defendants “intentionally modified Plaintiff’s terms of a

contract with Dillard’s because of her race by profiling and following Carter as she

shopped” in violation of 42 U.S.C. § 1981.40 Pursuant to 42 U.S.C. § 1981, all persons

within the jurisdiction of the United States have the same rights, regardless of race, to

enter into and enforce contracts, including the “making, performance, modification, and

termination of contracts, and the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship.”41 “[A] plaintiff bears the burden of persuading

the court that [he/she] has established a prima facie showing of race discrimination.”42 To

establish a prima facie case under 42 U.S.C. § 1981, a plaintiff must show that “(1) he or

she is a member of a racial minority; (2) the defendant had an intent to discriminate on

the basis of race; and (3) the discrimination concerned one or more of the activities

36 Id.

37 Id.

38 Taha v. William Marsh Rice Univ., No. 11-2060, 2012 WL 1576099, at *2 (S.D. Tex. May 3, 2012) (quoting

Southland Sec. Corp. v. Inspire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir. 2004)).

39 Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

40 Rec. Doc. 2, ¶¶ 48, 50 (cleaned up).

41 42 U.S.C. § 1981(a)-(b).

42 Monteverde v. New Orleans Fire Dept., 124 F. App’x 900 (5th Cir. 2005) (citing Rubinstein v. Adm’rs of

Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000)).

enumerated in the statute[.]”43 Plaintiff alleges she is a member of a racial minority and

thus satisfies the first prong of the 42 U.S.C. § 1981 analysis.44 The Court moves to the

remaining prongs.

1. Intent to Discriminate Based on Race

Plaintiff alleges that “Dillard’s treated similarly situated white customers at the Mall

of Louisiana differently” than her45 and that “Dillard’s would not, and does not, treat its

white customers in the same manner.”46 Moreover, “[d]uring the time that Carter was in

the store, she witnessed Dillard’s employees promptly greeting[] and serving white

customers that entered[,]” and these employees did not follow white customers around or

stare at them.47 Contrary to Plaintiff’s argument in her opposition memorandum,48 these

conclusory and generalized allegations are insufficient to state a claim of discriminatory

intent under 42 U.S.C. § 1981.

As the Fifth Circuit has explained:

Although “naked allegation[s]” of discriminatory intent are too conclusory

to survive a motion to dismiss, see Albert v. Carovano, 851 F.2d 561, 572

(2d Cir. 1988) (en banc), discriminatory motive may be—and commonly

is—demonstrated by circumstantial evidence, Bellows, 118 F.3d at 274.

An allegation that similarly situated non-minorities received better

treatment “could create the necessary inference and set the predicate for

establishing the section 1981 claim.” See Crosby v. Kilgore, 9 F.3d 104,

1993 WL 481800, at *1 (5th Cir. 1993) (unpublished); cf. Lindsay v. Yates,

498 F.3d 434, 439–40 (6th Cir. 2007) (holding that plaintiffs-purchasers

pleaded a § 1981 claim by alleging that (1) sellers advertised their house

for sale; (2) plaintiffs signed a purchase agreement and made deposit;

and (3) sellers terminated the contract three weeks after signing

agreement and one day after agent learned buyers were black).49

43 Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997).

44 See Rec. Doc. 2, p. 1.

45 Id. at ¶ 51.

46 Id. at ¶ 48.

47 Id. at ¶ 18.

48 Rec. Doc. 16, pp. 8–10.

49 Body by Cook, Inc. v. State Farm Mutual Automobile Ins., 869 F.3d 381, 387 (5th Cir. 2017).

Borrowing from Title VII jurisprudence,50 to show that a similarly situated non-minority

was treated differently and that the difference in treatment is a pretext for discrimination,

the conduct at issue must be “nearly identical.”51 Courts within the Fifth Circuit define

“similarly situated” narrowly.52

For example, when presented with the generalized allegation that non-minority

customers at a bank were not denied bank services or treated in the same manner as a

minority customer, this Court in Pullins v. Hancock Whitney Bank held the following:

While it is true that “[a]n allegation that similarly situated non-minorities

received better treatment ‘could create the necessary inference and set the

predicate for establishing the section 1981 claim,’” Plaintiff has not alleged

that the non-minorities were similarly situated. Simply being in the bank as

a customer and not having an altercation with bank employees does not

properly allege that these non-minorities were similarly situated. Rather, an

allegation that non-minority customers sought the same services – being

provided new account funds prior to the requisite 24-hour delay – and

received different treatment/results would allow an inference of race

discrimination. Plaintiff makes no allegations regarding the nature of the

services sought by the allegedly similarly situated non-minority customers;

thus, there are no factual allegations to support Plaintiff's claim that her race

motivated the alleged interference with her contractual rights.53

Like in Pullins, Dillard’s alleged treatment of non-minority customers is not “nearly

identical” to what Carter alleges happened to her on June 22, 2023. Though Plaintiff may

rely on circumstantial evidence to establish Defendants’ discriminatory motive,54

conclusory allegations such as white customers simply being in Dillard’s and not having

50 The elements of a racial discrimination claim are the same, whether the claim is asserted under Section

1981 or Title VII. Franklin v. City of Slidell, 936 F. Supp. 2d 691, 705 (E.D. La. 2013) (citing Riley v. School

Bd. Union Parish, 379 F. App’x 335, 339 (citing Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 316 (5th

Cir. 2004)); Lockett v. Wal–Mart Stores, Inc., 337 F. Supp. 2d 887, 891 (5th Cir.2004)).

51 Moore v. Angus Chem. Co., No. 07-415, 2008 WL 4491592, at *5 (W.D. La. Oct. 1, 2008) (citations

omitted).

52 See Horton v. G4S Secure Solutions (USA), Inc., No. 16-544, 2018 WL 1997535, at *5 (M.D. La. Apr.

27, 2018) (citing Brown v. Bd. of Trustees Sealy Indep. Sch. Dist., 871 F. Supp. 2d 581, 593 (S.D. Tex.

2012); see also Lopez v. Kempthorne, 684 F. Supp. 2d 827, 856–57 (S.D. Tex. 2010)).

53 512 F. Supp. 3d 647, 659–60 (M.D. La. 2021).

54 Id.

been stared at or followed will not suffice—nor will general allegations that Dillard’s

treated white customers differently. By failing to allege “nearly identical” conduct, Plaintiff

presents no facts to support the contention that Dillard’s treated similarly situated non-

minorities differently and that this difference in treatment was a pretext for discrimination.

In turn, she cannot establish the intent to discriminate requirement to make a prima facie

showing under 42 U.S.C. § 1981.

2. Discrimination Concerned the Making and Enforcing of a

Contract

Plaintiff also fails to state a claim under the third prong of the 42 U.S.C. § 1981

analysis. To prove that discrimination concerned the making and enforcing of a contract,

“[a] conclusory allegation that the right to make and enforce contracts has been violated

is insufficient. Instead, a plaintiff must (1) ‘identify the content of the contract at issue,’ (2)

identify ‘the particular contractual rights’ that were allegedly modified by the defendant's

actions, and (3) plead facts showing that the defendant's actions were motivated by

discriminatory intent.”55

In Morris v. Dillard Department Stores, Inc.,56 the Fifth Circuit first addressed this

prong of the 42 U.S.C. § 1981 analysis in the retail context. There, the court explained

that “a plaintiff must establish the loss of an actual, not speculative or prospective,

contract interest.”57 “An allegation of ‘the mere possibility that a retail merchant would

interfere with a customer’s right to contract in the future’ is insufficient to support recovery

55 Landor v. Society of the Roman Catholic Church of the Diocese of Lafayette, No. 13-2759, 2014 WL

4639519, *3 (W.D. La. Sept. 15, 2014) (quoting Vouchides v. Houston Community College System, No.

10-2559, 2011 WL 4592057, *8 (S.D. Tex. Sept. 30, 2011) (citing Grambling Univ. Nat. Alumni Ass’n v.

Bd. of Supervisors for La. Sys., 286 F. App’x 864, 870 (5th Cir. 2008); cf. Domino's Pizza, Inc. v.

McDonald, 546 U.S. 470, 476 (2006), 546 U.S. at 476 (“Any claim brought under § 1981, therefore, must

initially identify an impaired “contractual relationship, § 1981(b), under which the plaintiff has rights.”))).

56 277 F.3d 743 (5th Cir. 2001).

57 Id. at 751.

under § 1981.”58 “Instead, the plaintiff ‘must offer evidence of some tangible attempt to

contract’ that in some way was ‘thwarted’ by the defendant.”59 The Fifth Circuit expanded

on this analysis in Arguello v. Conoco, Inc.60 In discussing different contractual

relationships and their effects on a 42 U.S.C. § 1981 claim, the court explained that “[i]n

the retail context, . . . there is no continuing contractual relationship. Instead, the

relationship is based on a single discrete transaction—the purchase of goods.”61

Both parties rely on Morris and Arguello to support their positions.62 In particular,

Plaintiff argues that Arguello stands for the proposition that “‘subsequent attempts to gain

entry into the store’ to buy something would be ‘evidence of some tangible attempt to

contract with Dillard’s.[’]”63 The Court finds that Plaintiff misinterprets Arguello and

ignores its clear language. Again, “there is no continuing contractual relationship”

between a merchant and retail purchaser, and this contractual relationship hinges on “a

single discrete transaction,” that being the purchase of goods.64 Plaintiff makes no

allegation that she attempted to purchase goods following the June 22, 2023 incident or

that Dillard’s denied her the ability to make further purchases. Instead, Plaintiff’s

allegations suggest that she entered into a contract with Dillard’s, and this contractual

relationship ceased upon her successful purchase of the four items.

Assuming Plaintiff’s allegations are true, as the Court must to do on a Motion to

Dismiss, Carter has failed to allege facts showing that Dillard’s “thwarted” her tangible

attempt to contract. She no longer had a contractual relationship with Dillard’s after the

58 Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003) (quoting Morris, 277 F.3d at 752).

59 Id. (quoting Morris, 277 F.3d at 752).

60 Arguello, 330 F.3d 355.

61 Id. at 360.

62 Rec. Doc. 12-1, pp. 6–7; Rec. Doc. 16, pp. 6–8.

63 Rec. Doc. 16, p.6 (citing Arguello, 330 F.3d at 359).

64 Arguello, 330 F.3d 360.

successful purchase of the four items, and there are no allegations that she made a

subsequent attempt to contract. As such, Plaintiff failed to allege “the loss of an actual,

not speculative or prospective, contract interest”65 and cannot make a prima facie

showing under 42 U.S.C. § 1981. Because Plaintiff has filed to properly allege facts to

satisfy her prima facie burden, Defendants’ Motion to Dismiss will be granted.

C. Leave to Amend

Considering the deficiencies described above, the Court will grant Plaintiff’s

request for leave to amend. The Federal Rules of Civil Procedure provide that “[t]he court

should freely give leave when justice so requires.”66 Moreover, “courts should ordinarily

grant a plaintiff at least one opportunity to amend before dismissing a complaint with

prejudice for failure to state a claim.”67 Nevertheless, Plaintiff is cautioned that any

amendments must comport with this Court’s Ruling, and Plaintiff does not have leave to

add new parties or claims; she may only amend to cure the deficiencies set forth herein

with respect to her 42 U.S.C. § 1981 claim, if possible.68

III. CONCLUSION

For the foregoing reasons, the Motion to Dismiss69 filed by Defendants Dillard’s,

Inc. and Higbee Louisiana, LLC is GRANTED, and Plaintiff Venessa Carter’s 42 U.S.C.

§ 1981 claim is hereby DISMISSED WITHOUT PREJUDICE. Plaintiff’s Motion for Leave

to Amend her First Amended Complaint70 is GRANTED, and Plaintiff has twenty-one (21)

65 Morris, 277 F.3d at 751.

66 Fed. R. Civ. P. 15(a)(2).

67 Matthews v. Stolier, No. 13-6638, 2014 WL 5214738, at *12 (E.D. La. Oct. 14, 2014) (citing Hart v. Bayer

Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000)).

68 If Plaintiff wishes to amend more broadly, she must file a motion under the applicable Federal Rules of

Civil Procedure.

69 Rec. Doc. 12.

70 Rec. Doc. 16.

days from the date of this Ruling to cure the above-mentioned deficiencies in her 42

U.S.C. § 1981 claim, if possible.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this _12_t_h day of _____M_a_r_c_h______, 2025.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA