Shih v. The Broadway League

Background

Pim Shih, proceeding without a lawyer, sued The Broadway League. Shih alleged that the League rejected his Off-Broadway Pimcomedy Fashion Show because of his race and religion and harmed his career and emotional well-being. His complaint asserted nine counts involving racial and religious discrimination, breach of implied contract, intentional and negligent infliction of emotional distress, retaliation, defamation, and interference with a prospective economic advantage.

The League moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not allege enough facts to support a legally plausible claim. Magistrate Judge Robert W. Lehrburger recommended granting the motion. He recommended dismissing Counts I, II, IV, and VIII with prejudice and Counts III, V, VI, VII, and IX without prejudice, with leave to amend the latter five counts.

Court’s analysis

The court overruled Shih’s objections and adopted the report and recommendation in its entirety.

For the discrimination claims under Title II of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New Jersey Law Against Discrimination, the court held that Shih did not plead facts showing discriminatory intent. The complaint made conclusory statements that the League acted because of Shih’s race and religion but did not describe direct or indirect evidence, comments, actions, or similarly situated people treated more favorably. The court also held that the League was a membership organization, not a place of public accommodation covered by Title II. It noted that a letter from TodayTix cited low ticket sales and member demographics, but did not mention Shih’s race or religion, and TodayTix was not a defendant or alleged to be affiliated with the League.

The court rejected Shih’s argument that discovery should occur before dismissal. A motion to dismiss tests whether the complaint itself states a claim, and the lack of access to discovery does not excuse the failure to plead supporting facts.

The court also denied leave to amend the claims it considered incurable. It held that a public diversity, equity, and inclusion statement on the League’s website could not by itself create an implied contract because it did not show mutual agreement on definite terms. It further held that Shih’s retaliation claims could not proceed because he did not allege, and his allegations indicated, that the League was his employer. The court concluded that amendment of the Title II discrimination, implied-contract, and retaliation claims would be futile.

Disposition

The court dismissed the case under Rule 12(b)(6). The conclusion states: “Counts I, I, IV, and VIII are dismissed with prejudice; Counts III, V, VI, VII, and IX are dismissed without prejudice and with leave to amend.” The earlier discussion, the report and recommendation, and the court’s analysis identify the first group as Counts I, II, IV, and VIII. The repeated “I” in the conclusion therefore appears to be a typographical error, but the opinion itself does not expressly correct it.

Shih had 30 days from the date of the order to file an amended complaint covering the counts for which amendment was allowed. The order states that failing to amend on time, or failing to obtain an extension beforehand, would result in dismissal of all claims with prejudice and entry of judgment for the League.