Shih v. The Broadway League

Background

Pim Shih, proceeding without a lawyer, alleged that The Broadway League discriminated against him based on his racial and religious background and interfered with his prospective economic opportunities. Shih described himself as a Christian, Chinese American artist and designer who produced the Pimcomedy Fashion Show, an Off-Broadway show. He alleged that he contacted the League seeking assistance, information, or inclusion in programs supporting Chinese or Chinese American artists and addressing racial discrimination. He also alleged that the League rejected his requests for help or a relationship concerning his show.

Shih brought two claims in his amended complaint: racial and religious discrimination under the New York State Human Rights Law and the New Jersey Law Against Discrimination, and tortious interference with a prospective economic advantage. He also relied on alleged disparities in the racial and religious representation of people involved in several Broadway shows and on the alleged makeup of the League’s Board of Governors.

Report and Recommendation

Magistrate Judge Robert W. Lehrburger recommended granting the League’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), which applies when a complaint does not allege enough facts to state a legally recognized claim. As to discrimination, the recommendation concluded that Shih did not identify a specific League policy or practice, or facts plausibly connecting an alleged disparity to such a policy or practice. As to tortious interference, the recommendation concluded that Shih did not identify a specific third-party business relationship with which the League interfered and instead referred generally to economic opportunities.

The recommendation also advised dismissing the claims with prejudice because Shih had already been given an opportunity to amend and the amended complaint did not correct the earlier deficiencies.

Objections and Analysis

Shih objected that his claims were not moot and argued that his amended complaint adequately pleaded discrimination under a disparate-impact theory. The court explained that the recommendation did not dismiss the claims as moot; it recommended dismissal for failure to state a claim. The court also found that Shih’s discrimination argument largely repeated the argument presented to the magistrate judge and did not properly identify a specific finding for review.

Even after reviewing the discrimination issue independently, the court agreed that the amended complaint failed to state a claim. For a disparate-impact claim, a plaintiff must identify a specific practice or policy, show a disparity, and establish a causal connection between the two. The court concluded that Shih identified no League practice or policy and alleged no plausible connection between the alleged disparities, any League policy, and an injury to him.

The court separately reviewed the unchallenged recommendation concerning the tortious-interference claim and the recommendation to deny further leave to amend. It found no clear error and concluded that those recommendations were well supported.

Disposition

The court overruled Shih’s objections, adopted the Report and Recommendation in its entirety, and dismissed the amended complaint with prejudice under Rule 12(b)(6) for failure to state a claim. The Clerk was directed to enter judgment in favor of The Broadway League and close the case. The court also certified that any appeal would not be taken in good faith and denied permission to appeal without paying filing fees.