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Semler v. Eastbay, Inc.

United States District Court, D. Minnesota

March 4, 2019

Raymond L. Semler, Plaintiff,
Eastbay Inc. et al., Defendants.



         This matter comes before the undersigned United States Magistrate Judge upon Defendant Eastbay's Motion to Dismiss, [Docket No. 5], which was referred to the undersigned by the Honorable Wilhelmina M. Wright. (Order of Reference [Docket No. 10]).

         For the reasons discussed below, the Court recommends that: (1) Defendant Eastbay's Motion to Dismiss, [Docket No. 5], be GRANTED in part and DENIED in part; (2) that the District Court decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claims; and (3) that Plaintiff's remaining state law claims be REMANDED to the Second Judicial District Court, Ramsey County, State of Minnesota.


         Plaintiff, Raymond L. Semler, initiated the present action on September 21, 2018, by filing his pro se Complaint, in the State of Minnesota's Second Judicial District Court. (Notice of Removal [Docket No. 1]). On October 22, 2018, this case was removed to the District of Minnesota. (Id.).

         On November 20, 2018, Defendant Eastbay filed the present Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). [Docket No. 5].

         On December 3, 2018, the Honorable Wilhelmina M. Wright referred Defendant Eastbay's Motion to Dismiss to the undersigned for Report and Recommendation, and the undersigned issued a briefing schedule. [Docket Nos. 10, 11].

         On December 19, 2018, Plaintiff filed his opposition to Defendant's motion. [Docket No. 14]. On January 7, 2019, Defendant filed its reply. [Docket No. 16].

         On February 1, 2019, Plaintiff filed an unsolicited letter via CM/ECF addressed to the undersigned providing supplemental authority. [Docket No. 18]. On February 4, 2019, the Court ordered Defendant to respond to the letter. (Order [Docket No. 19]). On February 6, 2019, Defendant responded to Plaintiff's letter. [Docket No. 20]. Thereafter, the Court took Defendant's Motion to Dismiss, [Docket No. 5], under advisement.

         II. BACKGROUND[1]

         Defendant Eastbay is a shoe and clothing company. (Compl., [Docket No. 1-1], at 1). Plaintiff has been a customer of Defendant Eastbay since around 2009. (Id. at 2). Additionally, Plaintiff has been a “Platinum Member” of Defendant Eastbay for the past six to seven years. (Id.). To become a Platinum Member, Plaintiff paid $39.99 annually and, in exchange, would get “Rush Delivery” on all purchases from Defendant Eastbay. (Id. at 2-3).[2] On June 9, 2018, Plaintiff paid his annual fee to renew his Platinum Membership with Defendant Eastbay. (Id. at 2).

         On July 7, 2018, Plaintiff alleges that he attempted to place an order with Defendant Eastbay, but he was “not allowed to use his Platinum Membership.” (Id.). On July 10, 2018, Plaintiff asked his mother to call Defendant Eastbay and check on the status of his July 7, 2018, order. (Id. at 2). When Plaintiff's mother called Defendant Eastbay, she was allegedly informed of the following: (1) that per Plaintiff's request, his account with Defendant Eastbay had been closed; (2) that Defendant Eastbay did not have Plaintiff as a member in its system; (3) that Defendant Eastbay does not do business with incarcerated persons; and (4) that Plaintiff's July 7, 2018, order was shipped “Regular Delivery” as opposed to “Rush Delivery.” (Id. at 2-3).[3]

         On July 17, 2018, Plaintiff called and spoke to a customer service representative at Eastbay. (Id. at 4). The representative allegedly informed Plaintiff that: (1) Plaintiff had three accounts with Defendant Eastbay; (2) Plaintiff's account showed that he had paid his annual Platinum Membership fee, but that it expired one week later; (3) because Plaintiff resided at a correctional facility he was not eligible to be a Platinum Member; and (4) that Defendant Eastbay would not refund his annual membership fee. (Id. at 4-5).

         On the basis of these factual allegations, liberally construing the pro se Complaint, Plaintiff asserts claims against Defendant Eastbay for violations of his Fourteenth Amendment rights, the Minnesota's Consumer Fraud Act, and for breach of contract. (See, Compl., [Docket No. 1-1], at 3). Plaintiff also raises state law claims against Defendants Jane and John Does for violating his right to privacy under the Minnesota Government Data Practice Act (“MGDPA”) and the Minnesota Health Record Act (“MHRA”). (Id.).


         Defendant Eastbay argues the Fourteenth Amendment does not apply to private, non-state actors, and therefore, Plaintiff's claim thereunder must fail as a matter of law. (Mem. in Supp. [Docket No. 7]). Defendant Eastbay also argues that Plaintiff lacks standing under the Minnesota Consumer Fraud Act because it does not provide for a private cause of action. (Mot. to Dismiss [Docket No. 5]). Defendant Eastbay lastly argues that Plaintiff did not even allege a breach of contract claim in ...

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