United States District Court, D. Minnesota
Raymond L. Semler, Plaintiff,
Eastbay Inc. et al., Defendants.
REPORT AND RECOMMENDATION
BRISBOIS, U.S. MAGISTRATE JUDGE.
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
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.
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.).
November 20, 2018, Defendant Eastbay filed the present Motion
to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). [Docket No. 5].
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].
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].
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],
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). On June 9, 2018, Plaintiff paid his annual
fee to renew his Platinum Membership with Defendant Eastbay.
(Id. at 2).
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
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).
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
DEFENDANT'S MOTION TO DISMISS. [DOCKET NO. 5].
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