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Bret Levy, D/B/A Benny the Bum's, Inc v. Trent Motel Associates

August 25, 2011

BRET LEVY, D/B/A BENNY THE BUM'S, INC., PLAINTIFF,
v.
TRENT MOTEL ASSOCIATES, LP;
STADIUM HOTEL RESTAURANT
GROUP, INC.; BARRY SUSSMAN;
MAHAVIR CHUDASAMA; FRED
PANITZ; RAJ PARIKH, D/B/A PARIKH
ASSOCIATES; HOWARD KAUFMAN;
WILLIAM F. GREEN; AND HOLIDAY
HOSPITALITY FRANCHISING, INC., DEFENDANTS.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

This case arises out of plaintiff's operation of a restaurant, bar, and ballroom at a hotel known as the Holiday Inn Philadelphia Stadium. Plaintiff alleges that defendants repeatedly interfered with his operation of the restaurant, bar, and ballroom because of his refusal to discriminate against black patrons. The Amended Complaint alleges claims under 42 U.S.C. §§ 1981, 1982, 2000a, 2000a-1, 2000a-2, and various provisions of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. § 951, et seq.

Presently before the Court is the Motion of Defendants Trent Motel Associates, L.P., Stadium Hotel Restaurant Group, Inc., Barry Sussman, Mahavir Chudasama, Fred Panitz, Raj Parikh d/b/a Parikh Associates Hotel Investment & Development Co., Howard Kaufman and William F. Green to Dismiss Plaintiff's Amended Complaint Pursuant to Fed. R. Civ. Proc. 12(b)(6). For the reasons set forth below, defendants' motion is granted in part and denied in part.

II. BACKGROUND*fn1

A. The Parties

Plaintiff*fn2 alleges that at all times relevant to this litigation, defendant Holiday Hospitality Franchising, Inc. ("Holiday Hospitality") issued a franchise to defendant Trent Motel Associates, LP ("Trent Motel") to operate a hotel known as the Holiday Inn Philadelphia Stadium ("the Hotel"). (Am. Compl. ¶¶ 10, 41.) Defendant Stadium Hotel Restaurant Group, Inc. ("Stadium Hotel") owned the liquor license utilized at the Hotel. (Id. ¶¶ 10-11.) Trent Motel, Stadium Hotel, and Stadium Hospitality Group, LLC ("Stadium Hospitality") managed the Hotel.*fn3 (Id. ¶ 20.) Defendant Raj Parikh was a partner of defendant Trent Motel, and defendants Barry Sussman, Mahavir Chudasama, Fred Panitz, and Howard Kaufman were partners of Trent Motel and shareholders in defendant Stadium Hotel. (Id. ¶¶ 12-16.) Defendant William F. Green was the General Manager of the Hotel. (Id. ¶ 17.)

On March 9, 2006, plaintiff entered into an oral joint venture agreement with Sussman, Chudasama, Panitz, Kaufman, Stadium Hotel, and Stadium Hospitality. (Id. ¶ 21.) The agreement provided that plaintiff would operate the bar, restaurant, and ballroom of the Hotel. (Id.) That same day, Trent Motel, as landlord, entered into a lease agreement with plaintiff, Stadium Hotel, and Stadium Hospitality, as tenants. (Id. ¶ 22.) Trent Motel leased to the tenants portions of the Hotel. (Id. ¶ 23.) Plaintiff operated and marketed the bar and restaurant of the Hotel under the name "Benny the Bum's," and began to "rent and issue license agreements for the use of the bar, restaurant and ballroom . . . for private parties and events open to the general public." (Id. ¶ 25.)

B. Defendants' Alleged Discriminatory Policy

Plaintiff, who is white, rented Benny the Bum's to black customers for various events catering to black customers. (Id. ¶ 26.) Plaintiff had a close relationship with the black community, black event promoters, and black radio stations. (Id.) Plaintiff alleges that defendants objected to his booking of events catering to black customers and the black community, and that defendants engaged in a series of adverse actions against Levy and Benny the Bum's due to Levy's refusal to abide by defendants' racially discriminatory policies.

On February 16, 2009, defendant Green emailed plaintiff, stating, "I think we have to reconsider 'hip hop' type crowds in this hotel. My experience is that it will chase away the regular clientele in both the restaurant and the hotel."*fn4 (Id. ¶ 28, Ex. B.) At a meeting on February 23, 2009, defendants Green, Chudasama, Parikh, Sussman, Kaufman, and Panitz instructed plaintiff not to book "Black events" in the future, and warned plaintiff that "he would be thrown out of the Hotel" if he failed to comply. (Id. ¶¶ 29-31.) Defendants further instructed plaintiff "to be careful in the manner of keeping Blacks out of the Hotel to avoid being caught." (Id. ¶ 30.) To this end, defendants directed plaintiff to, inter alia, substantially raise prices to discourage black customers from holding events at the Hotel, and to "falsely tell Black clients that space was unavailable." (Id.) Defendants also instructed plaintiff to cancel all upcoming "Black events." (Id. ¶¶ 32-34, 36.)

Disregarding defendants' instructions, plaintiff continued to advertise through black radio stations and book "Black events." (Id. ¶ 35.) In the summer of 2009, defendants canceled "Black events" scheduled to take place in the ballroom, and in late August 2009, defendants "forcibly . . . took over operations of the ballroom due to . . . [p]laintiff's refusal to cease renting ballroom space to Blacks." (Id. ¶ 37.) Thereafter, on August 19, 2009, defendants changed the locks on the doors to Benny the Bum's, ordered Levy to leave the premises, and informed plaintiff's employees that defendants were taking over the operation of the restaurant. (Id. ¶ 38.) With police intervention, Levy regained entry to the premises the next day. (Id. ¶ 38.)

Plaintiff scheduled an event on October 30, 2009 that was sponsored by a black promoter and a radio station that "catered to the Black sound." (Id. ¶ 46.) Once defendants learned of the event, they "had the parking lot coned off so that customers of this event could not enter and park on the parking lot of the premises." (Id.)

On October 31, 2009, Stadium Hotel, which owned the liquor license for the Hotel, and the defendant shareholders of Stadium Hotel, permitted the license to expire. (Id. ¶ 47.) In early November 2009, "[d]efendants called the Pennsylvania State Police to shut down the Plaintiff's business due to the expired liquor license." (Id. ¶ 48.) On November 16, 2009, the State Police "came to the Hotel and closed the Plaintiff's business." (Id.) Because plaintiff was listed as the manager on the liquor license, he was able to reinstate the license on December 10, 2009. (Id. ¶ 49.) However, on December 11, 2009, defendants "caused the license to be placed in a safe keeping status with the Commonwealth of Pennsylvania, thereby prohibiting the Plaintiff from utilizing [the liquor license]." (Id. ¶ 50 (emphasis omitted).)

C. Proceedings Before the Pennsylvania Human Relations Commission

Plaintiff filed a complaint with the Pennsylvania Human Relations Commission ("PHRC") against "Trent Motel Associates, LP -- Owners Stadium Holiday Inn, et al." on November 2, 2009. (Pl.'s Resp. at 1; Defs.' Mot. to Dismiss, Ex. C.) Plaintiff subsequently filed Second and Third Amended complaints on February 3 and March 11, 2010.*fn5 (Pl.'s Resp. at 1-2; Defs.' Mot. to Dismiss, Exs. D, E.) On March 10, 2010, the PHRC sent plaintiff a letter enclosing a complaint that it suggested plaintiff should file; this complaint was filed by the PHRC on March 17, 2010, and was assigned a new docket number. (Pl.'s Resp. at 2; Def.'s Mot. to Dismiss, Ex. G.) On April 16, 2010, respondents filed a motion to dismiss the Third Amended Complaint. (Pl.'s Resp. at 2.) On August 25, 2010, PHRC Motions Commissioner Daniel L. Woodall, Jr. issued an Interlocutory Order denying the motion to dismiss. (Pl.'s Resp., Ex. 10.)

Plaintiff filed a Fourth Amended Complaint on September 1, 2010. (Pl.'s Resp. at 2; Def.'s Mot. to Dismiss, Ex. F.) On December 22, 2010, Levy received a letter from the PHRC advising him that one year had passed since the filing of his PHRC complaint and that he could bring an action in the Court of Common Pleas. (Pl.'s Resp., Ex. 13.)

D. The Present Litigation

Plaintiff filed an initial Complaint in this Court on February 1, 2011. Plaintiff amended his complaint on June 28, 2011, removing InterContinental Hotels Group as a defendant and adding Holiday Hospitality as a defendant. The first four counts of the Amended Complaint allege that all defendants violated 42 U.S.C. § 1981 (Count I); 42 U.S.C. § 1982 (Count II); 42 U.S.C. §§ 2000a, 2000a-1, 2000a-2 (Count III); and 43 Pa. Stat. §§ 951(a), (h)(1), (h)(3), ...


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