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Martin Gross v. R.T. Reynolds et al

February 28, 2013

MARTIN GROSS,
PLAINTIFF,
v.
R.T. REYNOLDS ET AL., DEFENDANTS.



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

MEMORANDUM

Martin Gross brings this lawsuit against R.T. Reynolds, Inc. (Reynolds), Harrisburg University of Science and Technology (Harrisburg University), Ike Sholley, Wayne Spahr, Ron Whisker, Todd Buzard, Eric Darr, and Dave Angle (collectively, Defendants). Gross asserts claims under 42 U.S.C. § 1981 against all defendants (Count I); he also asserts state law claims against Reynolds for breach of contract and breach of the duty of good faith and fair dealing (Count II). Defendants moved to dismiss Gross' second amended complaint. For the following reasons, I will grant the motion.

I. BACKGROUND

A. Factual History

Briefly summarized,*fn1 Gross' lawsuit stems from a construction project at Harrisburg University for which he was a subcontractor. Reynolds was the general contractor for the project. Sholley, Spahr, Whisker, Buzard, and Angle are Reynolds employees. Darr is Harrisburg University's president.

Gross and his colleague, James White, are African American. Gross does business as "The Art I Do," which is a certified disadvantaged business under Harrisburg City's disadvantaged business program. Gross alleges that Whisker and Spahr solicited him to provide painting services for the Harrisburg University project and negotiated with him on behalf of Reynolds. In May 2007, Gross and White entered into a subcontracting agreement with Reynolds. Gross alleges that Sholley, Buzard, and Angle were involved in managing the contract.

Gross claims that Reynolds and its employees inhibited performance of the contract for discriminatory reasons. Gross alleges that Reynolds contracted with him only to enhance its position in the bidding process and that Reynolds never intended to fully perform; that Reynolds and its employees sabotaged Gross' work schedule by granting preferences to non-minority contractors; that Reynolds arbitrarily removed certain jobs from Gross' workload; and that Reynolds hired non-minority contractors to perform jobs he originally bid on. White complained to Harrisburg University about the allegedly discriminatory behavior of Reynolds and its employees. Gross alleges that Darr surreptitiously questioned Gross in response to White's complaints and that Sholley demanded Gross remove White from the project.

Gross claims that although he completed all of his contractual obligations by April 2009, Reynolds still owes him $88,000 to $120,000 under the contract.

B. Procedural History

Gross filed his original complaint in November 2010, alleging constitutional violations pursuant to 42 U.S.C. § 1983 in addition to his claims under § 1981 and state law.*fn2 Defendants moved to dismiss. Gross responded in March 2011 by filing an amended complaint, which Defendants also moved to dismiss.*fn3

In September 2011, I granted Defendants' motion to dismiss. I concluded that Gross failed to allege plausible § 1981 and § 1983 claims against any of the defendants, Gross v. Reynolds, CIV.A. 10-2380, 2011 WL 4402106, at *4-8 (M.D. Pa. Sept. 22, 2011), and I declined to exercise supplemental jurisdiction over Gross' state law claims for breach of contract and breach of the duty of good faith and fair dealing, id. at *9.

Gross appealed to the United States Court of Appeals for the Third Circuit, which issued its decision in early July 2012. The court agreed with me that Gross' amended complaint failed to state plausible § 1981 and § 1983 claims. Gross v. R.T. Reynolds, Inc., 487 F. App'x 711, 716-20 (3d Cir. 2012). Nonetheless, because my order granting the motion was ambiguous regarding Gross' ability to cure, the court remanded the case with instructions for me "to determine and explain in the first instance whether leave to amend should be granted or whether further amendment would be futile or inequitable." Id. at 721.

I subsequently issued an order dismissing Gross' claims without prejudice to his ability to file a second amended complaint, which he did in late July 2012.*fn4 He does not reassert his § 1983 claims, acknowledging that he "has nothing more to plead" in that regard. Doc. No. 64 ¶ 1.*fn5 ...


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