Doe v. McKesson
272 F. Supp. 3d 841
| M.D. La. | 2017Background
- Plaintiff, a Baton Rouge police officer, alleges he was struck by a rock during a July 9, 2016 demonstration and sues DeRay Mckesson and “Black Lives Matter” for negligence and respondeat superior.
- Plaintiff contends Mckesson led and incited the protest and that the unknown assailant was a member/agent of Black Lives Matter.
- Mckesson moved to dismiss under Rule 12(b)(6); he also moved under Rule 9 that “Black Lives Matter” lacks capacity to be sued.
- Plaintiff sought leave to amend to add “#BlackLivesMatter” (a hashtag) and Black Lives Matter Network, Inc., plus additional factual allegations.
- The district court held (after briefing and oral argument) the complaint alleges only conclusory facts about Mckesson’s conduct/speech and that “Black Lives Matter” (and a hashtag) are not juridical persons; proposed amendments would be futile.
- Court granted both motions to dismiss, denied leave to amend, and dismissed the case with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff plausibly alleged Mckesson is liable for torts of others | Mckesson led/"gave orders," incited violence, ratified conduct | Allegations are conclusory; protected association/speech cannot alone impose tort liability | Dismissed — allegations are threadbare; plaintiff failed to allege the requisite authorization, direction, ratification, or speech likely to incite lawless action |
| Whether public statements/support for a movement can supply basis for liability | Mckesson's media statements and leadership role show intent and ratification | Speech alleged is protected advocacy/association and not speech likely to incite imminent lawless action | Dismissed — cited First Amendment limits (Claiborne); alleged statements do not meet incitement or ratification standards |
| Whether “Black Lives Matter” (as pleaded) has capacity to be sued | It is a national unincorporated association amenable to service | It is a social movement, not a juridical person | Dismissed — movement lacks capacity under Louisiana law to be sued |
| Whether proposed amendments (adding a hashtag and Black Lives Matter Network, Inc., and extra facts) cure defects | Amendments allege additional statements, identify an entity and a hashtag as defendants | Proposed additions are futile: hashtag not suable; added facts remain conclusory; entity not tied to tortious act | Leave to amend denied; amendment would be futile; case dismissed with prejudice |
Key Cases Cited
- Ashcroft v. Iqbal, 566 U.S. 662 (2009) (pleading standard requires factual matter plausibly showing liability)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility, not mere labels or conclusions, required to survive dismissal)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (First Amendment limits on imposing tort liability for conduct in context of protected political activity)
- NAACP v. Button, 371 U.S. 415 (1963) (precision required when assessing liability that may chill association/speech)
- Neitzke v. Williams, 490 U.S. 319 (1989) (frivolous suits include fantastic or delusional claims)
- Foman v. Davis, 371 U.S. 178 (1962) (standards for granting or denying leave to amend)
- Ackerson v. Bean Dredging LLC, 589 F.3d 196 (5th Cir. 2009) (amendment is futile if amended complaint would be subject to dismissal)