DENYING DEFENDANTS' THIRD MOTION TO DISMISS
RUDOLPH CONTRERAS, District Judge.
Plaintiff BEG Investments, LLC, formerly operated the Twelve Restaurant and Lounge in Washington, D.C. In June 2011, following reports of multiple violent incidents at the restaurant, the District of Columbia Alcoholic Beverage Control Board ("the Board"), of which the Defendants are members,
II. FACTUAL BACKGROUND
The Alcoholic Beverage Statute authorizes the Board to "issue licenses to persons who meet the requirements" set forth in statute and to impose "certain conditions" on those licenses if the Board "determines that the inclusion of the conditions will be in the best interest of the locality ... where the licensed establishment is to be located." D.C.Code § 25-104(a), (e). The Board also oversees the Alcoholic Beverage Regulation Administration ("ABRA"), which provides "professional, technical, and administrative staff assistance to the Board in the performance of its functions." Id. § 25-202.
BEG alleges that the Board cancelled its liquor license on May 14, 2014 in violation of BEG's First Amendment rights and in retaliation for BEG's pursuit of this lawsuit.
Instead of continuing to pursue the second application, on April 28, 2014 BEG filed a third renewal application with the ABRA. Suppl. Compl. ¶ 35. On April 30, 2014 (the day before the Board dismissed the second renewal application), BEG also filed its Amended Complaint with this Court. After BEG filed its Amended Complaint, and despite the pendency of the third renewal application, on May 14, 2014 the Board ordered BEG to immediately cease and desist selling alcoholic beverages, citing BEG's failure to move for reinstatement of the second renewal hearing. Suppl. Compl. ¶ 37, Board Order 2014-218 at 63, Defs.' Mem. Opp. Ex. F, ECF No. 19-2. Subsequently on May 21, 2014 and in light of the third renewal application BEG had filed, the Board vacated its order, permitted BEG to resume operations, and instructed ABRA's Licensing Division "to process the new renewal application." Board Order 2014-228 at 67, Defs.' Mem. Opp. Ex. F, ECF No. 19-2.
BEG alleges that, because its third renewal application was pending, Defendants based its cease-and-desist order on information that the Board "knew or should have known by reasonable inquiry to be false." Suppl. Compl. ¶ 74. BEG further claims that Defendants entered that order to "retaliate against Plaintiff for the filing of this lawsuit" and to "interfere with the Plaintiff's prosecution of its claims before this Court." Id. ¶ 75, 76. This Court previously held that BEG had sufficiently alleged facts "suggesting that the Board had actual knowledge of the Plaintiff's renewal application," and that the claim could proceed against the named Defendants in their official capacities.
Defendants have now filed a Third Motion to Dismiss this remaining claim, arguing that BEG's Supplemental Complaint fails to plausibly allege the causation element necessary to state a claim for First Amendment retaliation and that, in any event, there is no basis for municipal liability.
A. Legal Standard
The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" in order to provide the defendant with fair notice of the claim and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A court considering such a motion must presume that the complaint's factual allegations are true and construe those allegations liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C.2000).
Although it is unnecessary for the plaintiff to plead all elements of his prima facie case in the complaint, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), to survive a motion to dismiss the complaint must nevertheless "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face,'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A court need not accept a plaintiff's legal conclusions as true, see id. nor must a court presume the veracity of any legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
B. Defendants' Third Motion to Dismiss
To establish a claim of First Amendment retaliation, a plaintiff must prove: "(1) that he engaged in protected conduct, (2) that the government `took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again;' and (3) that there exists `a causal link between the exercise of a constitutional right and the adverse action taken against him.'" Doe v. District of Columbia, 796 F.3d 96, 106 (D.C.Cir.2015) (quoting Aref v. Holder, 774 F.Supp.2d 147, 169 (D.D.C.2011)). Defendants do not challenge BEG's complaint with respect to the first two elements. Instead, Defendants' only arguments in favor of dismissal are that BEG failed to plausibly allege the causation element and that BEG is unable to establish that the District is liable for the Board's allegedly unconstitutional action.
1. The Causation Element
To satisfy the causation element, "`a plaintiff must allege that his or her constitutional speech was the `but for' cause of the defendants' retaliatory action."
Defendants contend that the two week period between when BEG filed its Amended Complaint and when the Board ordered BEG to cease and desist serving alcohol is too lengthy to plead a plausible causal connection.
Simply put, Defendants' argument is contrary to this Circuit's precedent. There is, of course, "no `hard-and-fast rule' regarding the temporal proximity that must exist between protected activity and the adverse action.'" Manuel v. Potter, 685 F.Supp.2d 46, 68 (D.D.C.2010) (quoting Pardo-Kronemann v. Jackson, 541 F.Supp.2d 210, 218 (D.D.C.2008)). While the Supreme Court has suggested that "in some instances a three-month period ... may, standing alone, be too lengthy to raise an inference of causation," neither the Supreme Court nor the D.C. Circuit "has established a bright-line three-month rule." Hamilton v. Geithner, 666 F.3d 1344, 1357-58 (D.C.Cir.2012). This Circuit has held on several occasions that a period of one month or shorter typically suffices to state a prima facie claim and raise a plausible inference of retaliation. See, e.g., id. at 1358-59 (finding evidence that the plaintiff was denied information about a position and then passed over for that
The two week period alleged here provides an even closer temporal association between BEG's protected activity and the Board's allegedly retaliatory action. Ultimately, to survive summary judgment and create a genuine issue of material fact as to causation, BEG may need to proffer more evidence than simple temporal proximity. See Doe, 796 F.3d at 107 (concluding that, although "close temporal proximity... may be sufficient to allow a claim to survive summary judgment," where, "as here, there is substantial unrebutted evidence that the defendants acted with subjective good faith, summary judgment is appropriate on the First Amendment claims"); Paulk v. Architect of the Capitol, 79 F.Supp.3d 82, 91 n. 10 (D.D.C.2015) ("[C]ourts in this Circuit view temporal proximity as persuasive, but not dispositive, evidence of retaliation"). But for purposes of this motion to dismiss, because "the close temporal proximity of the protected behavior and the alleged retaliation" suggest that a causal relationship exists between the two, "[n]o more is necessary to survive Rule 12(b)(6) dismissal." Saint-Jean v. District of Columbia, 846 F.Supp.2d 247, 259 (D.D.C.2012).
Defendants also argue that because defendants Short and Rodriguez were not named in the Amended Complaint no retaliatory animus can be inferred against them and that it is "not plausible" that Short and Rodriguez "retaliated against Plaintiff for filing that pleading." Defs.' Reply at 5; Defs.' Mem. Supp. at 8-9. This contention is unavailing under the circumstance presented in this case. Short and Rodriguez were rightfully not named as defendants in the Amended Complaint because all of the events alleged therein took place before they were members of the Board. To be sure, the fact that certain individuals were not named in a complaint may inform the inferences that can plausibly be drawn about an individual's motivations. See Vickers v. Powell, 493 F.3d 186, 195-96 (D.C.Cir.2007) (affirming grant of summary judgment on plaintiff's retaliation claim, and concluding that a reasonable jury would be unable "to find a retaliatory motive" on the part of the plaintiff's supervisor,
2. Municipal Liability
As an alternative ground for dismissing BEG's retaliation claim, Defendants contend that BEG has failed to adequately allege a basis for municipal liability against the District of Columbia. The Court concludes otherwise.
To establish municipal liability, then, a plaintiff must "identify a municipal `policy' or `custom' that caused the plaintiff's injury." Brown, 520 U.S. at 403, 117 S.Ct. 1382. A municipality can establish a policy or custom in several ways: by explicitly setting a government policy that violates the Constitution; by acting through a municipal policymaker; by consistently adopting as a custom, through a policymaker's failure to act, the actions of subordinate officials; or by failing
Here, Defendants claim that the Board is not a final policy maker, relying heavily on the D.C. Circuit's recent decision in Singletary v. District of Columbia, 766 F.3d 66 (D.C.Cir.2014). See Defs.' Mem. Supp. at 9-11. The plaintiff in Singletary had brought a section 1983 action against the District of Columbia alleging that the District was liable for its Parole Board's decision revoking his parole on the basis of "unreliable multiple-hearsay testimony." 766 F.3d at 68. The D.C. Circuit concluded that the Parole Board's revocation decision could not be attributed to the District of Columbia and that the Board was not "a final policymaker for the District on matters of parole-revocation policy." Id. at 73. The court found it indicative that the Mayor — and not the Board — possessed rulemaking authority. Id. at 74. While the Circuit conceded that the Board "possessed authority to render final revocation decisions in individual cases," it noted that the Board was not "authorized to promulgate general rules and other policies" and that there was no suggestion the Board had "acted under any such rule when it revoked Singletary's parole based on unreliable evidence." Id. Consequently, the Circuit held that the Board was "`constrained by policies not of [its] making," including regulations requiring that parole violations to be found by a preponderance of the evidence. Id. Thus, the Board's "decision to `depart[ ]' from those policies... was not an `act of the municipality.'" Id. at 74, 73 (alteration in original) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality op.)).
Defendants argue that the Board here "is not a final policy maker for the same reasons that the Board of Parole [was] not" in Singletary. Defs.' Mem. Supp. at 10. Conceding that the Board "has the final authority to decide the outcome of individual applications before it," Defendants nevertheless note that the Board "lacks the authority to create policies in the area implicated by this case." Id. at 10-11. Taking an even broader tack in their reply, Defendants claim that the "D.C. Circuit has held that the final authority to decide a particular case does not make a board a policymaker for purposes of municipal liability."
Defendants read Singletary far too broadly. The Supreme Court has instructed that the relevant inquiry is not whether a municipal official or entity acts on behalf of the municipality "in some categorical, `all or nothing' manner." McMillian, 520 U.S. at 785, 117 S.Ct. 1734. Rather, a
Beyond pointing to the Board's inability to promulgate alcohol regulations, Defendants do little to contest the District's municipal liability.
Accordingly, the Board's decision to cancel BEG's license was made "by the government's authorized decisionmakers" over
As a final shot across the bow, Defendants argue that the Board was "constrained by policies not of [its] making" just like the Parole Board in Singletary. Defendants cite to a D.C. regulation requiring that the Board allow an entity's expired license to continue in effect until the Board renders its final decision on an application. Defs.' Mem. Supp. at 11 (alteration in original) (quoting Singletary, 766 F.3d at 74); see also D.C. Mun. Reg. tit. 23, § 101.2. This argument is unavailing as a factual matter. The Board's May 1 decision dismissing BEG's application was a final decision by the Board: the Board's May 14 order cites that regulation, explicitly identifies its May 1 decision as "the final decision of the Board," and explains that because it had rendered a final decision, it could "no longer allow [BEG] to operate under an expired license." Board Order 2014-218 at 63, Defs.' Mem. Opp. Ex. F, ECF No. 19-2. Thus, the Board appears to have acted entirely in line with that regulation when it canceled BEG's license (at least taking Defendants' claim that the Board had no knowledge of the third application as true).
Accordingly, BEG has adequately pled municipal liability in these circumstances.
For the foregoing reasons, Defendants' Third Motion to Dismiss (ECF No. 32) is