United States District Court, E.D. Missouri, Eastern Division
A.L.L. CONSTRUCTION, LLC, Plaintiff,
METROPOLITAN ST. LOUIS SEWER DISTRICT; JAMES FAUL, RUBY BONNER, RONALD BOBO, MICHAEL YATES, and JAMES I. SINGER, in their individual capacities as members of the Board of Trustees of the Metropolitan St. Louis Sewer District; and BATES UTILITY CO., INC., Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motions of Defendants
Metropolitan St. Louis Sewer District (“MSD”) and
the five members of MSD's Board of Trustees
(“Trustees”) named as Defendants in their
individual capacities,  to dismiss Plaintiff ALL Construction,
LLC's (“ALL”) amended complaint for lack of
standing and failure to state a claim. ECF Nos. 10 & 12.
On December 14, 2017, the Court held these motions in
abeyance subject to ALL filing the amended complaint now
under consideration. After ALL filed the amended complaint,
the Court permitted the parties to supplement their briefs in
support of and opposition to the motions to dismiss. For the
following reasons, the motions will be granted in part and
denied in part.
Defendant, Bates Utility Co., Inc. (“Bates”), has
separately moved to dismiss the amended complaint for failure
to state a claim. ECF No. 46. For the reasons set forth
below, the Court will deny Bates's motion.
facts alleged in the complaint have been described in detail
in the Court's December 14, 2017 Memorandum and Order
(ECF No. 29) but will be recounted here as necessary to
address the complaint's amendment. ALL is a construction
company that aids in the construction of sewer systems and
has worked as a general contractor or subcontractor for MSD
for approximately 20 years.
a policy providing that a bidder on non-building construction
projects exceeding $50, 000 must utilize a Minority Business
Enterprise (“MBE”) on at least 17% of the
project. A bidder who fails to achieve this percentage of MBE
participation will have its bid rejected as nonresponsive
unless the bidder can demonstrate a good faith effort to
achieve the MBE goal. ALL qualifies as an MBE under MSD's
policy in that its owner, Anton Lumpkins, is African
worked as an MBE subcontractor for general contractors that
frequently do business with MSD, including Bates. ALL was
awarded MSD's “Minority Contractor of the
Year” in 2000. Beginning in 2016, Bates included ALL as
a subcontractor on several projects for MSD in order to
satisfy MSD's MBE requirements. However, according to the
amended complaint, a Chief Estimator and Project Manager at
Bates at some point expressed his “distaste” for
MSD's MBE requirements, and “Bates' agents
explicitly stated [their] hostility towards programs designed
to benefit African-Americans and other racial
minorities.” ECF No. 35 ¶¶ 20, 104. Then,
“beginning in early 2016, Bates used ALL on bids to
meet MSD's MBE participation requirements so that it
would be awarded MSD projects but did not actually use ALL on
these projects, ” at times not even calling ALL to the
job site. Id. ¶¶ 24, 27. ALL alleges,
“[u]pon information and belief[, ] Bates, a white-owned
company, was either pocketing the money it represented to MSD
it had earmarked for its MBE subcontractors, including ALL[,
] or used other white-owned companies to perform this work .
. . .” Id. ¶ 27.
contacted MSD staff to complain about Bates's
non-compliance with MSD's MBE participation requirements.
ALL believed that it was not the only MBE that was being
“exploited” by Bates on MSD projects and that
other MBEs were being listed on bids to meet MSD's MBE
participation requirements and then not being used on the
projects. Id. ¶ 32.
about April 14, 2016, Lumpkins spoke at a public meeting of
MSD's Board of Trustees. Lumpkins told the Board about
the issues that he and other minority subcontractors were
having with Bates. Specifically, Lumpkins told the Board that
Bates was using ALL and other MBEs in bids to achieve
MSD's diversity requirements while excluding them from
performing work on projects. After Lumpkins informed the
Board of Bates's noncompliance with the MBE requirement,
the Board did not approve the award of a project to Bates and
ultimately suspended Bates from bidding on any projects as a
general contractor for one year.
alleges that, notwithstanding this suspension, MSD permitted
Bates to continue to present change orders on MSD projects
listing ALL as an MBE. ALL alleges that the “Trustees
were aware that Bates continued to use ALL as an MBE
contractor on its bid forms and change-order forms submitted
to MSD, even though ALL was not performing the actual work,
and nonetheless continued to approve such bids and
change-orders, effectively turning a blind eye to Bates'
discrimination against ALL, despite MSD's minority
participation requirements.” Id. ¶ 48.
days after the April 14, 2016 meeting, “MSD staff began
contacting ALL complaining about various issues with
ALL's work, ” and “[w]hen ALL demanded proof
of alleged deficiencies in its work, MSD refused to provide
any evidence of same.” Id. ¶ 41. On June
19, 2016, Lumpkins “again went to the Trustees . . .
informing [them] of the retaliation ALL had experienced for
his complaints about Bates. Lumpkins notified the Trustees
that MSD staff had begun citing ALL for deficient work while
refusing to provide any evidence.” Id. ¶
43. The Trustees “took no action” in response to
Lumpkin's complaints, and on June 19, 2016, “ALL
was removed from the Small Contractor
Program.” Id. ¶¶ 44-45. ALL
alleges that “[t]he Trustees were notified and/or
consulted regarding MSD's staff's intention to remove
ALL from the Small Contractor Program, and tacitly approved,
consented to, and/or ratified the [action].”
Id. ¶ 46.
further alleges, as it did in the original complaint, that
Defendants retaliated against it by requiring that a general
contractor, Jay Dee and Frontier-Kemper (“Jay
Dee”), remove ALL as a subcontractor from an MSD
project known as the “Deer Creek Project.” Jay
Dee had included ALL as a subcontractor in its bid for the
project, and MSD's professional staff issued a notice of
award to Jay Dee after determining that Jay Dee's was the
lowest and best bid. However, a competitor of Jay Dee
protested the staff's decision because of Jay Dee's
inclusion of ALL as a subcontractor. The competitor alleged
that ALL was unqualified to perform the work.
alleges that, on December 8, 2017, the Trustees “voted
against introducing the ordinance that would have approved
MSD's professional staff's award of the bid to Jay
Dee.” Id. ¶ 63. The five Trustees who
voted not to approve the award of the contract to Jay Dee are
the five Trustees named as Defendants in this case. ALL
alleges that the Trustees swore in affidavits that the reason
they voted against approving the award of the Deer Creek
Project contract to Jay Dee was because of Jay Dee's
inclusion of ALL as a subcontractor, and that one Trustee
“even stated that he objected to ALL because of the
Bates matter.” Id. ¶¶ 64-65. Jay Dee
subsequently removed ALL as a subcontractor, but Jay Dee was
still not awarded the Deer Creek Project contract.
alleges that the Trustees made statements in sworn affidavits
suggesting that Jay Dee was not awarded the contract because
Jay Dee had originally included ALL on its bid. According to
ALL, “the MSD Board of Trustees has rarely-if
ever-refused to ratify a notice of award to a contractor
recommended by its professional staff of engineers, ”
and in the last five years, the Trustees have ratified every
single notice of award given by MSD's professional staff
for projects in excess of $10 million with the “lone
exception of Jay Dee and the Deer Creek Project.”
Id. ¶¶ 61-62.
asserts claims against the Trustees and MSD for First
Amendment retaliation (Count I), and against the Trustees,
MSD, and Bates for violation of 42 U.S.C. § 1981 (Count
II). ALL alleges that the Trustees are the final
policy-makers for MSD.
motion to dismiss for lack of standing or for failure to
state a claim, the reviewing court accepts the
plaintiff's factual allegations as true and draws all
reasonable inferences in favor of the nonmoving party.
Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017)
(failure to state a claim); E.L. by White v. Voluntary
Interdistrict Choice Corp., 864 F.3d 932, 935 (8th Cir.
2017) (standing). But “[c]ourts are not bound to accept
as true a legal conclusion couched as a factual ...