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IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION ERIC

BROWN and HAROLD LAWRENCE, Plaintiffs, v. STACY DAVID, INC. d/b/a BRANDON HYUNDAI, Defendant. ____________________________________/ PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT Plaintiffs, ERIC BROWN and HAROLD LAWRENCE, by and through undersigned counsel, hereby file their response in opposition to Defendants Motion for Summary Judgment and ask the Court to deny Defendants Motion and immediately set this case for trial. In support thereof, Plaintiffs state the following. BACKGROUND Plaintiffs, Eric Brown and Harold Lawrence are African American males who are employed by Verizon. On or about July 22, 2009, they decided to visit Brandon Hyundai that is owned by Defendant Stacy David, Inc. Specifically, Plaintiffs were interested in looking at the Hyundai Genesis. After looking at the cars on the lot, Plaintiffs spent some time talking to a sales person. Plaintiff Lawrence offered his drivers licenses to the sales person and he went to get the keys to the car. Upon the sales persons return, he told Plaintiffs that his sales manager would not let them test drive the car until Defendants ran Case No. 09-CA-026297 Division: K

a credit report on Plaintiffs. The sales person told Plaintiffs that this was Defendants policy. Of course, Plaintiffs were not happy with this treatment and they left the dealership without test driving the Hyundai Genesis. Plaintiffs shared their story with George Iantosca, a Caucasian friend. On or about Saturday, August 22, 2009, Iantosca went to Defendants dealership. On his visit to the dealership, Iantosca asked to test drive the Hyundai Genesis. Defendant allowed Iantosca to test drive the vehicle without running a credit check. Given the discriminatory nature of Defendants treatment, Plaintiffs filed the instant action in this Court. Specifically, Plaintiffs are seeking relief under the Civil Rights Act of 1866, 42 U.S.C. 1981, as amended. A. The Plaintiffs can establish a prima facie case of discrimination based on the facts in the record.

Plaintiffs Brown and Lawrence are able to satisfy their burden of showing that Defendant treated them differently based on race. Plaintiffs visited Defendants automobile dealership to consider making a purchase on a Hyundai Genesis. After meeting Defendants salesman, Plaintiffs asked the salesman if they may test drive the vehicle. The salesman indicated that he had to check with his manager. When the salesman returned, he told Plaintiffs that they could test drive the vehicle if they submitted to a credit check. Plaintiffs questioned the logic in Defendants policy and left the dealership. Recognizing the subtle discrimination connected to Defendants policy, Plaintiffs asked a Caucasian friend, George Iantosca, to visit the dealership. Instead of dressing in business casual, like the Plaintiffs, Iantosca was wearing shorts when he visited the dealership. Like Plaintiffs, Iantosca asked a salesman if he could test drive the car. Unlike

the Plaintiffs, the salesman did not ask Iantosca to submit to a credit check. There is no dispute that Defendants subjected Plaintiffs, two African-American men, to a standard different than Iantosca a Caucasian man. In cases such as the present case, the Eleventh Circuit has ruled that a plaintiff must establish that: 1) he is a member of a racial minority; 2) the defendant had an intent to discriminate on the basis of race; and 3) the discrimination concerned one or mare activities enumerated in the statute. Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228 (11th Cir. 2000). The appellate court further noted that the plaintiff must bring forth evidence demonstrating that the defendant treated him less favorably because of his race or ethnicity. In other words, for the plaintiff must show that the defendant employed a practice that treats races differently. There is no dispute that Defendant, in the present case subjected Plaintiffs, to a different standard to a similarly situated Caucasian consumer. Because Defendant subjected Plaintiff to a different standard, the Plaintiffs have successfully established the prima facie requirements for discrimination. In summary judgment, Defendant has not advanced a legitimate business reason for treating Plaintiffs differently than the similarly situated Caucasian consumer. On that basis alone, Defendants cannot prevail on summary judgment. Notwithstanding, this argument, Plaintiffs will address the flaws in Defendants argument in part B below. B. Defendants Motion for Summary Judgment should be denied because its argument attempts to narrow the reading of 42 U.S.C. 1981.

Because Plaintiffs left Defendants dealership without test driving a vehicle or making a purchase, Defendant argues that Plaintiffs have failed to allege discrimination

under section 1981. Defendants argument is flawed because it ignores the damage caused by discriminatory behavior. As noted above in part A, Defendant used one standard for Plaintiffs, two AfricanAmerican gentlemen, and a completely different and less burdensome standard for the Caucasian comparator. Discrimination is established when similarly situated individuals are treated differently. Moreover, federal courts have addressed arguments very similar to Defendants argument and noted that section 1981 should not be read that narrowly. For example the U.S. Courts of Appeal for the Eighth Circuit recognized that section 1981s protections extend to all phases and incidents of the contractual relationship. Green v. Dillards, Inc., 483 F.3d 533 (8th Cir. 2007)(citing Rivers v. Roadway Express, Inc., 511 U.S. 298, 302, 114 S.Ct. 1510 (1994)). The court added the making . . . of contracts and the language of section 1981 is itself very broad. Id. (citing Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 437 (4th Cir. 2006)). The Eighth Circuit further observed that section 1981 reaches beyond the four corners of a contract into the contracting process. Id. (citing Garrett v. Tandy Corp., 295 F.3d 94, 100 (1st Cir. 2002)). A plaintiff can show that he is attempting to make a contract when he has demonstrated an interest in specific items that a defendant has held out for sale. Id. (citing Morris v. Office Max, Inc., 277 F.3d 743, 752 (5th Cir. 2001)). Plaintiffs have satisfied the requirements set forth above. By arriving at the dealership they demonstrated an interest in the vehicles that Defendant held out for sale. As Plaintiffs approached the Hyundai Genesis they entered into another step or phase of the contractual relationship. Plaintiffs entered into the third phase of the contractual

relationship when they asked to test drive the vehicle. It was at that point that Defendant threw an artificial barrier or hurdle in the contract relationship by requiring Plaintiffs to submit to a credit check prior to test driving the vehicle. This was not a requirement that Defendants set for their Caucasian customers. Because Defendant threw up this artificial barrier Plaintiffs took offense and left the dealership. At this stage, Defendant wants to cry foul because Plaintiffs did not enter a contract. Defendants argument begs the question how much abuse must Plaintiffs endure to have a viable claim of discrimination. In Defendants world to insult Plaintiffs simply because they are African Americans is not enough. In Defendants world, Plaintiffs must run through a gauntlet of offensive treatment before they can present their claim to a jury. Fortunately, we do not live in Defendants world as this would require us to breathe new life into Plessy v. Ferguson, 163 U.S. 537 (1896)(anachronistic decision upholding the constitutionality of state laws requiring racial segregation in private businesses). Simply put, discrimination involves unequal treatment on the basis of race. Plaintiffs have successfully demonstrated that Defendant subjected them to discriminatory treatment. Defendant should not escape summary judgment simply because Plaintiffs refused to dismiss Defendants offensive conduct and left the dealership. Accordingly, Defendants Motion for Summary Judgment should be denied. WHEREFORE, for all of the foregoing reasons, the Court should enter an Order denying Defendants Motion for Summary Judgment and further granting Plaintiffs Motion to Set Case for Trial and placing this case on the Courts January trial term. Dated this 6th day of December, 2011.

Respectfully Submitted,

_________________________________ RICHARD L. BRADFORD Florida Bar No.: 0068497 BRADFORD AND BRADFORD, P.A. 150 East Bloomingdale Ave., Ste. 196 Brandon, FL 33511 Telephone: (813) 413-2402 Facsimile: (813) 413-2425 e-mail: rich@bradfordfirm.com Attorney for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail on this 6th day of December 2011 to: Bradley R. Hall, Esq. Ford & Harrison LLP 101 E. Kennedy Blvd. Suite 900 Tampa, FL 33602 _________________________________ Attorney