United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
enter into agreements with vendors for all types of goods and
services, usually through a bidding process. Do they violate
the First Amendment rights of competing vendors-who fully
participated in the bid process, but were not chosen-when
they exclude them from offering their services at
school-organized events held on school grounds?
law is clear that government entities have the ability to
limit speakers based on identity or subject matter in limited
public forums as long as the restrictions are reasonable.
Because Plaintiff West Michigan Band Instruments, LLC has not
pleaded facts that could give rise to a violation of its
First Amendment rights, the Court will grant the
Defendants' motion to dismiss.
a music vendor, engaged in the business of selling and
renting out band instruments and providing related services
to students within many school districts across Western
Michigan. In the past, it has done business with families
from the Coopersville Area Public Schools (CAPS), the primary
Defendant in this action.
alleges that in April of 2017, CAPS issued an Invitation to
Bid (ITB) to band vendors, which informed the vendors that
CAPS would select a single business to participate in the
Parent Night at the start of the next school year. WMBI
protested to the school superintendent, Veldman, that the
policy was unlawful. CAPS' counsel responded that it
could lawfully exclude vendors other than its chosen bidder.
submitted a bid in response to the ITB. But it was not
chosen-Meyer Music, a competitor of WMBI, was. From these
scant facts, WMBI claims that CAPS violated its First and
Fourteenth Amendment rights.
complaint must contain a short and plain statement of the
claim showing how the pleader is entitled to relief.
Fed.R.Civ.P. 8(a)(2). The complaint need not contain detailed
factual allegations, but it must include more than labels,
conclusions, and formulaic recitations of the elements of a
cause of action. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). A defendant bringing a motion to
dismiss for failure to state a claim under Rule 12(b)(6)
tests whether a cognizable claim has been pled in the
complaint. Scheid v. Fanny Farmer Candy Shops, Inc.,
859 F.2d 434, 436 (6th Cir. 1988).
survive a motion to dismiss under Rule 12(b)(6), the
plaintiff must provide sufficient factual allegations that,
if accepted as true, are sufficient to raise a right to
relief above the speculative level, Twombly, 550
U.S. at 555, and the “claim to relief must be plausible
on its face” Id. at 570. “A claim is
plausible on its face if the ‘plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'” Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting
Twombly, 550 U.S. at 556).
considering a motion to dismiss, a court must accept as true
all factual allegations, but need not accept any legal
conclusions. Ctr. for Bio-Ethical Reform, 648 F.3d
at 369. However, “a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed
factual allegations”; rather, “it must assert
sufficient facts to provide the defendant with
‘fair notice of what the . . . claim is and the grounds
upon which it rests.” Rhodes v. R&L Carriers,
Inc., 491 Fed.Appx. 579, 582 (6th Cir. 2012) (citing
Twombly, 550 U.S. at 555) (emphasis added).
First Amendment Framework
First Amendment prohibits the government from
“abridging the freedom of speech.” U.S. Const.
Amend. I. Simply because the government may own a piece of
property, however, does not mean that property is open to all
types of expressive activity at all times. “[T]he
State, no less than a private owner of property, has power to
preserve the property under its control for the use which it