Opinion
Case No. 3:18-cv-00025-TC
11-13-2018
DAVID RAY ARNOLD, Plaintiff, v. ARAMARK CORPORATION; SANDI DOE, Aramark Representative; JOHN DOE #1; JOHN DOE #2; JOHN DOE #3, Defendants.
FINDINGS AND RECOMMENDATION :
Plaintiff, an inmate at Deer Ridge Correctional Institution, paid the full filing fee and brought an action under state law seeking monetary damages arising from defendants' alleged false advertising. Defendants now move for dismissal under Federal Rule of Civil Procedure 12(b)(6) on grounds that plaintiff fails to state a claim. For the reasons explained below, defendants' motion should be granted and this case should be dismissed.
BACKGROUND
Plaintiff's claims arise from the purchase of "iCare" packages on Aramark Corporation's website during plaintiff's incarceration at the Umatilla County Jail. According to plaintiff's allegations, family members of inmates may order and purchase iCare packages to provide inmates with "a gift or extra commissary in the jails." Compl. ¶¶ 5,6 (ECF No. 1). Customers who order an iCare package are charged a shipping and handling fee and informed that the iCare package will be delivered the following Tuesday. Id. ¶ 8. Plaintiff alleges that defendant "Sandi," who allegedly works for Aramark, prints a receipt of the items and fills the order from the commissary room located at the Umatilla County Jail. Id. ¶ 11.
Plaintiff alleges that the iCare packages he received either omitted several purchased items, substituted different items, or included expired items. Id. ¶¶ 14, 18-19, 21. In particular, plaintiff alleges that his iCare "sweet tooth package" had an expired Butterfinger candy bar and other missing candy items. Id. at ¶ 20. Plaintiff allegedly sent a grievance about the expired and missing items to jail personnel and talked to Sandi. Compl. ¶ 22. Sandi apologized to plaintiff and replaced the "sweet tooth" iCare package. Id. ¶¶ 22-24. Plaintiff also alleges that no packages are actually shipped to the inmate so as to require a shipping or handling fee, and that Sandi delivers the packages at her convenience rather than by the following Tuesday. Id. ¶ 12.
In his Complaint, plaintiff alleges that his family members purchased the iCare packages at issue. After defendants correctly argued that plaintiff has no standing to assert claims based on products he did not purchase, he maintains that the packages were purchased by him through his "agent" family members. Regardless, plaintiff's allegations do not state a claim.
Based on these allegations, plaintiff asserts claims of 1) false advertising, 2) embezzlement, 3) theft of property, and 4) selling outdated food. Essentially, plaintiff alleges that defendants engaged in false advertising by failing to provide the items described on their website and failing to deliver iCare packages by the following Tuesday. Further, plaintiff contends that defendants committed embezzlement and theft of property by charging for "shipping and handling" when the items were not actually shipped to him at the Umatilla County Jail. Plaintiff seeks $1,500,000 in damages.
DISCUSSION
Defendants move for dismissal on grounds that plaintiff fails to state a claim. Under Rule 12(b)(6), a complaint is construed in favor of the plaintiff, and its factual allegations are taken as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). The court need not accept as true "conclusory" allegations, unwarranted deductions of fact, or unreasonable inferences. Id. Instead, "for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). In pro se cases particularly, the court must construe the complaint liberally and afford the plaintiff "the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). "Unless it is absolutely clear that no amendment can cure" defects in the complaint, "a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).
In their reply brief, defendants assert for the first time that plaintiff's claims should be dismissed for failure to exhaust administrative remedies under the Prison Litigation Reform Act (PLRA). 42 U.S.C. § 1997e(a). However, the PLRA exhaustion requirement explicitly applies to federal law claims rather than state law claims, and defendants must raise the issue of exhaustion in a motion for summary judgment and not at the pleading stage. Id.; Albino v. Baca, 747 F.3d 1162, 1168-69 (9th Cir. 2014).
Plaintiff alleges that defendants' website falsely advertised that the iCare packages would contain specific items and be delivered on a certain day. Under Oregon law, plaintiff arguably could bring a claim for false advertising under the Unlawful Trade Practices Act (UTPA) or as common law claim of fraudulent misrepresentation. The UTPA "is a statutory scheme that provides for a civil right of action for loss of money or property as a result of the willful use or employment of an unlawful trade practice," and it generally prohibits the false representation or false advertising of goods and services. Weston v. Camp's Lumber & Bldg. Supply, Inc., 205 Or. App. 347, 358-59, 135 P.3d 331 (2006); see Or. Rev. Stat. § 646.608(e),(i). Similarly, to state a claim for fraudulent misrepresentation, plaintiff must allege that: 1) defendants "made a material misrepresentation that was false"; 2) defendants "did so knowing that the representation was false"; 3) defendants "intended the plaintiff to rely on the misrepresentation"; 4) plaintiff "justifiably relied on the misrepresentation"; and 5) plaintiff "was damaged as a result of that reliance." Strawn v. Farmers Ins. Co., 350 Or. 336, 352, 258 P.3d 1199 (2011).
Critically, plaintiff's allegations do not remotely suggest that defendants advertised the iCare packages with the knowledge and intent that packages would not contain certain items and would be delivered in an untimely manner. In fact, plaintiff admits that after he complained about the expired Butterfmger and missing candy items, Sandi apologized and replaced them. Compl. ¶¶ 22-24. At most, plaintiff alleges poor customer service on the part of Sandi or other unidentified Aramark employees by either failing to provide the correct items or failing to keep sufficient items in stock at the Umatilla County Jail. While regrettable, poor customer service does not support a cause of action for fraud under these circumstances. As defendants point out, "the mere failure to keep a promise is not actionable fraud." Defs.' Motion at 15; see also Pelletier v. Pelletier, 29 Or. App. 717, 721, 565 P.2d 388 (1977) ("Fraud cannot, however, be predicated solely upon the failure to perform a promise to do something in the future.").
In his response to defendants' motion, plaintiff invokes the Federal Trade Commission Act, 15 U.S.C. § 51 and the Lanham Act, 15 U.S.C. § 1125(a) to support his false advertising claim. Plaintiff has no private right of action under the Federal Trade Commission Act, Dreisbach v. Murphy, 658 F.2d 720, 730 (9th Cir. 1981), and he does not allege a viable claim under the Lanham Act. See Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012) (a plaintiff must show resulting injury from a false statement "either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products).
Similarly, plaintiff's allegations regarding the shipping and handling charges do not state a claim for false advertising or fraudulent misrepresentation. Plaintiff alleges that purchasers of iCare packages are charged for "shipping and handling" even though the items are stocked out of the jail's commissary and not shipped to the jail. However, the billing provided by plaintiff indicates that the purchaser was charged for "handling," not shipping. Pl.'s Ex. 8 (ECF No. 18-1). Regardless, handling costs incurred in preparing the packages are fairly represented as costs of "shipping and handling."
Plaintiff further alleges that defendants' conduct constitutes embezzlement and theft. However, embezzlement and theft are criminal offenses rather than civil causes of action, and plaintiff has no private right to enforce criminal statutes. Further, even if the court construed plaintiff's claims as alleging the tort of conversion - the equivalent of civil theft - his allegations fail to state a claim. Spillino v. Taylor, 280 Or. App. 700, 702 384 P.3d 169 (2016) (stating that conversion is "an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel").
As defendants note, actions constituting embezzlement are proscribed in the Oregon criminal theft statute. Or. Rev. Stat. § 164.015; State v. Medina, 357 Or. 254, 270, 355 P.3d 108 (2015) ("In 1971, the legislature repealed the various forms of larceny and embezzlement and replaced them with the offense of theft."). --------
Finally, I find that no amendment will cure the noted deficiencies. Plaintiff does not allege a viable federal cause of action and must rely on diversity jurisdiction, which requires an amount in controversy of $75,000 or more. 28 U.S.C. § 1332(a) (federal courts have jurisdiction over state law claims when the plaintiff and the defendant are citizens of different states and the amount in controversy exceeds $75,000). Even if plaintiff amended his claims to allege a cognizable state law tort or contract claim, any claim of damages rising to the jurisdictional level of $75,000 - based on a few missing items of candy, chips, or soda - is so "fanciful" as to be frivolous. Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also Russell v. Access Securepak, Inc., 2007 WL 4170756, at *2 (E.D. Cal. Nov. 20, 2007) (finding no diversity jurisdiction where the plaintiffs "have not alleged conduct by defendants which would support a punitive damages award that is approximately 1,500 times the amount of actual damages" of $164.90).
CONCLUSION
Defendants' Motion to Dismiss (ECF No. 15) should be GRANTED and this action should be DISMISSED. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order.
The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 13 day of November, 2018.
/s/_________
Thomas Coffin
United States Magistrate Judge