Opinion
C. A. 4:22-1726-JD-KDW
07-11-2023
Ishmael Jamal Brown, Plaintiff, v. R.J. Reynolds Tobacco Company, Inc.; Brown & Williamson Tobacco Corporation; Lorillard Tobacco Company; and Phillip Morris, U.S.A., Inc., Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Ishmael Jamal Brown, Plaintiff, is a state prisoner proceeding pro se and in forma pauperis. He brings this action seeking damages against Defendants. Plaintiff is presently incarcerated by the South Carolina Departments of Corrections at Broad River Correctional Institution. Plaintiff alleges Defendants have committed wire, radio, and television communication fraud, as well as acted in violation of several other state statutes. On August 31, 2022, Defendant R. J. Reynolds Tobacco Company, Inc., on behalf of itself and its successors-Defendants Brown & Williamson Tobacco Corporation and Lorillard Tobacco Company (hereinafter, “Defendants”), filed a Motion to Dismiss Plaintiff's Complaint. ECF No. 22. Plaintiff filed his Response on October 7, 2022. ECF No. 26. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e), D.S.C. Because this Motion is dispositive, a Report and Recommendation (“R&R”) is entered for the court's review.
Phillip Morris, U.S.A., Inc. was also named as a defendant in this case. However, there is no indication on the docket that this Defendant has been served. The Complaint was filed on June 2, 2022. Rule 4(m) of the Federal Rules of Civil Procedure requires a court to dismiss an action against a defendant who has not been served within 90 days after the complaint has been filed. Plaintiff has not shown good cause as to why Phillip Morris, U.S.A., Inc. has not been served. The undersigned therefore recommends dismissing Phillip Morris, U.S.A., Inc. without prejudice.
I. Factual Background
Plaintiff brings this lawsuit against Defendants, alleging they are liable for damages flowing from Plaintiff's smoking habit that began in 1992. As noted by Defendants, Plaintiff's Complaint is similar to several other pro se lawsuits filed in the past year by inmates currently incarcerated at the Broad River Correctional Institution. See ECF No. 22-1 at 1, n. 1. According to the allegations in Plaintiff's Complaint, Plaintiff was born on March 23, 1973. ECF No. 1 at 7. Plaintiff alleges his mother died from lung cancer caused by smoking cigarettes. ECF No. 1 at 7. Plaintiff alleges that from 1992 to 2000, he smoked Camel unfiltered, regular cigarettes. ECF No. 1 at 7. Plaintiff alleges he smoked Kool menthol filtered cigarettes from 1992 to 2000. Id. Plaintiff alleges he smoked Newport menthol filtered 100's cigarettes from 1992 through 2007. Id. Plaintiff alleges he smoked Marlboro menthol filtered light cigarettes from 1992 through 2008. Id. Plaintiff alleges he began smoking at the age of 16 and smoked for approximately 28 years. Id. Plaintiff alleges that Defendants knowingly manufactured, designed, promoted, marketed, advertised and sold its cigarettes to Plaintiff, and he subsequently became addicted to smoking. Id. at 8-10. Plaintiff alleges that Defendants “foreseeably knew” and were aware that their tobacco products contained “hazardous constituents or carcinogenic constituents” that were harmful to the health and welfare of the American public. Id. at 10.
If Plaintiff was born in 1973 and began smoking at 16 years old, then he would have begun smoking in 1989.
Within his Complaint, Plaintiff outlines the history of Defendants' advertisements and statements made to the American public regarding its tobacco products. Id. at 13-29. Plaintiff alleges Defendants published or advertised via newspapers, magazines, and television, that its tobacco products did not have any adverse health effects. Id. at 13. The last known date Plaintiff alleges these statements were made was March 10, 2004, wherein Plaintiff alleges Defendants issued a press release as part of a Kool Mixx campaign, attempting to target and attract youth ages 16 to 25 to smoke its Kool brand of cigarettes. Plaintiff alleges that over the years he read, observed, and detrimentally relied upon these advertisements and statements by continuing to purchase and smoke cigarettes. ECF No. 1 at 19. Plaintiff alleges that as a result of smoking cigarettes, he suffered injuries including, but not limited to, chronic coughing, high blood pressure, kidney failure, tooth loss, blurry vision, throat irritation and scratching, loss of enjoyment of life, shortage of breath, lung infections, and the need for a kidney transplant. ECF No. 1 at 21.
By 2004, Plaintiff would have been 31 years old-outside of this target age range.
As if cognizant of the statute of limitations for such claims, Plaintiff alleges in his Complaint that the court should invoke the doctrine of equitable estoppel to allow his claims to go forward. Plaintiff alleges that due to Defendants' purposeful concealment of information to the American public, Plaintiff only recently discovered (on or about June 10, 2020) the harmful nature of cigarettes. ECF No. 1 at 27. Plaintiff specifically alleges that Defendants “publicly admitted” on or about this date that they intentionally deceived the American public. ECF No. 1 at 32. Plaintiff alleges that he “could not have known” the truth about the dangers of cigarettes because Defendants “used their expert and superior knowledge” to prevent members of the American public, including Plaintiff, from knowing that tobacco products were linked to causing lung cancer “and other related disease.” ECF No. 1 at 28-29. Plaintiff brings several causes of actions against Defendants, including: intentional fraud; intentional fraud and/or fraudulent misrepresentation; intentional fraudulent inducement; civil conspiracy to commit fraud and concealment; negligent failure to warn; and wire fraud pursuant to 18 U.S.C. § 1343.
II. Standard of Review
Defendants filed this Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Within the Motion, Defendants also cite to Federal Rule of Civil Procedure 9(b), which provides a heightened pleading requirement for allegations of fraud. “A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Fed.R.Civ.P. 12(b)(6).
Federal Rule of Civil Procedure 9(b) provides: “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.”
The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citing Twombly, 550 U.S. at 556)); see also Tobey v. Jones, No. 11-2230, 2013 WL 286226, at *3 (4th Cir. Jan. 25, 2013) (affirming district court's denial of Rule 12(b)(6) motion, noting that Twombly reiterated that a plaintiff “was not required to state [] precise magical words” to plausibly plead claim). When ruling on a motion to dismiss, the court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)).
Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Pro se complaints are to be construed liberally. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). While the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the court is not required to recognize “obscure or extravagant claims.” Weller v. Dep't of Soc.Servs., 901 F.2d 387, 391 (4th Cir. 1990). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider “documents incorporated into the complaint by reference and matters of which a court may take judicial notice.” Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The undersigned notes that Plaintiff attached supporting documents to his Response, which appear to be printouts of news articles and a recent court opinion concerning the dangers of smoking. ECF No. 26-1. The undersigned does not find that these documents were incorporated into the Complaint or integral to the analysis of this Motion to Dismiss. Accordingly, the undersigned has not considered these documents in this analysis.
III. Analysis
1. Negligent Failure to Warn
Defendants argue that, to the extent Plaintiff seeks to bring a negligence claim based upon an alleged “failure to warn” the public, including himself, about the health risks of cigarette smoking, that claim is preempted by the Public Health Cigarette Smoking Act of 1969 (the “PHCS Act”). ECF No. 22-1 at 4. Alternatively, Defendants argue those claims are time barred. Plaintiff predicates this negligence claim upon an alleged duty of Defendants to exercise reasonable care under the South Carolina Unfair Trade & Commercial Practices Act. ECF No. 1 at 37-38. The congressional intent behind the Act was to “establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health.” 15 U.S.C. § 1331. Under the PHCS Act, it is unlawful “for any person to manufacture, package, sell, offer to sell, distribute, or import for sale or distribution within the United States any cigarettes the package of which fails to bear” an adequate warning label. 15 U.S.C. § 1333(a)(1). The PHCS Act further provides that, “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” 15 U.S.C. § 1334(b).
The PHCS Act, enacted in 1969, amended the Federal Cigarette Labeling and Advertising Act (the “Cigarette Labeling Act”). The PHCS Act re-enacted the Cigarette Labeling Act, along with several amendments. Congress did not amend or replace 15 U.S.C. § 1331, which is the provision that sets out Congress' policy determination regarding the regulation of tobacco products. Brown & Williamson Tobacco Corp. v. Food & Drug Admin., 153 F.3d 155, 173 (4th Cir. 1998), aff'd, 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).
The United States Supreme Court has determined that this statute preempts state law failure to warn claims arising out of marketing or advertising cigarettes. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 524 (1992); see also Waterhouse v. R.J. Reynolds Tobacco Co., 162 Fed.Appx. 231, 235 (4th Cir. 2006) (explaining in a footnote that in a similar case, a post-July 1, 1969 negligence claim based on a failure to warn was preempted by the Cigarette Labeling Act). Plaintiff responds that his claims are not predicated upon advertising or promotion but are instead based upon an obligation not to deceive, fraudulently induce, mislead, represent, or conspire to commit fraud. ECF No. 26 at 5-6. However, in reading Plaintiff's Complaint, it is clear that he asserts Defendants marketed and advertised cigarettes in an effort to induce the American public to smoke. Plaintiff alleges that Defendants had a duty to “exercise reasonable care . . . to knowingly make truthful statements of a material facts to the S.C. forum state members of the public.” ECF No. 1 at 38. Moreover, Plaintiff does not allege that these Defendants failed to include the government-mandated warnings on its products. While Plaintiff's other claims, including fraudulent inducement and fraudulent misrepresentation may be based upon this alleged duty not to conceal information or deceive the public, the undersigned agrees with Defendants that Plaintiff's negligent failure to warn and/or negligence claim is preempted and should be dismissed.
2. Negligence and Fraud/Fraudulent Misrepresentation/Fraud in the Inducement Claims
Defendants next argue that Plaintiff's fraud-based claims, as well as his other negligence claims, are barred by the applicable three-year statute of limitations in South Carolina. In South Carolina, the statute of limitations for personal injury claims based on fraud or negligence is three years. S.C. Code Ann. §§ 15-3-530(5), 15-3-530(7). The statute of limitations for these claims begins to run after a plaintiff knew or should have known through the exercise of reasonable diligence that he or she had a cause of action. S.C. Code Ann. § 15-3-535 (emphasis added). In Burgess v. American Cancer Soc., SC. Div., Inc., the court explained, “[a] party cannot escape the application of this rule by claiming ignorance of existing facts and circumstances, because the law also provides that if such facts and circumstances could have been known to the party through the exercise of ordinary care and reasonable diligence, the same result follows.” 386 S.E.2d 798, 799, 300 S.C. 182 (S.C. Ct. App. 1989) (emphasis in original). However, for fraud claims, the cause of action does not accrue until the discovery by the aggrieved party of the facts constituting the fraud claim. S.C. Code Ann. § 15-3-530(7).
Ordinarily, a statute of limitations defense must be raised as an affirmative defense; thus, a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) generally does not reach the merits of an affirmative defense, such as an argument that a plaintiff's complaint is time-barred. However, in the rare circumstances where facts sufficient to rule on this affirmative defense are alleged and are clear on the face of the complaint, the defense may be considered. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). The undersigned finds this to be such a case.
As to Plaintiff's negligence/gross negligence claim, Plaintiff alleges that Defendants had a duty to exercise reasonable care to “knowingly make truthful statements of a material facts to the S.C. forum State members of the public, including Plaintiff.” ECF No. 1 at 38. Therefore, it appears Plaintiff seeks to bring a negligent misrepresentation claim. To state a claim for negligent misrepresentation, a plaintiff must allege that: (1) the defendant made a false representation to the plaintiff; (2) the defendant had a pecuniary interest in making the statement; (3) the defendant owed a duty of care to see that he communicated truthful information to the plaintiff; (4) the defendant breached that duty by failing to exercise due care; (5) the plaintiff justifiably relied on the representation; and (6) the plaintiff suffered a pecuniary loss as the proximate result of his reliance upon the representation. Hand v. SunTrust Bank, Inc., No. 6:11-CV-00501-JMC, 2012 WL 3834859, at *3 (D.S.C. Sept. 4, 2012) (citing Redwend Ltd. P'ship v. Edwards, 581 S.E.2d 496, 504, 354 S.C. 459, 473 (S.C. Ct. App. 2003)). In South Carolina, to state a claim for negligent misrepresentation, one must show that a defendant owed a duty of care to communicate truthful information. Pitten v. Jacobs, 903 F.Supp. 937, 951 (D.S.C. July 6, 1995). Liberally construing Plaintiff's Complaint, Plaintiff does not allege that any action on the part of Defendants occurred within the three years of filing his case sufficient to support this cause of action. According to the Complaint, the last statement Defendants allegedly made inducing the American public to smoke occurred on May 10, 2004, and the latest advertisement campaign running in news outlets ran from May 17, 1950, until August 10, 2007. Moreover, as pointed out by Defendants, it is equally unclear when Plaintiff's injuries, which he attributes solely to his smoking habit, began. While Plaintiff indicates he should be entitled to some tolling period, he provides no support for this contention, nor does he allege that his injuries did not begin until after June 2, 2019, three years from the filing of his Complaint. Nor does Plaintiff allege that Defendants somehow induced him into delaying the filing of a lawsuit. In his Response, Plaintiff generally asserts that Defendants “thwarted” or “prevented” American consumers, including Plaintiff, from “exercising a reasonable duty of diligence to ‘know' to timely file,” but Plaintiff does not allege what this means or what conduct on the part of Defendants thwarted him from initiating a lawsuit. In his Response, Plaintiff also vaguely asserts that from 1957 to 2004, Defendants “intercepted” and “interfered” in some way with the Surgeon General's duties and public statements to forewarn the public about the nature of smoking. ECF No. 26 at 9, 23. Finally, Plaintiff also makes vague assertions related to a contract between Defendants and Liggett Group, Inc. around January 12, 1999, in which he alleges that Defendants sought to purchase the company “just to ‘remove' the warnings and the addictiveness from the package label.” ECF No. 26 at 24. Such threadbare recitals of this cause of action simply will not suffice to support a claim for relief. Iqbal, 556 U.S. at 678. Accordingly, Plaintiff's negligence claims should be barred by the three-year statute of limitations.
Plaintiff does not allege that he heard or was even aware of each and every statement he references in his Complaint. For example, he references an advertisement that ran on or about December 21, 1972, prior to his birth. However, for argument's sake and for the purposes of this Report and Recommendation, the undersigned assumes Plaintiff was aware of or saw at least some of the advertisements mentioned in his Complaint.
In his Response, Plaintiff cites to a time frame of July 15, 1957 to November 1959 as to when Defendants took “affirmative steps” to interfere with the Surgeon General at that time. ECF No. 26 at 14. Plaintiff was not born until 1973.
As to Plaintiff's fraud claims, the undersigned notes that Plaintiff repeats the same standard for both his intentional fraud claims and his fraudulent misrepresentation claims. That is, he sets forth the standard for establishing a cause of action for fraudulent inducement. Under South Carolina law, to establish fraud in the inducement, one must show:
(1) a representation; (2) its falsity; (3) its materiality; (4) knowledge of the falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance upon the truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury.Anthony v. Atl. Grp., Inc., 909 F.Supp.2d 455, 483 (D.S.C. 2012) (citing Redwend Ltd. P'ship v. Edwards, 3581 S.E.2d 496, 503-04, 54 S.C. 459 (S.C. Ct. App. 2003)). Plaintiff contends that these Defendants made false representations concerning the health impacts of their tobacco products, either recklessly or knowingly, with the intent to induce the American public to rely on these representations to purchase their tobacco products. Plaintiff further contends that he was ignorant of the falsity of these claims until June 10, 2020, when Defendants “disclosed” to the American public, including Plaintiff, that they lied about the harmful nature of their products.
Plaintiff alleges that due to the actions of Defendants, it was unknown to him that smoking cigarettes was harmful until June 10, 2020. In his Response, Plaintiff generally alleges that Defendants “clandestinely engaged in a joint concerted action to agree, to keep its ‘known dangers concealed' from the American public.” ECF No. 26 at 7. At this stage of the litigation, assuming Plaintiff's allegations are true, the undersigned cannot definitively find that Plaintiff's allegations sounding in fraud are time-barred based on the allegations within the Complaint. However, the undersigned recommends dismissing Plaintiff's fraud claims because he fails to state a claim for relief. Fraud may not be presumed; rather it must be shown by “clear, cogent, and convincing evidence.” Brown v. Stewart, 557 S.E.2d 676, 680, 348 S.C. 33 (S.C. Ct. App. 2001). Further, Federal Rule of Procedure 9(b) requires a heightened pleading standard for claims based on fraud. Pursuant to this Rule, a party must “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). As an initial matter, courts have long recognized that smoking was generally known to be dangerous by 1978, at which time Plaintiff would have been approximately five years old. Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir. 1996) (explaining that the “dangers of cigarette smoking have long been known to the community.”). Further, as aptly pointed out by Defendants, every pack of cigarettes Plaintiff smoked would have contained a warning label, warning Plaintiff about the dangers of smoking cigarettes. See 15 U.S.C. § 1331. It is implausible for Plaintiff to allege that he was ignorant to the dangers of smoking cigarettes when the product itself provided such a warning.
Specifically, Plaintiff states in his Response that he did not initiate a lawsuit on June 10, 2020, when he allegedly learned that smoking was harmful, because he “could not believe” what he heard. ECF No. 26 at 20.
Indeed, Plaintiff alleges that his own mother died of lung cancer from smoking cigarettes, albeit Plaintiff does not state the year his mother died.
Moreover, Plaintiff's fraud claims are conclusory and fail to meet the pleading standard found in Federal Rule of Civil Procedure 9(b). Plaintiff's allegation that Defendants intended for their false representations to be acted upon by Plaintiff are insufficient to support a finding that he pled these fraud claims with particularity. These allegations about the general corporate statements made in advertisements and on television are also insufficient to allow Defendants to determine which statements Plaintiff relies upon as having personally been aware of to allege these claims. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999) (explaining that one purpose of Rule 9(b) is to ensure a defendant has sufficient information to formulate a defense based on the conduct Plaintiff purports to allege supports the basis of his or her claims). Specifically, Plaintiff makes a blanket reference in these causes of action that he “adopts and incorporates the factual allegations in Paragraph(s) 22 through 76” for each fraud claim. See ECF No. 1 at 31-35. However, these paragraphs include statements that, put simply, Plaintiff could not plausibly have “relied upon” or acted in “reasonable” reliance upon in deciding to smoke. For example, Plaintiff alleges that in March of 1982, when he was 9 years old, the C.E.O. of Defendant R.J. Reynolds went on national television to state there was no proof cigarettes were addictive. ECF No. 1 at 14. As another example, Plaintiff alleges that in 1972, prior to his birth, and 1974, when Plaintiff was one years old, several advertisement campaigns were created to induce the younger American public to smoke. ECF No. 1 at 15. In fact, many of the statements he alleges he “relied upon” to purchase and smoke cigarettes were made years before Plaintiff ever began smoking. These statements simply cannot be the basis of a fraud claim, or be considered to have been pled with any particularity, when Plaintiff alleges he began smoking in 1992, and again, by the time Plaintiff began smoking, every cigarette pack contained a required warning label that was in the consumer's view. Thus, for the reasons outlined above, the undersigned recommends dismissing Plaintiff's fraud claims (styled as intentional fraud, intentional fraudulent misrepresentation, and fraud in the inducement) for failure to state a claim upon which relief can be granted.
Though not specifically addressed as a cause of action, the undersigned recommends dismissing Plaintiff's civil conspiracy to commit fraud and concealment claim, as well. Under South Carolina law, the elements of a cause of a civil conspiracy claim are: (1) a combination of two or more persons; (2) for the purpose of injuring the plaintiff; and (3) which causes the plaintiff special damage. BCD LLC v. BMW Mfg. Co., LLC, 360 Fed.Appx. 428, 437 (4th Cir. 2010). In the Complaint, Plaintiff alleges Defendants engaged in a “concerted action . . . to commit fraud.” ECF No. 1 at 36. The elements Plaintiff lists appear to be in line with a criminal conspiracy cause of action, which Plaintiff has no standing to bring. Nevertheless, because the undersigned recommends finding Plaintiff failed to state a claim for relief that these Defendants engaged in fraud, the undersigned recommends dismissing any alleged civil conspiracy to commit fraud, as well.
3. Radio/TV/Wire Fraud
Defendants next argue that Plaintiff's cause of action for wire fraud should be dismissed for failure to state a claim for relief. Within his Complaint, Plaintiff cites to a criminal statute, 18 U.S.C. § 1341, 1342, 1343 et seq. as the law purportedly violated by Defendants. However, Plaintiff does not have standing to pursue criminal violations against Defendants. In his Response, Plaintiff does not oppose Defendants' argument that this claim should be dismissed. Instead, Plaintiff states that he “concedes and agrees” with Defendants. Plaintiff alternatively seeks to amend or re-plead this cause of action. First, Plaintiff provides no proposed amended allegations that he seeks to bring against Defendants under this cause of action. Second, because Plaintiff seeks to bring a cause of action pursuant to a criminal statute, the undersigned finds any additional facts to be futile.
Additionally, Defendants argue that even were Plaintiff attempting to pursue a civil wire fraud claim, this claim would also fail. The Racketeer Influenced and Corrupt Organizations Act (“RICO”) statute creates civil liability for defendants who engage in a “pattern of racketeering activity.” 18 U.S.C. § 1962, 1964. Racketeering activity can include wire fraud. 18 U.S.C. § 1961. Civil wire fraud claims are subject to a heightened pleading standard. See GE Investment Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir. 2001); Mitchell Tracey v. First American Title Ins. Co., 935 F.Supp.2d 826, 844 (D. Md. 2013) (“When mail and wire fraud are asserted as predicate acts in a civil RICO claim, each must be pled with particularity”). Here, Plaintiff fails to plausibly allege any set of facts to support a claim that Defendants were involved in “racketeering activities.” Further, Defendants argue, and Plaintiff does not contest, that Plaintiff makes no allegations that Defendants intended to use “wire communication” to defraud Plaintiff. Accordingly, the undersigned recommends dismissing this cause of action against Defendants.
IV. Recommendation
The undersigned has carefully considered the arguments made by all parties in this case. After considering these arguments, the undersigned recommends granting Defendants' Motion to Dismiss, ECF No. 22. Plaintiff's Complaint would therefore be dismissed in its entirety against Defendant R.J. Reynolds Tobacco Company on behalf of itself, individually, and as successor-by-merger to Lorillard Tobacco Company and as successor-in-interest to Brown & Williamson Tobacco Corporation (the “Defendants”). Additionally, as noted earlier, the undersigned recommends dismissing Phillip Morris USA, Inc. pursuant to Federal Rule of Civil Procedure Rule 4(m).
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).