Opinion
C/A 2:22-cv-01418-RMG-KFM
10-31-2022
Sean Darnell Nelson, Plaintiff, v. R.J. Reynolds Tobacco Company, Inc., Brown & Williamson Tobacco Corporation, Lorillard Tobacco Company, Phillip Morris U.S.A., Inc., Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on May 2, 2022 (doc. 1).
On August 12, 2022, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 20). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 23-24). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
The plaintiff alleges seven causes of action, with only one based upon federal law (with the others based upon state law and brought in this court based upon diversity jurisdiction) (doc. 1). The claims include: (1) intentional fraud; (2) intentional fraudulent misrepresentation; (3) fraud in the inducement; (4) civil conspiracy to commit fraud; (5) negligent failure to warn; (6) negligence/gross negligence; and (7) radio, television, and wire communication fraud (id.). Of note, for ease of reference the defendants will be referenced as follows: R.J. Reynolds Tobacco Company, Inc., (hereinafter “R.J.”), Brown & Williamson Tobacco Corporation (hereinafter “B&W”), Lorillard Tobacco Company (hereinafter “Lorillard”), and Phillip Morris U.S.A., Inc. (hereinafter “PM”).
The plaintiff alleges that his parents smoked when he was born and that he began smoking in 1978 at the age of 9 (id. at 6-7, 38-39). From 1978 to 1982 he smoked Kool cigarettes (produced by B&W) (id.). By age 13 in 1982, he began smoking Newport Menthol cigarettes until 1997 (produced by Lorillard) (id. at 7). In 1997 the plaintiff began smoking Marlboro menthol cigarettes until 2001 (produced by PM) (id.). Around 1997 through 2008, the plaintiff smoked Winston Menthol cigarettes, Salem, and Camel cigarettes (produced by R.J.) while incarcerated at SCDC (id. at 7). The plaintiff also alleges that he smoked Doral and Buglers (roll your own) cigarettes (id.). It appears that the plaintiff stopped smoking in 2008, when SCDC became non-smoking to promote a healthier environment for inmates (id.).
The plaintiff appears to assert 28 total allegations of false representations by the defendants (id. at 14-24). The plaintiff alleges that in 1954 all of the defendants put an ad in the newspaper that smoking was not harmful and more research was needed into the long term effects of smoking (id. at 14). The plaintiff also alleges that in 1951 there was an ad by Camel cigarettes that Camel cigarettes were wholesome and healthy (id. at 14-15). In 1952, there was an ad run that said Winston cigarettes did not have an adverse effect on health (id. at 15). In 1972, he contends that an ad by R.J. indicated that Doral cigarettes were low tar and low nicotine cigarettes (id. at 15). In June 1975, he alleges there was an ad saying that smoking Doral cigarettes was like a “diet” and could help with weight loss (id. at 15). On June 24, 1975, the plaintiff contends that the defendants advertised that it was safer to smoke Doral cigarettes than other cigarettes (id. at 15-16). In 1982, the defendants testified at a congressional hearing that there was no evidence that cigarettes were addictive or caused disease (id. at 16). In 1994, there was additional congressional testimony by R.J. that R.J. did not do anything to hook smokers or design their cigarettes with specific nicotine levels (id. at 16-17). In 2004, the plaintiff contends that R.J. said it did not add nicotine to its cigarettes (id. at 17).
The plaintiff further contends that B&W, in 1974, indicated that Kool's brand of cigarettes brought in young smokers (id.). In 1975, B&W indicated that Kool's smokers are younger (id. at 17-18). In 1972, B&W advertised that Bugler's roll your own cigarettes had no additives in them and were safe and harmless (id. at 18). In 1994, B&W said in a news interview that they do not do anything to increase the amount of nicotine in their cigarettes (id.). In 1996, B&W reported to the Food and Drug Administration (“FDA”) that nicotine and smoking were not addictive (id.). In 2004, B&W had an ad in a magazine about how “cool” and “hip” Kool cigarettes were (id. at 18-19).
In 1978, the plaintiff alleges that Lorillard advertised Newport cigarettes as a starter brand for smoking (id. at 19). In August 1978, Lorillard advertised that the Newport brand of cigarettes was doing well, were to attract younger smokers, and that they had a lot of young black people smoking their cigarettes (id. at 19-20). In 1994, Lorillard testified before congress that it did not believe nicotine was addictive and said it would not blend nicotine in cigarettes to make a higher in nicotine cigarette (id. at 20). In 1996, Lorillard filed an opposition to an FDA report and asserted that smoking was not addictive (id.). In 2004, Lorillard denied that smoking causes cancer or other diseases, asserting that “we don't know” (id.).
In 1951, PM advertised its cigarettes and said that smoking was good for one's health and on the Godfrey show indicated that it was not addictive or harmful to one's health (id. at 21). In 1984, PM advertised that Marlboro was a growing brand and utilized an ad campaign to attract younger smokers (id. at 22). In 1987, PM ran an ad that there was no indication that secondhand smoke harms because there was “no convincing proof” (id.). In 1994, PM testified before congress that smoking was not addictive and that PM did not manipulate the nicotine amounts in its cigarettes (id. at 22-23). In June 1994, PM issued a press release that there was no indication that ammonia altered the amount of nicotine in cigarettes and did not mean that PM manipulated nicotine levels in cigarettes (id. at 23). In 1995, PM issued a press release that indicated that it did not use ammonia to increase the amount of nicotine inhaled or to affect the absorption of nicotine or the potency of nicotine (id.). In 1996, PM opposed an FDA report and argued that smoking was not addictive (id.). In 2002, PM said they were trying to attract young smokers (id. at 24).
The plaintiff also alleges that there was a safer way to make cigarettes, but the defendants bullied the other company and prevented safer cigarettes from being produced (id. at 32-33). The plaintiff also alleges that he is not barred by the statute of limitations because he just discovered his claim in April 2022 as well as that he is eligible for equitable tolling based upon the defendants' fraudulent actions (id. at 5, 27-36).
The plaintiff's first cause of action against the defendants is fraud (id. at 36-39). His second cause of action against the defendants is intentional fraudulent representation (id. at 39-40). His third cause of action is fraud in the inducement (id. at 40-41). His fourth cause of action is civil conspiracy to commit fraud (id. at 41-42). His fifth cause of action is negligent failure to warn (id. at 42-43). His sixth cause of action is negligence, gross negligence (id. at 43, 45). His seventh cause of action is radio, television, and wire fraud (id. at 45).
The plaintiff's alleged injuries include chronic coughing, high blood pressure, asthma, shortage of breath, increased phlegm, tooth loss, birth defects, eye deformities, fatigue, and anxiety (id. at 44). For relief, the plaintiff seeks money damages (id. at 44, 45-50).
APPLICABLE LAW & ANALYSIS
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
“The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
There are two types of federal jurisdiction: federal question jurisdiction and diversity jurisdiction. Federal question jurisdiction arises when the case arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Diversity jurisdiction is conferred upon the Court when a suit is between citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). Here, the plaintiff alleges federal question jurisdiction based upon his assertion that the defendants committed radio, television, and wire communications fraud in violation of 18 U.S.C. § 1343 (doc. 1 at 6). The plaintiff alleges diversity jurisdiction with respect to the remaining state law claims because the defendants are citizens of different states and the amount in controversy exceeds $75,000.00 (id.). A federal court exercising diversity jurisdiction applies state substantive law. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). As such, the plaintiff's state law claims, brought in this court based upon diversity jurisdiction, will be evaluated based upon South Carolina substantive law.
As an initial matter, although there are four named defendants, there are only two parties-in-interest in the instant matter (R.J. and PM) because B&W and Lorillard have merged out of existence to become part of defendant R.J. (see doc. 1 at 7, 8, 9).
Intentional Fraud and Fraudulent Misrepresentation Claims
As currently presented, the plaintiff's fraud and fraudulent misrepresentation claims are subject to summary dismissal. The elements a plaintiff must allege for the claims are: (1) a representation; (2) its falsity; (3) its materiality; (4) knowledge of its falsity or a reckless disregard for its truth or falsity; (5) intent that the plaintiff act upon the representation; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury. See McLaughlin v. Williams, 665 S.E.2d 667, 670 (S.C. Ct. App. 2008). Under Rule 9 of the Federal Rules of Civil Procedure, fraud claims have a higher pleading standard and must be stated with particularity. Fed.R.Civ.P. 9. Here, as set forth in more detail with respect to each of the plaintiff's allegations of fraud/fraudulent misrepresentations, the plaintiff's complaint contains only vague and conclusory allegations consisting of nothing beyond legal conclusions of fraudulent behavior. See Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019) (noting that in evaluating a complaint's allegations, the court “need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments” (internal citations and quotation marks omitted)). As such, the plaintiff's fraud and fraudulent misrepresentation claims are subject to dismissal as set forth in more detail below.
Representation 1: In 1954, all of the defendants put an ad in the newspaper that smoking was not harmful and more research was needed into the long term effects of smoking (doc. 1 at 14).
Representation 1 does not state a claim for relief. First, the plaintiff has not plausibly alleged falsity of the representation when it was made by the defendants. Further, Representation 1 was made decades before the plaintiff was born, and the plaintiff has not alleged how he was aware of a news advertisement published before his birth. Additionally, because Representation 1 was made decades prior to the plaintiff's birth, he has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 1, or the eighth element of fraud that the plaintiff had a right to rely on an outdated advertisement in deciding to start smoking. Additionally, health warningsplaced on cigarette packaging beginning in 1965, further undermine the plaintiff's claim regarding Representation 1 because he has not alleged how he relied on an advertisement published before his birth instead of warnings found on each package of cigarettes he purchased. See Altria v. Good, 555 U.S. 70, 82-83 (2008) (noting that warnings from the surgeon general on cigarette packets about the harms of smoking bears on a party's right to bring a claim asserting fraudulent advertisements relating to cigarettes); White ex. rel. White v. R. J. Reynolds Tobacco Co., 109 F.Supp.2d 424, 434-35 (D. Md. 2000) (noting that smoking was well-known as dangerous by 1978). As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 1.
As outlined by the Centers for Disease Control and Prevention, after a report by the Surgeon General in 1964, Congress passed the Federal Cigarette Labeling and Advertising Act of 1965 and later the Public Health Cigarette Smoking Act of 1969, which required, among other things, health warnings on cigarette packages. See History of the Surgeon General's Reports on Smoking and Health, Centers for Disease Control and Prevention, https://www.cdc.gov/tobacco/sgr/history/index.htm (last visited September 12, 2022).
Representation 2: In 1951 there was an ad by Camel cigarettes that Camel cigarettes were wholesome and healthy (doc. 1 at 14-15).
The plaintiff has not alleged a claim with respect to Representation 2. As above, Representation 2 was made decades before the plaintiff was born, and the plaintiff has not alleged how he was aware of an advertisement from before his birth. Further, because Representation 2 was made decades prior to the plaintiff's birth, he has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 2, or the eighth element of fraud that the plaintiff had a right to rely on an outdated advertisement in deciding to start smoking. Additionally, as noted above, health warnings placed on cigarette packaging, beginning in 1965, further undermine the plaintiff's claim regarding Representation 2 because he has not alleged how he relied on an advertisement published before his birth instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 2.
Representation 3: In 1952, there was an ad run that said Winston cigarettes did not have an adverse effect on health (doc. 1 at 15).
The plaintiff has not alleged a claim with respect to Representation 3. As above, Representation 3 was made almost 20 years before the plaintiff was born, and the plaintiff has not alleged how he was aware of an advertisement from before his birth. Further, because Representation 3 was made decades prior to the plaintiff's birth, he has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 3, or the eighth element of fraud that the plaintiff had a right to rely on an outdated advertisement in deciding to start smoking. Additionally, as noted above, health warnings placed on cigarette packaging, beginning in 1965, further undermine the plaintiff's claim regarding Representation 3 because he has not alleged how he relied on an advertisement published before his birth instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 3.
Representation 4: In 1972, an ad by R. J. indicated that Doral cigarettes were low tar and low nicotine cigarettes (doc. 1 at 15).
The plaintiff has not alleged a claim with respect to Representation 4. First, it is unclear whether this advertisement was false - the plaintiff has not alleged what counts as being “low” in tar or nicotine or that the Doral cigarettes were not actually “low” in tar and nicotine. Additionally, Representation 4 was made when the plaintiff was three years old (six years before he started smoking) and the plaintiff has not alleged how he was aware of an advertisement from the age of three. As such, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 4, or the eighth element of fraud that the plaintiff had a right to rely on an outdated advertisement in deciding to start smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 4.
Representation 5: In June 1975, there was an ad saying that smoking Doral cigarettes was like a “diet” and could help with weight loss (doc. 1 at 15).
The plaintiff has not alleged a claim with respect to Representation 5. First, the plaintiff has not plausibly alleged that Representation 5 was false. Further, Representation 5 was made three years before the plaintiff began smoking (when he was six) and the plaintiff has not alleged how he was aware of an advertisement from when he was six. As such, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 5, or the eighth element of fraud that the plaintiff had a right to rely on an outdated advertisement in deciding to start smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 5.
Representation 6: On June 24, 1975, R.J. advertised that it was safer to smoke Doral cigarettes than other cigarettes (doc. 1 at 15-16).
The plaintiff has not alleged a claim with respect to Representation 6. First, it is unclear whether this advertisement was false - the plaintiff has not plausibly alleged that Doral cigarettes were not safer than other cigarettes. Additionally, this advertisement was made when the plaintiff was six years old (three years before he started smoking) and the plaintiff has not alleged how he was aware of an advertisement from the age of six. Further, the plaintiff alleges that he began smoking Kools - not Doral - cigarettes when he did begin smoking (doc. 1 at 6-7, 38-39). As such, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 6, or the eighth element of fraud that the plaintiff had a right to rely on an outdated advertisement in deciding to start smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 6.
Representation 7: In 1982, R.J. testified at a congressional hearing that there was no evidence that cigarettes were addictive or caused disease (doc. 1 at 16).
The plaintiff has not alleged a claim with respect to Representation 7. First, the plaintiff has failed to allege how he was aware of the congressional hearing. Additionally, the plaintiff had already been smoking for four years by this time, meaning he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 7 in deciding to continue smoking. Additionally, as noted above, health warnings placed on cigarette packaging, beginning in 1965, further undermine the plaintiff's claim regarding Representation 7 because he has not alleged how he relied on this congressional testimony instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 7.
Representation 8: In 1994, there was additional congressional testimony by R.J. that R.J. did not do anything to hook smokers or design their cigarettes with specific nicotine levels (doc. 1 at 16-17).
The plaintiff has not alleged a claim with respect to Representation 8. First, the plaintiff has not plausibly alleged that this testimony was false. Further, the plaintiff has failed to allege how he was aware of the congressional hearing. Additionally, the plaintiff had been smoking for more than ten years by this time (and he was not smoking R.J. cigarettes at this time), meaning he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 8 in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 8.
Representation 9: In 2004, R.J. said it did not add nicotine to its cigarettes (doc. 1 at 17).
The plaintiff has not alleged a fraud claim with respect to Representation 9. First, the plaintiff has not plausibly alleged that he was aware of this representation or how this representation was false. Additionally, the plaintiff had been smoking for more than twenty years by this time (and he was not smoking R.J. cigarettes at this time), meaning he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 9 in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 9.
Representation 10: In 1974, B&W issued statement indicating that Kool's brand of cigarettes brought in young smokers (doc. 1 at 17).
The plaintiff has not alleged a claim with respect to Representation 10. First, the plaintiff has not plausibly alleged that Representation 10 was false. Further, Representation 10 was made four years before the plaintiff began smoking (when he was five) and the plaintiff has not alleged how he was aware of a statement from when he was five. As such, in addition to the foregoing, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 10, or the eighth element of fraud that the plaintiff had a right to rely on an outdated statement in deciding to start smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 10.
Representation 11: In 1975, B&W indicated that Kool's smokers are younger (doc. 1 at 17-18).
The plaintiff has not alleged a claim with respect to Representation 11. First, the plaintiff has not plausibly alleged that Representation 11 was false. Further, Representation 11 was made three years before the plaintiff began smoking (when he was six) and the plaintiff has not alleged how he was aware of a statement from when he was six. As such, in addition to the foregoing, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 11, or the eighth element of fraud that the plaintiff had a right to rely on an outdated statement in deciding to start smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 11.
Representation 12: In 1972, B&Wadvertised that Bugler's roll your own cigarettes had no additives in them and were safe and harmless (doc. 1 at 18).
The plaintiff has not alleged a claim with respect to Representation 12. This advertisement was made when the plaintiff was three years old and the plaintiff has not alleged how he was aware of an advertisement from the age of three. Additionally, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 12, or the eighth element of fraud that the plaintiff had a right to rely on an outdated advertisement in deciding to start smoking. Additionally, as noted above, health warnings placed on cigarette packaging beginning in 1965 further undermine the plaintiff's claim regarding Representation 12 because he has not alleged how he relied on an advertisement from when he was three years old instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has not stated a fraud or fraudulent misrepresentation claim with respect to Representation 12.
Representation 13: In 1994, B&Wsaid in a news interview that they. do not do anything to increase the amount of nicotine in their cigarettes (doc. 1 at 18).
The plaintiff has not alleged a claim with respect to Representation 13. Although the plaintiff plausibly alleges that this statement was false, the plaintiff has not plausibly alleged how he was aware of this news interview. Further, by this time, the plaintiff alleges he was no longer smoking B&W cigarettes, meaning that he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 13 in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 13.
Representation 14: In 1996, B&Wreported to the Food and Drug Administration (“FDA”) that nicotine and smoking were not addictive (doc. 1 at 18).
The plaintiff has not alleged a claim with respect to Representation 14. As an initial matter, the plaintiff has failed to allege how he was aware of the FDA report or its contents. Additionally, the plaintiff had been smoking for almost twenty years by this time (and he was not smoking B&W cigarettes at this time), meaning he has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, or the seventh element of fraud that the plaintiff relied on the truth of Representation 14 in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 14.
Representation 15: In 2004, B&Whad an ad in a magazine about how “cool” and “hip” Kool cigarettes were (doc. 1 at 18-19).
The plaintiff has not alleged a claim with respect to Representation 15. First, Representation 15 is not definitively false - thus, the plaintiff cannot base a fraud claim on Representation 15. Further, the plaintiff has not plausibly alleged his awareness of this advertisement - and the plaintiff alleges that he was not smoking B&W cigarettes at this time. Additionally, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 15 (in smoking another brand of cigarettes), or the eighth element of fraud that the plaintiff had a right to rely on an advertisement in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 15.
Representation 16: In 1978, Lorillard advertised Newport cigarettes as a starter brand for smoking (doc. 1 at 19).
The plaintiff has not alleged a claim with respect to Representation 16. First, Representation 16 is not definitively false - thus, the plaintiff cannot base a fraud claim on Representation 16. Further, the plaintiff has not plausibly alleged his awareness of this advertisement - and the plaintiff began smoking B&W (not Lorillard) cigarettes in 1978. Additionally, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 16 (in smoking another brand of cigarettes), or the eighth element of fraud that the plaintiff had a right to rely on an advertisement in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 16.
Representation 17: In August 1978, Lorillard advertised that the Newport brand of cigarettes were doing well, were to attract younger smokers, and that they had a lot of young black people smoking their cigarettes (doc. 1 at 19-20).
The plaintiff has not alleged a claim with respect to Representation 17. First, Representation 17 is not definitively false - thus, the plaintiff cannot base a fraud claim on Representation 17. Further, the plaintiff has not plausibly alleged his awareness of this advertisement - and the plaintiff began smoking B&W (not Lorillard) cigarettes in 1978. Additionally, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 17 (in smoking another brand of cigarettes), or the eighth element of fraud that the plaintiff had a right to rely on an advertisement in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 17.
Representation 18: In 1994, Lorillard testified before congress that it did not believe nicotine was addictive and said it would not blend nicotine in cigarettes to make a higher in nicotine cigarette (doc. 1 at 20).
The plaintiff has not alleged a claim with respect to Representation 18. First, the plaintiff has failed to allege how he was aware of the congressional hearing. Additionally, the plaintiff had already been smoking for more than ten years by this time, meaning he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 18 in deciding to continue smoking. Additionally, as noted above, health warnings placed on cigarette packaging beginning in 1965 further undermine the plaintiff's claim regarding Representation 18 because he has not alleged how he relied on this congressional testimony instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 18.
Representation 19: In 1996, Lorillard filed an opposition to an FDA report and asserted that smoking was not addictive (doc. 1 at 20).
The plaintiff has not alleged a claim with respect to Representation 19. As an initial matter, the plaintiff has failed to allege how he was aware of the FDA report or its contents. Additionally, the plaintiff had been smoking for almost twenty years by this time, meaning he has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, or the seventh element of fraud that the plaintiff relied on the truth of Representation 19 in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 19.
Representation 20: In 2004, Lorillard denied that smoking causes cancer or other diseases, asserting that “we don't know” (doc. 1 at 20).
The plaintiff has not alleged a claim with respect to Representation 20. As an initial matter, the plaintiff has failed to allege how he was aware of Representation 20. Further, the plaintiff alleges that he was no longer smoking Lorillard cigarettes at this time, meaning he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 20 in deciding to continue smoking. Additionally, as noted above, health warnings placed on cigarette packaging beginning in 1965 further undermine the plaintiff's claim regarding Representation 20 because he has not alleged how he relied on Representation 20 instead of warnings found on each package of cigarettes he purchased (while smoking a different brand of cigarettes). As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 20.
Representation 21: In 1951, PM advertised its cigarettes and said that smoking was good for ones health and on the Godfrey show indicated that it was not addictive or harmful to one's health (doc. 1 at 21).
The plaintiff has not alleged a claim with respect to Representation 21. Representation 21 was made decades before the plaintiff was born, and the plaintiff has not alleged how he was aware of an advertisement from before his birth. Further, because Representation 21 was made decades prior to the plaintiff's birth, he has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 21, or the eighth element of fraud that the plaintiff had a right to rely on an outdated advertisement in deciding to start smoking. Additionally, as noted above, health warnings placed on cigarette packaging beginning in 1965 further undermine the plaintiff's claim regarding Representation 21 because he has not alleged how he relied on an advertisement published before his birth instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 21.
Representation 22: In 1984, PM advertised that Marlboro was a growing brand and utilized an ad campaign to attract younger smokers (doc. 1 at 22).
The plaintiff has not alleged a claim with respect to Representation 22. First, Representation 22 is not definitively false - thus, the plaintiff cannot base a fraud claim on Representation 22. Further, the plaintiff has not plausibly alleged his awareness of this advertisement - and he had been smoking for several years when this ad appeared. Further, the plaintiff alleges that he was smoking Lorillard (not PM) cigarettes during this time. As such, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 22 (in smoking another brand of cigarettes), or the eighth element of fraud that the plaintiff had a right to rely on the advertisement in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 22.
Representation 23: In 1987, PM ran an ad that there was no indication that secondhand smoke harms because there was “no convincing proof” (doc. 1 at 22).
The plaintiff has not alleged a claim with respect to Representation 23. First, the plaintiff has failed to allege how he was aware of the advertisement. Additionally, the plaintiff had already been smoking for almost ten years (and not smoking PM cigarettes), meaning he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 23 in deciding to continue smoking. Additionally, as noted above, health warnings placed on cigarette packaging beginning in 1965 further undermine the plaintiff's claim regarding Representation 23 because he has not alleged how he relied on this advertisement instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 23.
Representation 24: In 1994, PM testified before congress that smoking was not addictive and that PM did not manipulate the nicotine amounts in their cigarettes (doc. 1 at 22-23).
The plaintiff has not alleged a claim with respect to Representation 24. First, the plaintiff has failed to allege how he was aware of the congressional hearing. Additionally, the plaintiff had already been smoking for almost twenty years by this time, and he was not smoking PM cigarettes, meaning he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 24 in deciding to continue smoking. Additionally, as noted above, health warnings placed on cigarette packaging beginning in 1965 further undermine the plaintiff's claim regarding Representation 24 because he has not alleged how he relied on this congressional testimony instead of warnings found on each package of cigarettes he purchased (while smoking a different brand of cigarettes). As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 24.
Representation 25: In June 1994, PM issued a press release that there was no indication that ammonia in cigarettes altered the amount of nicotine in cigarettes and does not mean that PM manipulated nicotine levels in cigarettes (doc. 1 at 23).
The plaintiff has not alleged a claim with respect to Representation 25. Although the plaintiff plausibly alleges that this statement was false, the plaintiff has not plausibly alleged how he was aware of this press release. Further, the plaintiff alleges that he was not smoking PM cigarettes during this time, meaning that he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 25 in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 25.
Representation 26: In 1995, PM issued a press release that indicated that it did not use ammonia to increase the amount of nicotine inhaled or to affect the absorption of nicotine or the potency of nicotine (doc. 1 at 23).
The plaintiff has not alleged a claim with respect to Representation 26. First, the plaintiff has not plausibly alleged how he was aware of this press release. Further, the plaintiff alleges that he was not smoking PM cigarettes during this time, meaning that he has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 26 in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 26.
Representation 27: In 1996, PM filed an opposition to an FDA report and asserted that smoking was not addictive (doc. 1 at 23).
The plaintiff has not alleged a claim with respect to Representation 27. As an initial matter, the plaintiff has failed to allege how he was aware of the FDA report or its contents. Additionally, the plaintiff had been smoking for almost twenty years by this time (and he was not smoking PM cigarettes at this time), meaning he has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, or the seventh element of fraud that the plaintiff relied on the truth of Representation 27 in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 27.
Representation 28: In 2002, PM said they were trying to attract young smokers (doc. 1 at 24).
The plaintiff has not alleged a claim with respect to Representation 28. First, Representation 28 is not definitively false - thus, the plaintiff cannot base a fraud claim on Representation 28. Further, the plaintiff has not plausibly alleged his awareness of this advertisement. Additionally, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 28, or the eighth element of fraud that the plaintiff had a right to rely on an advertisement in deciding to continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 28.
Fraud in the Inducement Claim
The plaintiff's fraud in the inducement claim is also subject to summary dismissal. To plausibly allege fraud in the inducement, a plaintiff must show fraud (as outlined above) and three additional elements: (1) that the fraudfeasor made a false representation relating to a present or pre-existing fact; (2) that the fraudfeasor intended to defraud the plaintiff; and (3) that the plaintiff had the right to rely on the statement made. Moseley v. All Things Possible, Inc., 694 S.E.2d 43, 45 (S.C. Ct. App. 2010) (internal citations omitted). As noted above, the 28 representations, as presented, do not satisfy the heightened fraud pleading standard. Further, with respect to representations 1,4, 5, 6, 8, 10, 11, 15, 16, 17, 22, and 28, there is no indication that these statements were false or involved a present or pre-existing fact. Additionally, it is unclear how representations 1,2, 3, and 21 could have been intended to defraud the plaintiff since he was not yet born. Further, the plaintiff has not plausibly alleged he had a right to rely on representations 7, 9, 12, 13, 14, 18, 19, 20, 23, 24, 25, 26, and 27. As such, in addition to the pleading deficiencies specific to the nine elements of fraud, outlined supra, the plaintiff's complaint fails to allege a fraud in the inducement claim.
Civil Conspiracy Claim
The plaintiff's civil conspiracy claim is likewise subject to summary dismissal. The elements of a civil conspiracy claim are (1) the combination or agreement of two or more persons; (2) to commit an unlawful act or a lawful act by unlawful means; (3) with the commission of an overt act in the furtherance of the agreement; (4) damages resulting to the plaintiff. Paradis v. Charleston Cnty. Sch. Dist., 861 S.E.2d 774, 780 (S.C. 2021). Here, the plaintiff has alleged that there was an agreement between the defendants to at least disguise the harmfulness of cigarettes. However, the plaintiff has not alleged unlawful acts by the defendants or lawful acts done by unlawful means. For example, even presuming there were false advertisements produced by the defendants, they were not unlawful. The plaintiff's vague and conclusory allegations also fail to allege an overt act -alleging only vaguely that this large conspiracy occurred. It is also unclear how the plaintiff's alleged damages are caused by the conspiracy. Indeed, the plaintiff cannot both argue that the individual actions by the defendants induced him to smoke and caused damages as well as that he only began smoking due to some overarching conspiracy. Thus, the plaintiff's conspiracy claim also fails to state a claim for relief.
Negligent Failure to Warn
The plaintiff's negligent failure to warn claim also fails to state a claim for relief. The elements of a negligent failure to warn claim are (1) the defendant knew or should have known that the product was likely dangerous for its intended use; (2) there was no reason to believe that the user would realize the potential danger; and (3) the defendant failed to exercise reasonable care to inform of the dangerous condition. See Livingston v. Noland Corp., 362 S.E.2d 16, 18-19 (S.C. 1987). Here, the plaintiff cannot plausibly allege the second element because health warnings were placed on cigarette packaging beginning in 1965 warning that smoking was dangerous; thus, the plaintiff knew or should have known the potential danger to smoking. Indeed, courts have recognized that smoking was well-known as dangerous by 1978. See White, 109 F.Supp.2d at 434-35. Further, the plaintiff has failed to plausibly allege that if he had been further warned about the dangers of smoking he would have changed his mind regarding smoking. See Allen v. Long Mfg. N.C., Inc., 505 S.E.2d 354, 359 (S.C. Ct. App. 1998). As such, the plaintiff's negligent failure to warn claim is subject to dismissal.
Negligence/Gross Negligence
The plaintiff's sixth cause of action, negligence/gross negligence, is also subject to dismissal. The elements of negligence/gross negligence are (1) the defendant owes a duty of care to the plaintiff; (2) the defendant breached that duty by a negligent act or omission; (3) the breach was the actual or proximate cause of the injury; and (4) the plaintiff suffered damages. Doe v. Marion, 645 S.E.2d 245, 250 (S.C. 2007). Here, the plaintiff alleges that the duty of care owed to him falls under the South Carolina Unfair T rade Practices Act (“SCUTPA”) and that the defendants breached that duty by lying to the American public, which caused him damages. However, the plaintiff has not plausibly alleged proximate cause of his injuries. For example, as outlined above with respect to the plaintiff's fraud/fraudulent misrepresentation claims, he has not plausibly alleged that he relied on the advertisements or statements in deciding to start smoking.
This claim can also be construed as a products liability claim, whose elements include (1) the plaintiff was injured by the product; (2) the product was in the same condition when used as when bought; and (3) a damaged or defective design caused the damage. Livingston v. Noland Corp., 362 S.E.2d 16, 18 (S.C. 1987). Here, the analysis is whether the plaintiff should have known cigarettes were dangerous. The plaintiff's claim fails based upon health warnings placed on cigarette packaging beginning in 1965 alerting the plaintiff to the health dangers of cigarettes. See Altria, 555 U.S. at 82-83. As such, the plaintiff's negligence/gross negligence and/or products liability claim is subject to summary dismissal.
Radio, Television, and Wire Communications Fraud
The plaintiff's seventh cause of action is radio, television, and wire communications fraud pursuant to 18 U.S.C § 1343. However, this is a criminal statute rather than a civil one, and the plaintiff's claim fails because there is no private cause of action for wire fraud. See Waskey v. O'Neal, C/A No. 8:18-cv-02824-PX, 2021 WL 5326471, at *5 n.4 (D. Md. Nov. 16, 2021). As such, the plaintiff's radio, television, and wire communications fraud claim is subject to summary dismissal.
Rule 41In addition to the foregoing, the plaintiff's complaint is also subject to dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedure. It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (emphasis added). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factors (1) and (3), the plaintiff is proceeding pro se, so he is responsible for his failure to respond to court orders and has missed the deadline to file an amended complaint as instructed in the court's August 12, 2022, order (doc. 16). The plaintiff has been warned on several occasions that failure to keep his address updated with the Court or to comply with orders of this court may result in dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure (docs. 6 at 1, 2; 11 at 2, 3; 16 at 1-2, 3; 20 at 23-24). Accordingly, as the plaintiff has failed to comply with this court's August 12, 2022, order, the undersigned recommends that the instant action be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to comply with an order of the court.
RECOMMENDATION
By order issued August 12, 2022, the undersigned provided the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 20). The plaintiff failed to file an amended complaint within the time provided and a prior order of this Court has been returned as undeliverable mail. As such, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, in light of the plaintiff's failure to respond to this court's order regarding amendment, the undersigned recommends that the district court dismiss this action with prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, C/A No. 20-1620 (4th Cir. Aug. 17, 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
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 committees 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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).