Opinion
C. A. 4:22-cv-01997-JD-MHC
11-30-2023
Jimmy Gallishaw, Jr., a/k/a Jimmy Maurice Gallishaw, Jr., Plaintiff, v. R.J. Reynolds Tobacco Company, Inc., Brown & Williamson Tobacco Corporation, and Lorillard Tobacco Company, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff, proceeding pro se, filed this action against several tobacco companies. ECF No. 1. Before this Court is a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Motion”), filed by Defendant R. J. Reynolds Tobacco Company (“Reynolds”), individually, as successor-by-merger to Lorillard Tobacco Company, and as successor-in-interest to the U.S. tobacco business of Brown & Williamson Tobacco Corporation (n/k/a Brown & Williamson Holdings, Inc.) (jointly, “Defendants”). ECF No. 43. As Plaintiff is proceeding pro se, the Court entered a Roseboro Order, which was mailed to Plaintiff, advising him of the importance of a dispositive motion and of the need to file an adequate response. ECF Nos. 44, 45. Plaintiff was specifically advised that if he failed to file a properly supported response, Defendants' Motion may be granted, thereby ending his case. ECF No. 44. Thereafter, Plaintiff filed a Response, ECF No. 46, and Defendants filed a Reply, ECF No. 47. The Motion is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2), D.S.C. This Report and Recommendation is entered for review by the District Judge.
The facts, and all inferences therefrom, are construed in the light most favorable to Plaintiff for purposes of ruling on Defendants' Motion to Dismiss. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
Plaintiff, who is incarcerated in the South Carolina Department of Corrections, filed his initial complaint against Defendants on June 23, 2022. ECF No. 1. In response to Defendants' Motion to Dismiss the initial Complaint, Plaintiff moved to amend the Complaint and, with leave of the Court, filed an Amended Complaint on June 29, 2023. See ECF Nos. 24, 37, 39, 40.
In his Amended Complaint, Plaintiff alleges that he started smoking at the age of sixteen in 1993. ECF No. 40 at 5; see Id. at 24 (alleging that he was eleven years old in 1988). He further alleges that before he started smoking, he “witnessed, observed, heard and read publications of the Tobacco Industry Corporations' history regarding denying facts that[] smoking cigarettes does not cause[] any adverse health consequences, thru major and local Newspapers.” Id. at 5. Throughout the Amended Complaint, Plaintiff repeats several statements allegedly made by a variety of cigarette manufacturers about the health risks of smoking, and he alleges that he relied upon these statements in deciding to smoke. See id. at 9, 42-54. He further alleges that Defendants made numerous false statements between 1950 and the early 2000s through a variety of media concerning the health risks of smoking. See id.
Plaintiff alleges that in May 1988, he heard about Lorillard Tobacco Company's disagreement with the U.S. Department of Health and Human Services Surgeon General's 1988 Report, which found that there was a public consensus in the scientific and public health community that cigarette smoking and nicotine are addictive. Id. at 24-25. Nonetheless, Plaintiff alleges that he was unaware of the health risks of smoking until April 2022, after seeing television news coverage of a potential ban on menthol cigarettes. See Id. at 5, 41 (alleging that Defendants' advertisements and statements concealed and denied that cigarette smoking causes lung cancer and other related diseases and that Plaintiff had been unaware of the link between cigarette smoking and disease). Plaintiff alleges that had he known the truth, he would not have purchased and smoked Defendants' menthol filtered cigarette brands, and he would not have suffered respiratory infections, chronic coughing, or shortness of breath. Id. at 36-37.
Plaintiff “identif[ies] his claims as Intentional Fraud, [I]ntentional Fraudulent Misrepresentation, Intentional Fraudulent of Inducement, [and] Civil Conspiracy to Commit Fraud, Concealment and Misrepresentation.” Id. at 4, 42-54. He alleges that his damages have included, among other things, non-economic damages, various respiratory issues, headaches, and “being medically prescribed” various medications. See id. at 6. Plaintiff seeks monetary damages from each Defendant in the amount of $100,000,000.00 for these alleged injuries, along with punitive damages. Id. at 6, 55-56.
LEGAL STANDARD
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. The court may consider a document not attached to the complaint, so long as the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, principles requiring generous construction of pro se complaints do “not require courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Giving liberal construction does not mean that the court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. See Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) (“Only those questions which are squarely presented to a court may properly be addressed.”). Thus, even under this less stringent standard, a pro se complaint is still subject to summary dismissal. Estelle, 429 U.S. at 106-07.
DISCUSSION
Defendants move to dismiss Plaintiff's Amended Complaint in its entirety. ECF No. 43. First, Defendants argue that Plaintiff's claims are time-barred and not subject to equitable estoppel or tolling. ECF No. 43-1 at 5-9. Second, Defendants argue that Plaintiff has failed to state any cognizable claim for relief. Id. at 5, 9-11. Upon review of the record presented and the applicable law, the undersigned finds that Defendants' Motion should be granted.
Plaintiff attached an affidavit and various exhibits to his Response in Opposition to the Motion to Dismiss. ECF No. 46-2. Because the affidavit and exhibits were not attached to, integral to, or explicitly relied upon in the Amended Complaint, the undersigned has not considered those documents for purposes of evaluating the Amended Complaint. See Kolon Indus., Inc., 637 F.3d at 440.
I. Statute of Limitations
Defendants argue that Plaintiff's fraud claims are time-barred. The Fourth Circuit has explained that “a motion to dismiss filed under Federal Rule of Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc). Nonetheless, the defense may be reached by a Rule 12(b)(6) motion to dismiss “if all facts necessary to the affirmative defense clearly appear on the face of the complaint.” Id. (emphasis in original). Thus, for Defendants to prevail on this affirmative defense at this stage of the proceedings, all facts necessary to show that the statute of limitations had expired must clearly appear on the face of the Amended Complaint. See id.
All of Plaintiff's claims are based on fraud. The statute of limitations for personal injury claims based on fraud in South Carolina is three years. S.C. Code Ann. § 15-3-530(7). “In South Carolina, the statute of limitations for causes of action for fraud is governed by the ‘discovery rule,' and does not begin to run until discovery of the fraud itself or of ‘such facts as would have led to the knowledge thereof, if pursued with reasonable diligence.'” Burgess v. Am. Cancer Soc., SC Div., Inc., 386 S.E.2d 798, 799 (S.C. Ct. App. 1989) (quoting Grayson v. Fidelity Life Ins. Co. of Phila., 103 S.E. 477, 478 (S.C.1920)); see also S.C. Code Ann. § 15-3-530(7) (explaining that any action for relief on the ground of fraud is “not considered to have accrued until the discovery by the aggrieved party of the facts constituting the fraud”). “In applying the discovery rule, inquiry is focused upon whether the complaining party acquired knowledge of any existing facts sufficient to put said party on inquiry which, if developed, will disclose the alleged fraud.” Burgess, 386 S.E.2d at 799 (citation and internal quotation marks omitted). “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.” Id. “Thus, either actual or constructive knowledge of facts or circumstances, indicative of fraud, trigger a duty on the part of the aggrieved party to exercise reasonable diligence in investigating and, ultimately, in pursuing a claim arising therefrom.” Id. at 800. Accordingly, a claim based on fraud is barred if it is not filed within three years of the time “from which pertinent facts were actually known or could have been known through the exercise of reasonable diligence.” Id. (emphasis in original).
Plaintiff alleges he did not learn about Defendants' deceptive statements and advertising until 2022. Defendants, however, argue that Plaintiff should have known of his fraud claims at the time he began to have smoking-related injuries. ECF No. 43-1 at 7-8. Although Defendants note that Plaintiff has not alleged the date those injuries began, Defendants contend it can reasonably be inferred “that at least some of his damages arose well before June 23, 2019.” Id. As stated above, however, for Defendants to prevail on their affirmative defense at this stage of the proceedings, all facts necessary to show that the statute of limitations had expired must clearly appear on the face of the Amended Complaint. See Goodman, 494 F.3d at 464. And, while the Amended Complaint is silent as to when Plaintiff's smoking-related injuries began, the Court must take as true Plaintiff's well-pleaded allegation that he did not discover Defendants' conduct constituting fraud until 2022. Therefore, at this stage, the undersigned cannot say that Plaintiff's claims based on fraud are untimely. See Brown v. R.J. Reynolds Tobacco Co., Inc., No. CV 4:22-1726-JD-KDW, 2023 WL 5941712, at *5 (D.S.C. July 11, 2023) (concluding that the court “cannot definitively find that Plaintiff's allegations sounding in fraud are time-barred based on the allegations within the Complaint”), report and recommendation adopted, No. 4:22-CV-1726-JD-KDW, 2023 WL 5941517 (D.S.C. Sept. 12, 2023); Dye v. R.J. Reynolds Tobacco Co., Inc., No. CV 0:22-2026-SAL-PJG, 2022 WL 19774516, at *3 (D.S.C. Dec. 22, 2022) (same), report and recommendation adopted, No. 0:22-CV-2026-SAL, 2023 WL 2926491 (D.S.C. Apr. 13, 2023).
However, as explained below, the undersigned finds Plaintiff's claims should be dismissed on other grounds.
II. Failure to State a Claim
Federal Rule of Civil 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). Thus, a plaintiff must plead with particularity the time, place, and contents of the false representations; the identity of the person making the misrepresentations; and what that person obtained. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1297 (2d ed. 1990)); United States v. Berkeley Heartlab, Inc., 247 F.Supp.3d 724, 729 (D.S.C. 2017) (stating the complaint must describe the “who, what, when, where, and how of the alleged fraud”) (quoting U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008)). A court should dismiss claims under Rule 9(b) unless the court is satisfied (1) that the defendant has been made aware of the particular circumstances for which it will have to prepare a defense at trial, and (2) that plaintiff has substantial pre-discovery evidence of those facts. See Harrison, 176 F.3d at 784.
Plaintiff's fraud claims fail to meet the pleading standard found in Federal Rule of Civil Procedure 9(b). As an initial matter, Plaintiff fails to allege with particularity his ignorance of the truth of, or justifiable reliance on, the allegedly false advertisements or statements regarding the health risks associated with tobacco use, and his allegation that he was ignorant to the dangers of smoking cigarettes until 2022 seems implausible. Courts have long recognized that smoking was generally known to be dangerous by no later than 1988, five years before Plaintiff started smoking. See Little v. Brown & Williamson Tobacco Corp., 243 F.Supp.2d 480, 494 (D.S.C. 2001) (“The court concludes that by 1988 all the risks associated with cigarette smoking were known to the ordinary consumer with ordinary knowledge common to the community.”); 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). Further, as pointed out by Defendants, every pack of cigarettes Plaintiff smoked would have contained a warning label, advising Plaintiff about the dangers of smoking cigarettes. See 15 U.S.C. § 1331; see also 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 may impact a party's claim asserting fraudulent advertisements relating to cigarettes).
Plaintiff's conclusory allegations 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. Moreover, the allegations about the general corporate statements made in advertisements and on television are insufficient to put Defendants on notice of the particular statements Plaintiff relies upon to make his claims. See Harrison, 176 F.3d at 784 (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 claims).
Although Plaintiff identifies specific advertisements and statements made by Defendants over the years, his remaining fraud allegations, such as his ignorance as to the falsity of the statements, his reliance on the statements, and his right to rely on the statements, are conclusory and insufficient to state a plausible claim for relief. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). For instance, he does not allege with particularity how he became aware of or relied upon certain statements made in the 1950s to the early 1980s, prior to or within a few years of his birth in 1977. Consequently, Plaintiff's claims should be dismissed for failure to state a claim upon which relief can be granted.
Plaintiff's claim for “civil conspiracy to commit fraud and concealment” appears to be a claim based on fraud, such that it is subject to the heightened pleading standard. As stated above, Plaintiff has not pled his fraud claims with particularity sufficient to satisfy the Rule 9(b) standard. However, even if the civil conspiracy claim were not subject to the 9(b) standard, it still should be dismissed for failure to state a claim. 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). Plaintiff “must plead additional facts in furtherance of the conspiracy separate and independent from other wrongful acts alleged in the complaint, and the failure to properly plead such acts will merit the dismissal of the claim.” Hackworth v. Greywood at Hammett, LLC, 682 S.E.2d 871, 875 (S.C. Ct. App. 2009), overruled on other grounds by Paradis, 861 S.E.2d 774. Stated another way, “[w]here the particular acts charged as a conspiracy are the same as those relied on as the tortious act or actionable wrong, [P]laintiff cannot recover damages for such act or wrong, and recover likewise on the conspiracy to do the act or wrong.” Todd v. S.C. Farm Bureau Mut. Ins. Co., 278 S.E.2d 607, 612 (S.C. 1981), overruled on other grounds by Paradis, 861 S.E.2d 774 ; see Coker v. Norwich Com. Grp., Inc., No. CV 3:20-03071-MGL, 2021 WL 4037472, at *5-6 (D.S.C. Sept. 3, 2021). Here, plaintiff's civil conspiracy claim is based on the same allegedly fraudulent acts that underpin his fraud claims. Because Plaintiff does not “plead additional facts in furtherance of the conspiracy separate and independent from other wrongful acts alleged in the complaint,” the civil conspiracy claim should be dismissed. Hackworth, 682, 682 S.E.2d at 875; see Coker, 2021 WL 4037472, at *6 (granting motion to dismiss civil conspiracy claim upon finding that plaintiff “merely reincorporated his previous claims and added conclusory allegations the Individual Defendants were engaged in a civil conspiracy”).
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that Defendants' Motion to Dismiss (ECF No. 43) be GRANTED and that the Amended Complaint 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”).
The parties are referred to the Notice Page attached hereto.
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 835 Charleston, South Carolina 29402
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).