MARTUCCI et al v. PROCTER & GAMBLE, INC. et al
Filing
69
OPINION. Signed by Judge Jose L. Linares on 10/20/15. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM C. MARTUCCI AND WHITE
CORPORATIONS l-X,
Civil Action No.: 15-4434 (JLL)
OPINION
Plaintiffs,
V.
PROCTER & GAMBLE, INC., ET AL,
Defendants.
LINARES, District Judge.
This matter comes before the Court by way of a motion to dismiss pursuant to Federa
l
Rule of Civil Procedure 12(b)(6) filed by Defendant Pinnacle Foods Corp. n/k/a Pinnac
le Foods
Inc. (‘Pitmacle”). (ECF No. 20.) The Court decides this matter without oral argum
ent pursuant
to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below,
Pinnacle’s
motion is GRANTED.
BACKGROUND
Plaintiff William C. Martucci is a Pro Se litigant who was granted in forma
pauperis
status. (ECF No. 2). Plaintiff’s business, United Grocers Clearing House, Inc.,
which is “now
known as Retailers Marketing Group, Inc. (“RMG”)” is a coupon clearin
ghouse. (ECF No. 2
(“Compl.”)
¶ 15). According to Plaintiff, “RMG performs processing services in the field of
vendor coupon representation, issues payments and is [a] fully approved
and authorized
clearinghouse for vendors’ coupons by all manufacturers listed in [the]
Complaint.” (Ibid.).
Plaintiff claims that Pinnacle is under contract with Defendant Inmar,
Inc. (“Inmar”), a
“redemption agent for various manufacturers’ vendor coupons” to “perform coupon processing
services on [the manufacturers’] behalf.” (Id.
¶
13-14). Plaintiff states that Inmar authorized
him to be a “fully approved clearing house for vendor coupon redemption” and that “[t]his has
been in effect for nearly forty (40) years.” (Id.
¶ 18).
Plaintiff alleges seven counts against the Defendants for: (1) breach of contract, (2)
breach of the covenant of good faith and fair dealing, (3) conversion, (4) negligent
misrepresentation, (5) conspiracy, (6) fraud, and (7) restraint of trade.
(Id. at 7-22).
On
September 22, 2015, Defendant Pinnacle filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure l2(b)(6). (ECF No. 33 (“Def.’s Br.”) at 1). Plaintiff opposes this motion. (ECF
No. 33, “Pl.’s Opp. Br.”).
LEGAL STANDARD
To withstand a motion to dismiss for failure to state a claim, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”
Ashcroft
i’.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “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.”
Iqbal, 556 U.S. at 678.
“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.”
Id.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
2
To determine the sufficiency of a complaint under Twombly and Iqbal in the Third
Circuit, the court must take three steps: first, the court must take note of the elements a plaintiff
must plead to state a claim; second, the court should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth; finally, where there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief. See Burtch v. Milberg Factors, Inc., 662 F.3d
212, 221 (3d Cir. 2011) (citations omitted).
When reviewing the sufficiency of a complaint filed by apro se litigant, the Court has
“a
special obligation to construe his complaint liberally.” See Higgs v. Atty Gen. of the United
States, 655 F.3d 333, 339 (3d Cir. 2011) (quotations omitted). That said, even apro se litigant’s
Complaint is subject to dismissal if a Court, after liberally construing same, finds that the
plaintiff has not met the threshold pleading standards outlined by the Federal Rules of Civil
Procedure and case law. See Neitzke v. Williams, 490 U.S. 319, 328 (1989) (“To the extent that
a
complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law,
Rule I 2(b)(6)
.
.
.
counsel{s] dismissal.”).
ANALYSIS
A Breach of Contract
In Count One of the Complaint, Plaintiff allege that Defendants Proctor & Gamble
(“PG”), Inmar, and NCH Marketing Services, Inc. (“NCH”) signed contracts with Plaintiff,
which were subsequently “not honored.” (Compl.
3
¶ 22-24).
To survive dismissal of a breach of
contract claim under New Jersey law, a plaintiff must allege “(1) the existence of a valid contract
between the parties; (2) failure of the defendant to perform its obligations under the contract; and
(3) a causal relationship between the breach and the plaintiffs alleged damages.” Sheet Metal
Workers Int’l Ass ‘n Local Union No. 27, AFL-.CIO v. E.P. Donnelly, Inc., 737 F.3d 879, 900 (3d
Cir. 2013) (citing C’oyle v. Englander’s, 199 N.J. Super. 212 (N.J. Super. Ct. App. Div. 1985)).
Pinnacle contends that “[P]laintiff does not, and cannot, plead that he has a contract with
Pinnacle” (Def.’s Br. at 4). Indeed, Plaintiff has not alleged that he has entered into a contract
with Pinnacle. Instead, Plaintiff alleges that “William C. Martucci’s contract with Inmar, Inc. as
a redemption agent for the companies listed in number 7 of this complaint, are in full force as if
each company was in a direct contractual agreement with William C. Martucci.” (Compl.
¶ 28).
Plaintiff’s conclusion is not supported by the facts or case law. Indeed, Plaintiff has failed to
show how he is in contractual privity with Pinnacle, based on the alleged Inmar-Pinnacle
contract. Therefore, Plaintiff has failed to meet the first requirement of a breach of contract
claim.
It appears that Plaintiff attempts to argue that he was a third-party beneficiary of the alleged
contracts between Pinnacle and Inmar. Indeed, Plaintiff states that he has a “[b]ridge contract”
with Pinnacle, and that they have had a “long business relationship as proven by Pinnacle having
paid the Plaintiff through Inmar.” (Pl.’s Opp. Br.
¶J 6-7). Specifically, Plaintiff reasons:
Pinnacle is under contract with Inmar, Inc., to represent Pinnacle/Viasic Foods in vendor
couponing redemption. Pinnacle, through Inmar, paid $4,056.68 to Plaintiff for coupons
issued by Pinnacle. Pinnacle owes $36.90 for unpaid invoices to Plaintiff. Therefore,
Pinnacle, Inmar and Plaintiff have contracts between them for coupon redemption and
reimbursement of funds.
(Id.
¶ 5).
4
However, Plaintiff has failed to show how he was in fact a third party beneficiary of any
purported contract between Pinnacle and Inmar. Unless a third party to a contract can show that
the contract was “made for the benefit of said third party within the intent and contemplation of
the contracting parties.
.
.
.
[h]e has no right of action under that contract despite the fact that he
may derive an incidental benefit from its performance.” First Nat. State Bank ofNew Jersey v.
Commonwealth Fed. Say. & Loan Ass’n of Norristown, 610 F.2d 164, 170 (3d Cir. 1979)
(quoting Gold Mills, Inc. v. Orbit Processing Corp., 121 N.J. Super. 370, 373 (Law Div. 1972)).
Here, Plaintiff has not plead or otherwise argued that Pinnacle and Inmar intended to enter
into a contract for Plaintiff’s benefit. Nor has Plaintiff shown that he was ever contemplated
during any alleged contract negotiations between Inmar and Pinnacle. Moreover, Plaintiff has
not directed this Court to any contractual language naming him as a beneficiary of contracts
between Pinnacle and Inmar.
Therefore, Plaintiff appears to be, at best, an “incidental
beneficiary with no contractual standing.” Kersey v. Becton Dickinson & Co., 433 Fed. Appx.
105, 109 (3d Cir. 2011); see also Broadway Maint. Corp. v. Rutgers, State Univ., 90 N.J. 253,
259 (1982) (“The contractual intent to recognize a right to performance in the third person is the
key. If that intent does not exist, then the third person is only an incidental beneficiary, having
no contractual standing.”). For these reasons, Plaintiff has failed to plead the threshold showing
of a breach of contract claim, namely, the existence of a contract. As such, Plaintiff’s breach of
contract claim against Pinnacle is dismissed.
B. Breach of the Covenant of Good Faith and Fair Dealing
5
[n Count Two, Plaintiff alleges a breach of the covenant of good faith and fair dealing.
(Compi. at ¶J 26-29) The New Jersey Supreme Court has made clear that, “[i]n the absence of a
contract, there can be no breach of an implied covenant of good faith and fair dealing.” Wade v.
Kessler Inst., 172 N.J. 327, 345 (2002) (quoting Noye v. Hoffman-La Roche, Inc., 238 N.J.
Super. 430, 434 (App. Div. 1990)); see also Black Horse Lane Assoc., L.P, v. Dow Chem. Corp.,
228 F.3d 275, 288 (3d Cir. 2000). As discussed above, Plaintiff has failed to sufficiently plead
the prerequisite contractual relationship with Pinnacle. Accordingly, Plaintiffs claim for breach
of the implied covenant of good faith and fair dealing is dismissed as against Pinnacle.
C. Conversion
Plaintiff also attempts to bring a claim for conversion against Defendants. New Jersey courts
have held that “[c]onversion is the exercise of any act of dominion in denial of another’s title to
the chattels, or inconsistent with such title.” Schenkel v. Flaster, 54 Fed. Appx. 362, 365 (3d Cir.
2002) (citing Mueller v. Technical Devices Corp., 8 N.J. 201, 84 A.2d 620, 623 (1951)).
However, Plaintiff has failed to make any showing of the required elements of conversion.
Rather, Plaintiff recites the elements for conversion, as follows:
Upon information and belief the Defendants are illegally, wrongfully and unlawfully
exercising dominion and control over funds rightfully belonging to the plaintiff, which
actions constitute an illegal tortuous [sic] conversion of funds. Defendants cloistered a
conversation [sic] by not allowing Plaintiff to prove by documentation William C. Martucci’s
position as an authorized clearinghouse.
(Compi.
¶J 31-32). Plaintiff does not plead any specific facts to support these allegations, and
the above “[t]hreadbare recitals of the elements of a cause of action” are insufficient to state
a
cause of action for which relief may be granted. Iqbal at 556 (internal citations omitted);
see
also Twomblv at 544 (“[A] plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment]
to
6
relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s
elements will not do.”). Accordingly, Plaintiff’s conversion claim against Pinnacle is hereby
dismissed.
B. Negligent Misrepresentation
Plaintiff alleges that Defendants are liable for negligent misrepresentation. (Compi.
¶ 35-37).
This Court will also construe Plaintiff’s allegations as raising a claim of breach of fiduciary duty.
See ffiggs, 665 F.3d at 339.
It is well established that “under New Jersey law negligent misrepresentation requires a
showing that defendant negligently provided false information and that plaintiff incurre
d
damages proximately caused by its reliance on that information.” Highlands Ins. Co. v. Hobbs
Grp., LLC., 373 F.3d 347, 351 (3d Cir. 2004) (citing Karu v. Feldman, 119 N.J. 135 (1990)
).
Plaintiff has failed to plead, with any sort of specificity, that Pinnacle met the aforem
entioned
requirements for negligent misrepresentation.
Instead, Plaintiff’s entire claim of negligent
misrepresentation states that:
Upon information and belief P&G, Inmar, NCH and other listed manufacturers violate
d
“Uberimae Fidel” [sic] that states one must act in utmost good faith and requires makin
g
known all material facts influencing the contract. The Defendants did not mainta
in a
fiduciary relationship with William C. Martucci. All parties must have equal knowledge
of a
matter in conflict.
(CompL
¶ 36).
As stated above, Plaintiff has not plead a contractual relationship with Pinnacle. Thus,
the
doctrine of uberimmae fldei would not apply to Pinnacle, and in any event, this
doctrine is
inapposite to Plaintiff’s claim of negligent misrepresentation. Moreover, Plainti
ff has not plead
7
any substantial facts to support his argument that Pinnacle was negligent in providing Plainti
ff
with false information and that Plaintiff; to his detriment, relied on this information. For
these
reasons, Plaintiff’s negligent misrepresentation claim against Pinnacle is dismissed.
As to Plaintiffs’ breach of fiduciary duty claim, Plaintiff argues that “the Defendants did not
maintain a fiduciary relationship with William C. Martucci.” (Compi.
¶ 36).
“A fiduciary
relationship arises under New Jersey law when ‘one person is under a duty to act for or give
advice for the benefit of another on matters within the scope of their relationship.” Indus. Mar.
Carriers (Bahamas), Inc. v. Miller, 399 Fed. Appx. 704, 710 (3d Cir. 2010) (unpublished)
(citing
McKelvey v. Pierce, 173 N.J. 26, 57 (2002)). Such relationship bestows upon the fiducia
ry “a
duty of loyalty and a duty to exercise reasonable skill and care’ on behalf of the person to whose
benefit the fiduciary acts.” Id. (quoting McKelvey, 173 N.J. at 57). Plaintiff has not
plead
anything to support the assertion that there was a fiduciary relationship between him
and
Pinnacle. Nothing in Plaintiff’s pleadings even remotely suggests that Pinnacle was under
any
sort of “duty to act for or give advice for” Plaintiff’s benefit. Id. Therefore, becaus Plainti
e
ff
has tailed to establish the existence of a fiduciary relationship between himself and Pinnac
le,
Plaintiff’s claim for breach of fiduciary duty against Pinnacle is dismissed.
E. Conspiracy
Plaintiff further alleges that Defendants conspired against him. (Compl. at 12-18). In
order
to bring a conspiracy claim in New Jersey, a plaintiff must show “(1) a combination of
two or
more persons; (2) a real agreement or confederation with a common design; (3) the existen
ce of
an unlawful purpose, or of a lawful purpose to be achieved by unlawful means; and
(4) proof of
special damages.” Morganroth & Morganroth v. Norris, McLaughlin & Marcus,
P.C., 331 F.3d
8
406, 414 (3d Cir. 2003) (citing Naylor
i’.
[-larkins, 27 N.J. Super. 594, 99 A.2d 849, 855 (1953),
modified on other grounds, 32 N.J. Super. 559, 109 A.2d 19 (1954)). Furthermore,
New Jersey
courts have held that a complaint alleging conspiracy “must also contain at least
some facts
which could, if proven, permit a reasonable inference of a conspiracy to
be drawn.. .This
requirement is established where the complaint sets forth a valid legal theory and it
adequately
states the conduct, time, place, and persons responsible.” Lynn v. Christner, 05-483
8, 2006 WL
1582042, at *3 (3d Cir. June 9, 2006) (citing Evancho v. Fisher, 423 F.3d 347, 353
(3d Cir.2005)
(internal citations omitted).
However, Plaintiff limits most of these allegations to specific Defendants, and
excludes
Pinnacle from many of these claims.
For instance, Plaintiff states that “Procter & Gamble
violated the Security and Exchange Commission Act of 1934” (Compl.
¶ 39), “Proctor and
Gamble conspired with Inmar, Inc. to void all coupon contracts with Willia
m C. Martucci”
(Compi.
¶ 40), and “Inmar corporate officers in conjunction with P&G corporate officers
conspired to cancel William C. Martucci’s authorizations as a coupon clearin
ghouse” (Compi.
¶
45). Therefore, those claims fail to allege how Pinnacle was involved in any
conspiracy against
Plaintiff If anything, these allegations seem to insinuate that Pinnacle was someh
ow the victim
of Inmar’s allegedly wrongful behavior, not a wrongdoer. (See Compi.
¶ 41) (“Inmar did not
notify the manufacturers they represent of their intention to void any and
all contracts that
pertain to [Plaintiff],”).
While Plaintiff alleges that “Defendants conspired to set a reimbursemen
t minimum for
shipping costs that is [sic] reimbursed to retailers and clearing houses
” and that “most all
Defendants have conspired to set the maximum rate they will reimburse for
coupon shipments,”
9
(Compi.
¶
42), he has not plead that Pinnacle specifically agreed to engage in underlying
unlawful acts. Rather, Plaintiff makes sweeping statements that Defendants “conspired” to set
these prices without providing any substantive information that would give rise to a “reasonable
inference of a conspiracy.” Lynn, 2006 WL 1582042, at *3
Accordingly, this Court finds that Plaintiff has failed to plead a conspiracy claim under New
Jersey law against Pinnacle, and Plaintiff’s conspiracy claim as against Pinnacle is hereby
dismissed.
K Fraud
Count Six of the Complaint purports to bring forth fraud claims against Defendants. “To
state a claim for fraud under New Jersey law, a plaintiff must allege (1) a material
misrepresentation of fact; (2) knowledge or belief by the defendant of its falsity; (3) intention
that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5)
resulting damage.” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (citing Gennari
v. Wichert Co. Realtors, 148 N.J. 582, 691 A.2d 350, 367—368 (1997). The Federal Rules of
Civil Procedure provide a heightened pleading standard for fraud claims, requiring a party
alleging fraud to “state with particularity the circumstances constituting fraud or mistake.” Fed.
R. Civ. P. 9. For example, a Plaintiff alleging fraud “must plead or allege the date, time and
place of the alleged fraud or otherwise inject precision or some measure of substantiation into a
fraud allegation.” Frederico, 507 F.3d. at 200.
Plaintiff has failed to plead any of the requirements of a fraud claim. Specifically, Plaintiff
has not identified even “a single misrepresentation of material fact” that Pinnacle allegedly
made, Accordingly, Plaintiff’s fraud claim is dismissed as against Pinnacle.
10
G. Restraint of Trade
Plaintiff also alleges that Defendants violated Section 1 of the Sherman Antitrust Act by
setting the aforementioned reimbursement minimums and maximums (CompL
“monopolizing coupon trade” (Id.
¶ 42),
¶ 51), and because Defendants “have a relationship of doing
coupon business and are joined together with other types of marketing businesses.” (Id.
¶
52.)
To defeat dismissal of a Section 1 claim, a plaintiff must sufficiently plead:
(1) that the defendants contracted, combined, or conspired among each other; (2) that the
combination or conspiracy produced adverse, anti-competitive effects within relevant product
and geographic markets; (3) that the objects of and the conduct pursuant to that contract or
conspiracy were illegal; and (4) that the plaintiff was injured as a proximate result of that
conspiracy.
Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81—82 (3d Cir. 1977).
Plaintiff has only made broad allegations as to Pinnacle’s role in this alleged anticompetitive
behavior, and as such, has ultimately not plead that: (1) Pinnacle conspired with the other
Defendants to set these minimum and maximum reimbursement rates; (2) that the prices
Pinnacle and the other Defendants allegedly set produced anti-competitive effects; (3) that this
purported agreement was illegal; or (4) that Plaintiff was injured as a result of this agreement.
Moreover, as stated above, the majority of Plaintiff’s claims regarding anticompetitive activity
on the part of Defendants specifically omit Pinnacle; instead, the claims specifically mention
certain other Defendants, such as P&G, NCH, and Inmar. Plaintiff has therefore failed to show
that he suffered an antitrust injury under 15 U.S.C.
§ 1 as a result of Pinnacle’s actions.
Plaintiff also claims that “Defendants are monopolizing coupon trade; a violation of Sec.
2 of the Sherman Anti-Trust Act.” (Compi.
¶ 51). In order to bring a Section 2 Claim, a plaintiff
must show “(1) the possession of monopoly power in the relevant market and (2) the
willful
acquisition or maintenance of that power as distinguished from growth or development
as a
11
consequence of a superior product, business acumen, or historic accident.” Eastman Kodak
Co.
v. Image Technical Servs., Inc., 504 U.S. 451, 481(1992) (quoting United States v.
Grinnell
Corp., 384 U.S., at 570—571). The injury prong requires a showing that: “(1) harm
of the type
the antitrust laws were intended to prevent; and (2) an injury to the plaintiff which flows
from
that which makes defendant’s acts unlawful.” Race Tires Am., Inc. v. Hoosier Racing Tire Corp.,
09-3989, 614 F.3d 57 (3d Cir. July 23, 2010) (quotations omitted). Plaintiff has failed
to meet
these burdens.
Plaintiff has not plead that Pinnacle was in “possession of monopoly power in the
relevant market,” Eastman Kodak C’o. at 481, as his only allegation regarding market
share was
made in regards to NCH and Inmar, who allegedly control “over 90% of all coupon redemp
tion
in the United States.” (Compi.
¶ 43)’. Plaintiff also never plead that Pinnacle engaged in the
“willful acquisition or maintenance of that power as distinguished from growth or develo
pment
as a consequence of a superior product, business acumen, or historic accident.” Eastm
an Kodak
Co. at 481.
Lastly, the Court notes that Plaintiff alleges that “Defendants violated 15 U.S.C.
(Compi.
§
28.”
¶ 67). However, because this statute was repealed in 1984, the Court will need not
address these claims. See Pub. L. 98-620,
§ 402(11), 98 Stat. 3358 (1984). Accordingly, Plaintiff
has failed to plead that Pinnacle engaged in anticompetitive activity that resulted in
a restraint of
trade, and this count is dismissed against Pinnacle.
CONCLUSION
‘Plaintiffs also claimed that “Inmar and NCH control approximately ninety-five
percent
12
__________
_________
For the reasons above, the Court grants Defendant’s Motion to Dismiss. (ECF No. 20.)
An appropriate Order accompanies this Opinion.
—
DATED October
,
/_
—
———-
2015
JO%1L. LINARES
UNITED STATES DISTRICT JUDGE
(95%) of the total vendor coupon redemptions, reclusive of P&G coupons.”
13
(Compi.
¶ 16).
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