Wallace et al v. The Jim Pattison Corporation

Filing 34

ORDER granting 24 Motion for Judgment on the Pleadings and the Plaintiff's Complaint is DISMISSED without prejudice to file an amended complaint within 21 days of the filing date of this order. The parties are reminded to read the order in its entirety for critical information and deadlines. Signed by Senior Judge James C. Fox on 8/14/2013. Copy sent to the plaintiffs via US Mail. (Edwards, S.)

Wallace et al v. The Jim Pattison Corporation

Doc. 34

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:12-CV-94-F
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EVERETT WARNER WALLACE, JR.,
MELODY CHARLES WAGNER,
Plaintiffs,
v.
THE JIM PATTISON CORPORATION
C.E.O. OF GUINNESS WORLD RECORDS,
Defendant.

ORDER

This matter is before the court on the Motion for Judgment on the Pleadings [DE-24] filed by
Defendant Guinness World Records, Limited ("GWR"). 1

I. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs Everett Warner Wallace, Jr., and Melody Charles Wagner, proceeding pro se,
initiated this action by filing a Complaint in this court on April16, 2012. In the Complaint, Plaintiffs
allege the following:
The Jim Pattison corporation is a company that catalogues world records for both
human achievement and records of the natural world. We are holders of several
Guinness World Records for growing the worlds [sic] tallest Zinnia and Marigold
flowers grown from the seed stock developed by Everett's belated parents. We have
a preponderance of clear and convincing document evidence that will prove the
corporation for a number of years has committed fraud in numerous ways by making
materially false, fictitious and fraudulent representation [sic]. The corporation has
submitted false writings via media, including mail, telephone and through the internet.
Also, we have found beyond a reasonable doubt that the corporation is printing
fraudulent records against their own entry rules. Wthe corporation is doing is a crime,

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As discussed below, counsel for GWR contends that Plaintiffs have not identified the
proper party defendant in this case.
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Dockets.Justia.com

a civil law violation, and our constitutional rights have been violated.
Compl. [DE-l] p.l Plaintiffs seek the following relief:
(a) We are urging the Jim Pattison corporation to shut down the Plaint world category
inorder [sic] to put a stop to the corruption that has been in the system for many years.
(b) We seek compensation in the ammount [sic] of$1,000,000 for the illegal wrong
doing that has been committed against us for the last nine years.
Id. p. 2.

On May 24, 2012, Alistair Richards, managing director of Guinness World Records Limited,
filed a "Response to Complaint" [DE-5] "on behalf and at the request of [its] parent company, the Jim
Pattison Group." Response to Compl. [DE-5] p.l. The Clerk of Court construed the Response to be
an Answer to the Complaint, and accordingly caused an Order For Discovery Plan [DE-6] to be filed
on May 31,2012.
On June 28, 2012, Plaintiffs filed a "Response to Mr. Alistair Richards Managing Director
for Guinness World Records for the Defendant The Jim Pattison Corporation-C.E.O. ofGuinness
World Records under date May 21, 2012" [DE-10] and attached several exhibits thereto. Plaintiffs
include a number of additional allegations in this Response, including the following:
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Plaintiffs' World Record for Tallest Zinnia, measured on October 23, 2008,
was not certified by Guinness World Records until November 16, 2010, or
more than two years after the fact, in violation of "Guinness World Records
entry rules"
Guinness World Records certified, on November 23,2009, Plaintiffs' World
Record for Tallest Marigold ("the 13-foot Marigold"), which was six years
after Plaintiff filed the application, again in violation of "entry rules"
Plaintiffs hold 16 Guinness World Records "that are in violation of the
Guinness World Records entry rules that are not worth the paper they are
written on because the Certificates are all Fraudulent"
Plaintiffs were informed that the 13-foot Marigold had been added to the
"database," but that was a lie.
Plaintiffs were not given records for tying previous records for Tallest
Marigold and Tallest Zinnia.

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Despite the Plaintiffs' 13-foot Marigold being certified as the Tallest Marigold
in November 2009, a shorter marigold grown by a third person was recognized
as the Tallest Marigold in the "Guinness World Record Book of 2010,"
published in September 2009.
In 2011, Plaintiffs submitted another application, this time for a 16-foot
Marigold. Plaintiffs were informed that they were certified for a world record,
but instead ofbeing certified for the 16-foot Marigold, the letter referenced the
13-foot Marigold.

Response [DE-10].
Subsequently, the Clerk of Court forwarded the instant case for the undersigned's review,
noting that both the named defendant-The Jim Pattison Corporation-and the organization purporting
to file a response to the Complaint on the named defendant's behalf-Guinness World Records-are
organizational entities which may not proceed pro se in this court. In an Order filed on August 22,
2012 [DE-5], the court sua sponte ordered that the document filed by Alistair Richards be stricken
from the record, due to the fact that Mr. Richards is not a licensed attorney permitted to practice in
this court.
Two days later, an Answer [DE-12] was filed by counsel on behalf ofGWR. In the Answer,
GWR asserts that the defendant named in the caption does not exist, and that the Jim Pattison
Corporation is the parent company ofGWR. Answer [DE-12] p. 1, n.l.
On January 25, 2013, Plaintiffs filed a document captioned "Notice of Motion to Secure
Marigold Flower Records 2003" [DE-22]. Therein, Plaintiffs ask the court to order Defendant to
produce certain records, state that they will not consent to magistrate judge jurisdiction, and state that
they believe the undersigned has the ability to shut down the "Plant World Category" of the Guinness
World Records. On February 15,2013, Defendant filed a response to Plaintiffs "Notice ofMotion"
and a Motion for Judgment on the Pleadings [DE-24].

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In response to Defendant's Motion for Judgment on the Pleadings, Plaintiffs filed a document
captioned "MOTION INQUIRY" [DE-27]. Therein, Plaintiffs do not make any substantive response
to Defendant's arguments raised in the Motion for Judgment on the Pleadings,, but instead state the
following:
The Attorney's [sic] for the Defendant has informed the Plaintiffs [sic] that
The Honorable James C. Fox U.S. District Senior Judge, does not have the authority
or power to interfere by injunction in a legitimate business enterprise.
Having said that, the Attorney's [sic] for the Defendant are telling the
Plaintiffs that this Honorable Court does not have the power or the authority to even
render a decision in this matter that has been pending before this Honorable Court
since April16, 2012, however, the Attorney's [sic] are asking this Honorable Court
to deny our entire complaint, because they say you have no authority to rule on this
matter that is pending.
Plaintiffs [sic] request this Honorable Court to make an explicit finding as to
where this Court stands on this very important issue.
Motion Inquiry [DE-27] p. 1.
In an Order filed June 14, 2013 [DE-28], the court denied the Plaintiffs Motion to Produce,
observing that Plaintiffs failed to include a certification that they had in good faith conferred or
attempted to confer with Defendant, pursuant to Rule 37. The court also observed that it appeared that
Plaintiffs failed to serve Defendant with a request for production of documents pursuant to Rule 26.
Out of an abundance of caution, the court stated, in response to Plaintiffs' inquiry, that it does have
authority to rule on the pending Motion for Judgment on the Pleadings, and allowed Plaintiffs
additional time to file a substantive response to the motion.
Plaintiffs timely filed a response. Therein, Plaintiffs ask the court to reconsider the portion of
its June 14,2013, Order denying their Motion to Produce. Plaintiffs also make a number of further
factual allegations and requests for relief, including the following:
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The Guinness World Records transferred the Claim ID Number between the

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16-foot Marigold and 13-foot Marigold.
"The Records Management Team Guinness World Records" transferred the
Membership Number between the Plaintiffs' Zinnia records.
An employee of Guinness World Record changed the record text on one of
Plaintiffs' Zinnia records without Plaintiffs' permission.
Plaintiffs, for a time, marketed their zinnia seeds, but stopped marketing them
in 2007 because Plaintiffs felt Defendant's alleged errors in made their World
Records "not Genuine."
Plaintiffs never received the "Original Standard Certificate" (as opposed to
"Paper Copies, Repeat Copies, and Duplicate Copies") they paid Defendant
for.
Plaintiffs clarify they no longer seek the actual shut down of the "Plant World
Category," but rather,just an overhaul of the "system that is in place, because
the system is Arbitrary and Capricious."

July 9, 2013 Amended Response [DE-30]. Defendant filed a Reply [DE-32], and Plaintiffs, without
permission from the court, filed a Sur-reply [DE-33]. 2 The Motion for Judgment on the Pleadings
is ripe for disposition.

II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) provides that "[a]fterthe pleadings are closed-but early
enough not to delay trial-a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c).
"[T]he defense of failure to state a claim upon which relief can be granted as set forth in Rule 12(b)( 6)
may be raised by motion for judgment on the pleadings." Burbach Broad Co. ofDel. v. Elkins Radio

2

In the Sur-reply, Plaintiffs take umbrage at Defendant's counsel referring to the
numerous exhibits attached to their filings as "miscellaneous documents." Plaintiffs should be
aware that the undersigned's practice preferences provide the following:
Judge Fox is zealously protective of the integrity of the federal court and the legal
profession. Counsel are cautioned that gamesmanship, sandbagging, name-calling
or any other type of behavior unbecoming a member of the bar of this court will
not be tolerated.
See Practice Preferences-The Honorable Senior United States District Judge James C. Fox,
available at http://www.nced.uscourts.gov/judges/foxpref.aspx. Although Plaintiffs are
proceeding prose, and are not members of the legal profession, they still must conduct
themselves with civility in this court.

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Corp., 278 F.3d 401, 405 (4th Cir. 2002). See also FED. R. CIV. P. 12(h)(2). When faced with a
motion for judgment on the pleadings, courts apply the "same standard for Rule 12(c) motions as for
motions made pursuant to Rule 12(b)(6)." Elkins Radio, 278 F.3d at 405-06.
That is, a court must determine the legal sufficiency of the complaint. See Ashcroft v. Iqbal,
129 S.Ct. 193 7, 1949-50 (2009); Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In so doing,
the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can
be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
However, the" '[:fJactual allegations must be enough to raise a right to relief above the speculative
level' and have 'enough facts to state a claim to relief that is plausible on its face.' " Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599,616 n.26 (4th Cir. 2009) (citing Twombly, 550 U.S.
at 555 (2007). Moreover, although the court draws all reasonable factual inferences in a plaintiffs
favor, the court is not obligated to accept a complaint's legal conclusions drawn from the facts. Iqbal,
129 S.Ct. at 1949-50. Nor must the court accept as true "unwarranted inferences, unreasonable
conclusions, or arguments." Giarratano v. Johnson, 521 F .3d 298, 301-02 (4th Cir. 2008)( quotations
omitted).
The standard for evaluating sufficiency of the pleading in the instant case is particularly
flexible because "[a] document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson, 551 U.S. at 93 (internal citation omitted). Nonetheless, a prose plaintiff may
not simply present conclusions to the court, but must "allege with specificity some minimum level
of factual support" for his claim in order to avoid dismissal. White v. White, 886 F .2d 721, 724 (4th
Cir. 1989); see also Weller v. Dep 't of Soc. Serv., 901 F.2d 387, 391 (4th Cir. 1990) ("While prose

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complaints may represent the work of an untutored hand requiring special judicial solicitude, the
Court cannot act as plaintiffs counsel and read claims into the complaint that are not otherwise
presented.") (internal quotations and citations omitted).

III. ANALYSIS
Defendant moves for judgment on the pleadings, arguing that there is no legal or factual basis
for the relief sought by Plaintiffs in the Complaint. The court agrees.
As detailed above, in the Complaint Plaintiffs "seek compensation in the amount of
$1,000,000.00" and "urg[e] the Jim Pattison corporation to shut down the Plant world category
inorder [sic] to put a stop to the corruption that has been in the system for many years." Compl. [DE1] p. 1. Broadly construing the Complaint, the court discerns that Plaintiffs are seeking equitable relief
and compensatory damages for Defendant's alleged fraud, 3 based on their allegations that ( 1)
Defendant "for a number of years has committed fraud in numerous ways by making materially false,
fictitious and fraudulent representation[ s] ;" (2) Defendant "has submitted false writings via the media,
including mail, telephone and through the internet," and (3) Defendant "is printing fraudulent records
against their own entry rules." !d. Plaintiffs' conclusory allegations, however, are insufficient to state
a claim for fraud.

3

The Complaint could also perhaps be construed as attempting to state a claim under 42
U.S.C. § 1983 for alleged violations of Plaintiffs' unspecified "constitutional rights." See West v.
Atkins, 487 U.S. 42, 48 (1988) ("To state a claim under§ 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color of state law."). Any such
claim fails, however, because, inter alia, there is no suggestion that Defendant acted under color
of law. Phillips v. Pitt Cnty. Mem 'l Hasp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that a
private party's actions may be deemed "state action" only when "the state has so dominated such
activity as to convert it to state action").
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To state a claim for actionable fraud under North Carolina law, 4 a plaintiff must allege facts
showing the following: " '(1) False representation or concealment of a material fact, (2) reasonably
calculated to deceived, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting
in damage to the injured party.'" Forbis v. Neal, 361 N.C. 519,526-27,649 S.E.2d 382,387 (2007)
(quoting Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E. 2d 494, 500 (1974)). Additionally, the
Federal Rules of Civil Procedure require that "special matters," such as fraud claims, be pleaded with
particularity. See FED. R. CIV. P. 9(b) ("In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity."). The "circumstances" of a fraud
claim that must be pleaded with particularity include "the time, place, and contents of false
representations, as well as the identity of the person making the representations and what they
obtained thereby." Harrison v. Westinghouse Savannah River Co., 176 F .3d 776,784 (4th Cir. 1999).
In this case, the Complaint is devoid of factual details that would satisfy Rule 9(b)' s particularity
requirements or that would give rise to a plausible claim of fraud. Simply stating the label "fraud"
numerous times-which is in essence all Plaintiffs have done in the Complaint- is not sufficient to
state a claim for fraud. See Twombly, 550 U.S. at 555 (explaining that a complaint does not need
detailed factual allegations but must have "more than labels and conclusions). Accordingly, to the
extent that Plaintiffs attempt to state a claim for fraud, Defendant's motion for judgment on the
pleadings is ALLOWED. 5

4

The court assumes, for purposes of this motion, that North Carolina law governs any
tort claims asserted by Plaintiffs.
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In so ruling, the court only has considered the original Complaint [DE-l] and the
Answer [DE-12] filed by Defendant. See Dobson v. Central Carolina Bank & Trust Co., 240 F.
Supp. 2d 516, 519 (M.D.N.C.) ("In a judgment on the pleadings setting, a court is strictly
constrained to base its decision solely on information obtained from the pleadings."); see also
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The court is cognizant that it has the discretion to dismiss a claim with or without prejudice,
and where a defect in the complaint is curable, a claim should be dismissed without prejudice. See

Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir. 1999) (explaining that ordinarily a court, when
ruling on a motion to dismiss, should allow a plaintiff to file at least one amended complaint "
'regardless ofhow unpromising the initial pleading appears because except in unusual circumstances
it is unlikely that the court will be able to determine conclusively on the face of a defective pleading
whether plaintiff can actually state a claim' ") (quoting SA CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE & PROCEDURE § 1357, at 360-67 (2d ed 1990)). As the court's
recounting of the procedural and factual history demonstrates, Plaintiffs have included additional
factual details in each of their filings with the court, and appear to suggest that they also assert a claim
for breach of contract. Plaintiffs have not, however, moved to amend their complaint. Although the
court has doubts that the additional facts will ultimately save Plaintiffs' claims, the court is mindful
of the Fourth Circuit's admonition that a plaintiff should be given the "opportunity to cure a formal
defect in his pleading ... even though the court doubts that plaintiff will be able to overcome the
defects." Id at 252-53.
Accordingly, Plaintiffs' Complaint is DISMISSED without prejudice to Plaintiffs to file an
Amended Complaint within twenty-one days of the filing date of this Order. If Plaintiffs fail to file
an amended complaint within that time period, the court will, without further notice, issue an order

FED. R. CIV. P. 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56" and "[a]ll parties must given a reasonable opportunity to
present all the material that is pertinent to the motion."). Plaintiffs have included additional
factual details in each of their filings with the court, along with numerous exhibits. The court,
nevertheless, has not considered these additional factual allegations and exhibits when
determining whether Plaintiffs have stated a claim.

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dismissing this case with prejudice. If, however, Plaintiffs do file an amended complaint within that
time period, Defendants may file an answer or other responsive motion within the time period allowed
by the Federal Rules of Civil Procedure and the Local Rules.
Additionally, to the extent Plaintiffs ask the court to reconsider its previous order denying
their motion to produce certain records, the request is DENIED. The court has reviewed its June 14,
2013 Order [DE-28], and it is correct and in accordance with the law.

IV. CONCLUSION
For the foregoing reasons, the Motion for Judgment on the Pleadings [DE-24] is ALLOWED,
and Plaintiffs' Complaint [DE-l] is DISMISSED without prejudice to file an amended complaint
within twenty-one days of the filing date of this order. If Plaintiffs fail to tile an amended complaint
within that time period, the court will, without further notice, issue an order dismissing this case with
prejudice. If, however, Plaintiffs do file an amended complaint with the permitted time period,
Defendant may file an answer or responsive motion within the time allowed b the Federal Rules of
Civil Procedure and the Local Rules.

SO ORDERED.
This the 14th day of August, 2013.

enior United States District Judge

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