Sears v. The Kroger Company et al

Filing 42

MEMORANDUM OPINION AND ORDER the plaintiff's 41 objections to the Proposed Findings and Recommendation are overruled; adopting and incorporating the 40 Proposed Findings and Recommendation by Magistrate Judge; granting the 3 , 5 an d 8 Motions to Dismiss; directing that this civil action be dismissed and stricken from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 6/18/2018. (cc: plaintiff, pro se; counsel of record; United States Magistrate Judge Dwane L. Tinsley) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

LONNIE P. SEARS,
Plaintiff,
v.

Civil Action No. 2:17-cv-04394

THE KROGER CO.,
KROGER LIMITED PARTNERSHIP I,
RITE AID CORPORATION, and
RITE AID OF WEST VIRGINIA, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending are the following motions, all filed on
November 29, 2017: a motion to dismiss filed by the Kroger Co.
and Kroger Limited Partnership I (ECF No. 3), a motion to
dismiss filed by Rite Aid of West Virginia, Inc. (ECF No. 5),
and a motion to dismiss for lack of jurisdiction filed by Rite
Aid Corporation (ECF No. 8).
This action was previously referred to the Honorable
Dwane L. Tinsley, United States Magistrate Judge, for submission
to the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On May 23, 2018, the magistrate judge entered his PF&R
recommending that each of these motions be granted and that the

action be dismissed from the docket of the court.

On June 11,

2018, the pro se plaintiff timely objected.
The court reviews objections de novo.

Inasmuch as the

plaintiff objects to the entirety of the PF&R without specifying
the grounds of the objection, the court need not reconsider the
entirety of the magistrate judge’s recommendations anew,
however.

As the Fourth Circuit has explained in this regard,

“The Federal Magistrates Act requires a district court to ‘make
a de novo determination of those portions of the [magistrate
judge's] report or specified proposed findings or
recommendations to which objection is made.’

28 U.S.C.A. §

636(b)(1) (West 1993 & Supp. 2005) (emphasis added).”

Diamond

v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005).

See also Fed. R. Civ. P. 72(3) (“The district judge must

determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.”).
The gravamen of the complaint is that the defendants,
which are affiliated with two well-known chains of retail stores
and pharmacies, Rite Aid and Kroger, went above and beyond the
“limitations passed by [West Virginia] legislators” in
restricting the amount of pseudoephedrine a person is allowed to
purchase.

Compl. at 1.

Plaintiff claims, among other things,

that the companies’ compliance policies in this regard violate
the Equal Protection Clause of the Fourteenth Amendment, the
Privileges and Immunities Clause, and the Supremacy Clause of
2

the United States Constitution as well as the West Virginia
Business Corporation Act, W. Va. Code § 31D-3-302, and West
Virginia Code § 46-2-301 (a general obligations provision of the
Uniform Commercial Code).
The first objection pertains to the finding that the
court lacks personal jurisdiction over Rite Aid Corporation, the
parent of Rite Aid of West Virginia, Inc.

However, the

plaintiff makes no showing that would alter the personal
jurisdiction analysis laid out on pages 5-7 of the PF&R.
Relatedly, the plaintiff finds it odd that that Rite
Aid Corporation shares the “address and contact information”
with Rite Aid Hdqtrs. Corp., which in fact promulgated the
policies at issue in this case.

Insofar as the plaintiff wishes

to amend his complaint to instead bring a claim against Rite Aid
Hdqtrs. Corp., he makes no argument as to why the magistrate
judge’s proposed finding that such amendment would be futile on
the grounds of failure to state a claim is erroneous.

See PF&R

at 7.
Finally, plaintiff disputes the magistrate judge’s
finding that the defendants are private entities that are not
acting under color of state law.

Plaintiff appears to suggest

that inasmuch as the compliance policies were introduced in
response to certain legal enactments, the defendants act under
color of state authority so that federal constitutional claims

3

under the Fourteenth Amendment can proceed.

Plaintiff marshals

no persuasive authority for this claim, other than an inapposite
citation to United States v. Guests, 383 U.S. 745 (1966).

He

also makes a bare, conclusory assertion that characterizing
these policies as internal is “superfluous” which the court
takes to mean that such characterization is in error and that
the policies in question are in fact implicated with state
action.

Objections at 3.

The court does not find this attempt

to recast these defendant private corporations as state actors
persuasive.

See, e.g., Jackson v. Metropolitan Edison Co., 419

U.S. 345, 350 (1974) (noting that “[t]he mere fact that a
business is subject to state regulation does not by itself
convert its action into that of the State for the purposes of
the Fourteenth Amendment”) (cited in the PF&R at 8).

For the

reasons well set out on pages 8-9 of the PF&R, the objection is
overruled.
Magistrate Judge Tinsley has performed a thorough
analysis of the plaintiff’s various claims.

For the reasons,

more thoroughly explained in the PF&R, which include the fact
that defendants are not state actors and their actions were not
state actions; that Rite Aid Corporation does not have
meaningful contacts with West Virginia necessary to give this
court personal jurisdiction over it; that allowing amendment of
the complaint to substitute Rite Aid Hdqtrs. Corp. would be

4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
futile; and that no private right of action exists for the
THOMAS PARKER,
plaintiff’s state law claims, this action must be dismissed.
Plaintiff,
v.

Civil Action No. 15-14025

Therefore, it is ordered TERM DISABILITY PROGRAM,
THE DOW CHEMICAL COMPANY LONG as follows:
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
a Massachusetts Corporation, and
DOES 1. That the 10, inclusive,
1 THROUGH plaintiff’s objections to the PF&R be, and
they hereby are, overruled.
Defendants.
ORDER AND NOTICE
2. That the magistrate judge’s Proposed Findings and
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
Recommendation be, and they hereby are, adopted and
certain events must occur:
incorporated in under F.R. Civ. P. 12(b), together with
01/28/2016
Motions full.
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
3. That the three pending motions to dismiss be, and
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016 hereby are, for Rule 26(f) meeting.
Last day granted.
they
02/15/2016

Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.

4. That this civil action be dismissed and stricken
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
from the docket of the court.
the undersigned, unless canceled. Lead counsel
directed to appear.
02/29/2016
The Clerk Entry of scheduling order.
is directed to forward copies of this order
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
to the pro se plaintiff and United States Magistrate Judge Dwane
The Clerk is requested to transmit this Order and
L. Tinsley.
Notice to all counsel of record and to any unrepresented
parties.
DATED: June 18, 2018
DATED: January 5, 2016

5

John T. Copenhaver, Jr.
United States District Judge