MARTUCCI et al v. PROCTER & GAMBLE, INC. et al, No. 2:2015cv04434 - Document 93 (D.N.J. 2015)
Court Description: OPINION. Signed by Judge Jose L. Linares on 11/4/15. (DD, )
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MARTUCCI et al v. PROCTER & GAMBLE, INC. et al Doc. 93 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY WILLIAM C. MARTUCCI AND WHITE CORPORATIONS I-X, Civil Action No.: 15-4434 (JLL) OPINION Plaintiffs, V.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 pursua nt to Federal Rule of Civil Procedure l2(b)(6) filed by Defendant B&G Foods Inc. (“B&G” or “B&G Foods”). (ECF No. 45, “Def’s. Br.”). Plaintiff opposes this Motion. (ECF No. 86, “P1’s. Opp. Br.”). The Court decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, B&G’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. 1 (“Compi.”) ¶ 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 B&G Foods is under contract with Defendant Inmar, Inc. (“Inmar”), Dockets.Justia.com a “redemption agent for various manufacturers’ vendor coupons” to “perform coupon processing services on [the manufacturers’] behalf” (Id. ¶ 13-14). Plaintiff states that Imnar 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). B&G Foods is “a publicly-traded company. brands.” (Def’s. Br. at 2). . . which sells well known consumer [food] Although Plaintiff has named B&G Foods as a Defendant, this company is only referenced twice in the Complaint. Specifically, “[at paragraph] 7, Plaintiff alleges that B&G Foods was a client of Inmar. [At paragraph] 14, he conten ds that B&G Foods issues vendor coupons. That is all.” (Id. at 3). Notwithstanding the lack of any direct allegations against B&G Foods, Plaintiff seeks relief as against B&G Foods, along with all other defendants, for: (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) conver sion, (4) negligent misrepresentation, (5) conspiracy, (6) fraud, and (7) restraint of trade. (Compi. at 7-22). On September 22, 2015, B&G Foods filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Def’s Br. at 1). Plaintiff submitted an Opposition which was not received by this Court until October 26, 2015, a week after Plaintiff’s Opposition was due. (See ECF No. 86). Given Plaintiff’s pro se status, this Court will nevertheless consider Plainti ff’s Opposition. LEGAL STANDARD To withstand a motion to dismiss for failure to state a claim, “a compla int must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcrofi v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 2 570 (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 defend ant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. 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. Milber g Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (citations omitted). When reviewing the sufficiency of a complaint filed by a pro se litigan t, 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 a pro se litigant’s Complaint is subject to dismissal if a Court, after liberally constru ing same, finds that the plaintiff has not met the threshold pleading standards outline d 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 informa pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) . . . counsel[sj dismissal.”). ANALYSIS 3 A. Breach of Contract In Count One of the Complaint, Plaintiff alleges that Defendants Procto r & Gamble (“P&G”), Inmar, and NCH Marketing Services, Inc. (“NCH”) signed contrac ts with Plaintiff, which were subsequently “not honored.” (Compl. ¶ 22-24). To survive dismissal of a breach of contract claim under New Jersey law, a plaintiff must allege “(I) the existen ce 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 damag es.” 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 Coyle v. Englander’s, 488 A.2d 1084, 1088 (N.J. Super. Ct. App. Div. 1985)). B&G Foods contends that Plaintiff “does not allege, because he cannot [allege], any contractual relationship with B&G Foods.” (Def.’s Br. at 5). Indeed, Plaintiff has not alleged that he has entered into a contract with B&G Foods. Instead, Plaintiff alleges that “William C. Martucci ‘s contract with Inmar, Inc. as a redemption agent for the compa nies listed in number 7 of this complaint, are in full force as if each company was in a direct contrac tual 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 B&G Foods, based on the alleged Inmar-B&G Foods contract. 1 ‘In his Opposition, Plaintiff avers that he “has represented B&G Foods, Inc. for over 20 years in the field of coupon redemption in marketing analysis.” (P1’s. Opp. Br. at 12). Plaintiff further claims that he “manufactured promotional Tee Shirts for B&G Foods in the approximate amoun t of 55,000 tee shirts” and that he was “B&G Food’s agent in the 1990’s for the redemption of coupons and market ing reports and promotional giveaways.” (Id.). In an attempt to substantiate these statements, Plaintiff attache d pictures of B&G tee shirts to his Opposition Brief. (P1’s. Opp., Exh. D). This Court fails to understand how the photos oft-shirts evidence any contract between B&G and Plaintiff. In any event, even if this Court were to accept these allegations as true, Plaintiff has not alleged that B&G somehow breached this alleged contract. 4 It appears that Plaintiff attempts to argue that he was a third-party beneficiary of the alleged contracts between B&G and Inmar. (P1’s. Opp. Br. at ¶J 4-11). Indeed, Plaintiff states that he has a “[bjridge contract” with B&G, and that they have had a “long busine ss relationship as proven by B&G Foods having paid the Plaintiff through Inmar.” (Pl.’s Opp. Br. ¶J 6-8). Specifically, Plaintiff reasons: B&G Foods, Inc. is under contract with Inmar, Inc., to represent B&G Foods in vendor couponing redemption. B&G, through Inmar, paid $1,159.33 to Plaintiff for coupons issued by B&G. B&G Foods, Inc. owes $36.22 for unpaid invoices to Plainti ff. Therefore, B&G, Inmar and Plaintiff have contracts between them for coupon redemption and reimbursement of funds. (Id. ¶ 5). Plaintiff also attached an ambiguous document to his Opposition, which he purports to be related to B&G coupons, without providing any information as to the significance or history of this document. (See Compl., Exh. A). Notwithstanding the above, Plaintiff has failed to show how he was in fact a third party beneficiary of any purported contract between B&G 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 of New Jersey v. Commonwealth Fed. Say. & Loan Ass’n of Norristown, 610 F.2d 164, 170 (3d Cir. 1979) (quoting Gold Mills, Inc. v. Orbit Proces sing Corp., 297 A.2d 203, 204 (N.J. Sup. Ct. Law Div. 1972)). Here, Plaintiff has not plead or otherwise argued that B&G and Tnmar 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 B&G. Moreo ver, Plaintiff has not directed 5 this Court to any contractual language naming him as a beneficiary of contracts between B&G and Inmar. Therefore, Plaintiff appears to be, at best, an “incidental benefic iary with no contractual standing.” Kersey v. Becton Dickinson & Co., 433 Fed. App’x. 105, 109 (3d Cir. 2011) (unpublished); see also Broadway Maint. Corp. v. Rutgers, State Univ., 447 A.2d 906, 909 (N.J. 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 inciden tal 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, Plaintiffs breach of contract claim against B&G is dismissed. B. Breach of the Covenant of Good Faith and Fair Dealing In 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, “[un the absence of a contract, there can be no breach of an implied covenant of good faith and fair dealing.” Wade v. Kessler Inst., 798 A.2d 1251, 1262 (2002) (quoting Noye v. Hoffm an-La Roche, Inc., 570 A.2d 12, 14 (N.J. Super. Ct. 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, Plainti ff has failed to sufficiently plead the prerequisite contractual relationship with B&G Foods. Accordingly, Plaintiffs claim for breach of the implied covenant of good faith and fair dealing is dismissed as against B&G Foods. C. Conversion Plaintiff also attempts to bring a claim for conversion against Defend ants. “Conversion is the exercise of any act of dominion in denial of another’s title to the chattels, or inconsistent with 6 such title.” Schenkel v. Flaster, 54 Fed. App’x. 362, 365 (3d Cir. 2002) (unpublished) (citing Mueller v. Technical Devices Corp., 84 A.2d 620, 623 (N.J. 1951)) . However, Plaintiff has failed to make any showing of the required elements of conversion. Rather, Plaintiff merely recites the elements for conversion, as follows: Upon information and belief the Defendants are illegally, wrong fully and unlawfully exercising dominion and control over funds rightfully belong ing 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 documentatio n William C. Martucci’s position as an authorized clearinghouse. (Compi. ¶J 3 1-32). 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. Jqbal, 556 U.S. at 663 (internal citations omitted); see also Twombly 550 U.S. at 544 (“[A] plaintiff’s obligat ion to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.”). Accord ingly, Plaintiff’s conversion claim against B&G Foods is hereby dismissed. D. Negligent Misrepresentation Plaintiff alleges that Defendants are liable for negligent misrep resentation. (Compi. ¶ 35-37). This Court will also construe Plaintiff’s allegations as raising a claim of breach of fiduciary duty. See Higgs, 665 F.3d at 339. It is well established that “under New Jersey law negligent misrepresentation requires a showing that defendant negligently provided false inform ation and that plaintiff incurred 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, 574 A.2d 420 (N.J. 7 1990)). Plaintiff has failed to plead, with any sort of specificity, that B&G Foods met the aforementioned requirements for negligent misrepresentation. Instead, Plainti ff states that: Upon information and belief P&G, Inmar, NCH and other listed manuf acturers violated “Uberimae Fidel” [sic] that states one must act in utmost good faith and requires making known all material facts influencing the contract. The Defendants did not maintain a fiduciary relationship with William C. Martucci. All parties must have equal knowledge of a matter in conflict. (Compi. ¶ 36). As stated above, Plaintiff has not plead a contractual relationship with B&G Foods. Thus, the doctrine of uberimmaejldei would not apply to B&G Foods, and in any event, this doctrine is inapposite to Plaintiff’s claim of negligent misrepresentation. Moreover, Plaintiff has not plead any facts to support his argument that B&G Foods was negligent in provid ing Plaintiff with false information and that Plaintiff, to his detriment, relied on this information. For these reasons, Plaintiffs negligent misrepresentation claim against B&G Foods 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.” (Comp i. ¶ 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. App’x. 704, 710 (3d Cir. 2010) (unpublished) (citing McKelvey v. Pierce, 800 A.2d 840, 859 (N.J. 2002)). Such relatio nship bestows upon the fiduciary “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 McKel vey, 800 A.2d at 860). Plaintiff has not plead anything to support the assertion that there was a fiduciary relationship between 8 him and B&G Foods. In fact, there is nothing in Plaintiff’s pleadings that suggests that B&G Foods was under any sort of “duty to act for or give advice for” Plainti ff’s benefit. Miller, 399 Fed. App’x at 710. Therefore, because Plaintiff has failed to establish the existence of a fiduciary relationship between himself and B&G Foods, Plaintiff’s claim for breach of fiduciary duty against B&G Foods is dismissed. E. Conspiracy Plaintiff further alleges that Defendants conspired against him. (Comp l. 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 existence of an unlawful purpose, or of a lawful purpose to be achieved by unlawf ul means; and (4) proof of special damages.” Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 414 (3d Cir. 2003) (citing Naylor v. Harkins, 99 A.2d 849, 855 (N.J. Ch. 1953)), modified on other grounds, 109 A.2d 19 (N.J. Sup. Ct. App. Div. 1954)). Furthe rmore, 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, 184 Fed. App’x 180, 184-85 (3d Cir. 2006) (unpublished) (citing Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005)) (internal citations omitted). However, Plaintiff limits most of the allegations as to his conspi racy claim to specific Defendants, and excludes B&G Foods from many of these claims . For instance, Plaintiff states that “Procter & Gamble violated the Security and Exchange Comm ission Act of 1934” (Compl. 9 ¶ 39), “Proctor and Gamble conspired with Inmar, Inc. to void all coupon contracts with William C. Martucci” (Compi. ¶ 40), and “Inmar corporate officers in conjunction with P&G corpor ate officers conspired to cancel William C. Martucci’s authorizations as a coupon clearinghouse” (Compi. ¶ 45). Accordingly, these claims fail to allege how B&G Foods was involved in any conspiracy against Plaintiff. If anything, these allegations seem to insinuate that B&G Foods was somehow 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 reimbu rsement 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 reimbu rse for coupon shipments,” (Compi. ¶ 42), he has not plead that B&G Foods 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, 184 Fed. App’x at 184-185. Accordingly, this Court finds that Plaintiff has failed to plead a conspiracy claim under New Jersey law against B&G Foods, and Plaintiffs conspiracy claim as against B&G Foods is hereby dismissed. F. 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 plainti ff must allege (1) a material 10 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. Weichert Co. Realtors, 691 A.2d 350, 367—368 (N.J. 1997)). The Federa l 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 mistak e.” 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 substan tiation into a fraud allegation.” Frederico, 507 F.3d. at 200. Plaintiff has failed to plead any of the requirements of a fraud claim. Specif ically, Plaintiff has not identified even “a single misrepresentation of material fact” that B&G Foods allegedly made. Accordingly, Plaintiff’s fraud claim is dismissed as against B&G Foods. G. Restraint of Trade Plaintiff also alleges that Defendants violated Section 1 of the Sherm an Antitrust Act by setting the aforementioned reimbursement minimums and maxim ums (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 pursua nt 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, 8 1—82 (3d Cir.1977). 11 Plaintiff has only made broad allegations as to B&G Foods’ role in this alleged anticompetitive behavior, and as such, has ultimately not plead that: (1) B&G Foods conspired with the other Defendants to set these minimum and maximum reimbursemen t rates; (2) that the prices B&G Foods and the other Defendants allegedly set produced anti-co mpetitive 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 B&G Foods; 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 B&G’s actions. Plaintiff also claims that “Defendants are monopolizing coupon trade; a violati on of Sec. 2 of the Sherman Anti-Trust Act.” (Compl. ¶ 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 consequence of a superior product, business acumen, or historic accide nt.” Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481 (1992) (quotin g United States v. Grinnell Corp., 384 U.S. 563, 570—571 (1966)). The injury prong requires showin a g 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., 614 F.3d 57 (3d Cir. 2010) (quotations omitted). Plaintiff has failed to sufficiently plead these elements. 12 Plaintiff has not plead that B&G Foods was in “possession of monop oly power in the relevant market,” Eastman Kodak Co., 504 U.S. at 481, as his only allegat ion regarding market share was made in regards to NCH and Inmar, who allegedly control “over 90% of all coupon redemption in the United States.” (Compl. ¶ 43)2 Nor has Plaintiff plead that B&G Foods engaged in the “willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acume n, or historic accident.” Eastman KodakCo., 504 U.S. 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 not address these claims. See Pub. L. 98-620, § 402(11), 98 Stat. 3358 (1984). Accordingly, Plaintiff has failed to plead that B&G Foods engaged in anticompetitive activity that resulte d in a restraint of trade, and this count is dismissed against B&G Foods. CONCLUSION For the above reasons, the Court grants Defendant B&G’s Motion to Dismis s. (ECF No. 45.) An appropriate Order accompanies this Opinion. DATED: November_Y2015 •/•_ —-— - —- .2 ,/ // L_— jOSE L. LINARES UNITED STATES DISTRICT JUDGE 2 Plaintiff also claimed that “Inmar and NCH control approximately ninetyfive percent (95%) of the total vendor coupon redemptions, reclusive of P&G coupon s.” (Compl. ¶ 16). 13
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