Harris v. McDonald's Corp.

• Citation: 901 F. Supp. 1552
• Decision Date: 03 April 1995
• Docket Number: No. 94-1067-CIV-T-17.,94-1067-CIV-T-17.
• Parties: Beverly C. HARRIS, as Legal Guardian and Parent of Malcolm C. Youmans, Plaintiffs, v. McDONALD'S CORPORATION, d/b/a McDonald's Restaurant, 3411 N. Busch Blvd., Tampa, Florida, Defendant.
• Court: U.S. District Court — Middle District of Florida

901 F. Supp. 1552

Beverly C. HARRIS, as Legal Guardian and Parent of Malcolm C. Youmans, Plaintiffs, v. McDONALD'S CORPORATION, d/b/a McDonald's Restaurant, 3411 N. Busch Blvd., Tampa, Florida, Defendant.

No. 94-1067-CIV-T-17.

United States District Court, M.D. Florida, Tampa Division.

April 3, 1995.

COPYRIGHT MATERIAL OMITTED

Beverly C. Harris, Tampa, FL, pro se.

Ricardo Antonio Fernandez, H. Hamilton Rice, III, Shackleford, Farrior, Stallings & Evans, P.A., Tampa, FL, for defendant McDonalds Corporation.

ORDER ON MOTION TO DISMISS

KOVACHEVICH, District Judge.

This cause is before the Court on Defendant McDonald's Corporation's Motion to Dismiss Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1) (Dkt. No. 4). Plaintiff has filed a Response in opposition to Defendant's Motion to Dismiss, reasserting proper jurisdiction (Dkt. No. 8).

I. BACKGROUND

A. Facts

The events giving rise to this case are as follows: Plaintiffs, mother and her eight year old son, purchased and consumed two hamburgers and an order of french fries at the drive-in of Defendant's restaurant on February 26, 1994. Several hours later, the child, Malcolm, became ill, remaining so until the next day when he was diagnosed at the emergency room of St. Joseph's Hospital with "gastroenteritis". That diagnosis was confirmed the following day by the family pediatrician.

Plaintiff reported the incident promptly to Defendant, but efforts by Plaintiff and her agents, a neighborhood association, to settle the case with Defendant and the adjuster for its insurance carrier proved futile.

B. Legal Posture

Plaintiffs filed suit pro se in this Court on July 7, 1994, asserting jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 1343, Federal Food and Drug Administration Rules and the Fourteenth Amendment to the United States Constitution.

Plaintiffs support Federal question jurisdiction by allegations: 1) that Defendant violated their civil rights and F.D.A. Rules by selling them tainted meat; 2) that in doing so, Defendant acted under "color of state health laws", and violated "conduct secured by the Fourteenth Amendment", thereby invoking 42 U.S.C. § 1983; 3) that Defendant further violated the Fourteenth Amendment by failing to afford Plaintiffs a fact-finding investigation after notice of the incident, thus treating Plaintiffs differently than white citizens because they are black.

Defendant argues the insufficiency of the allegations of the Complaint to support any of the asserted grounds for jurisdiction, and urges this Court to dismiss Plaintiffs' pro se Complaint for lack of federal question jurisdiction.

More specifically, Defendant urges that: 1) Federal question jurisdiction cannot be supported by FDA Rules without Plaintiff's citation of a specific rule demonstrating an FDA violation by Defendant; 2) Federal question jurisdiction cannot be supported by the Fourteenth Amendment since a violation of that Amendment can only occur by action of the State, or one acting on behalf of the State, or performing a State function, and Defendant is a private corporation not included in any of those categories; 3) Federal question jurisdiction cannot be supported by 42 U.S.C. § 1983, which like the Fourteenth Amendment can only be violated through a prohibited action by the State or a State actor, and Defendant is neither; and 4) Federal question jurisdiction cannot be supported by vague, conclusory and incomprehensible allegations of failure to afford Plaintiffs a fact-finding investigation, and disparate discriminatory treatment of Plaintiffs because they are black.

II. STANDARD OF DETERMINATION

A motion to dismiss under Fed. R.Civ.P. 12(b)(1) attacks the jurisdictional sufficiency of the complaint as a matter of law. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir.1988), reh'g denied en banc, 896 F.2d 479 (11th Cir.1989), cert. denied, 495 U.S. 957, 110 S.Ct. 2562, 109 L.Ed.2d 744 (1990).

Pleadings of a pro se litigant must meet minimal pleading standards; however, the pro se litigant's complaint is to be held to less stringent standards than formal pleadings drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Byrd v. Stewart, 811 F.2d 554 (11th Cir.1987).

In ruling on a Motion to Dismiss, a trial court is required to assume that all factual allegations are true. United States v. Gaubert, 499 U.S. 315, 327-28, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). A court must view the complaint in the light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Sofarelli v. Pinellas County, 931 F.2d 718 (11th Cir.1991). But when, on the basis of a dispositive issue of law, no construction of the factual allegations of a complaint will support the cause of action, dismissal of the complaint is appropriate. Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991), Powell v. United States, 945 F.2d 374 (11th Cir.1991).

III. DISCUSSION

A. 28 U.S.C. § 1331: Federal Question Jurisdiction

Federal question jurisdiction exists for "all civil actions arising under the Constitution, laws or treaties of the United States". 28 U.S.C. § 1331.

An action "arises under" federal law when it is apparent from the face of the plaintiff's well-pleaded complaint that the plaintiff's cause of action is itself created by federal law, or if based upon state law, that a federal law which creates a cause of action is an essential component of the plaintiff's claim. Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). Western Union Int'l v. Data Dev., 41 F.3d 1494 (11th Cir.1995).

1. Federal Food, Drug and Cosmetic Act (FDCA)

In Merrell Dow, the seminal case on federal question jurisdiction, the federal statute upon which the Plaintiff relied for jurisdiction was the Federal Food, Drug, and Cosmetic Act (FDCA), the same statute at issue in the case before this Court. Id.

Both parties in Merrell concurred with the conclusion of the Sixth Circuit that the FDCA does not create or imply a federal private right of action for individuals injured in consequence of a violation of its provisions. Based upon that concurrence, the Supreme Court held that Plaintiff's claims did not depend on a question of federal law and that therefore, the complaint did not state a claim "arising under" the Constitution laws or treaties of the United States so as to confer federal question jurisdiction under § 1331. Merrell Dow, 478 U.S. at 817, 106 S.Ct. at 3236-37. Western Union, 41 F.3d at 1497. Accord, Pacific Trading v. Wilson, 547 F.2d 367, 371 (7th Cir.1976).

2. Federal Food and Drug Administration Rules (FDAR)

Similarly, in the case before this Court, and contrary to Defendant's contention, it is not Plaintiff's failure to identify the violation of a specific FDCA provision or FDA Rule that precludes this Court's jurisdiction under the FDCA. Fed.R.Civ.P. 8 does not require precise numbering of statutes and provisions to state a cause of action, only a short plain statement sufficient to give notice to a defendant of the nature of the claim asserted against it. Rather, it is the total absence of a private right of action under the statute upon which Plaintiffs' claim relies, which obviates the federal question upon which this Court's jurisdiction depends. Merrell Dow, 478 U.S. at 817, 106 S.Ct. at 3236-37.

Obviously the FDCA, as the enabling Act which created the FDA, determines the scope of FDA Rules, which can only elaborate upon, not extend or contravene, the basic parameters of the parent FDCA Act.

The Court notes that even if a private right of action under FDCA was otherwise available, restaurants as a discrete category have been specifically exempted from the Act and Rules. 21 U.S.C. § 661(c)(2), 9 C.F.R. § 303.1. Since Defendant is a restaurant, no action can lie against it under the FDCA or FDA Rules in any event.

Consequently, the FDCA provisions and FDA Rules are both unavailable as a basis for federal question jurisdiction in this case. Thus, pursuant to Fed.R.Civ.P. 12(f), this Court orders all reference to the FDA Rules specified in the Complaint as relative to jurisdiction, stricken from Plaintiff's Complaint. However, reference to violations of FDCA provisions or FDA Rules, as a basis for negligence per se, are not to be stricken.

B. 28 U.S.C. § 1343: Civil Rights Jurisdiction

"The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any person ...; (3) to redress the deprivation, under color of any state law, of any right, privilege or immunity secured by the constitution of the United States or by any Act of Congress providing for equal rights of citizens . . .; (4) to recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights...." 28 U.S.C. § 1343.

As an initial matter, the Court notes that 28 U.S.C. § 1331 alone is sufficient to establish jurisdiction over civil rights issues without invoking § 1343. 28 U.S.C. § 1331 is the more comprehensive in scope of the two jurisdictional statutes, and encompasses the subject matter of § 1343. At the time of the enactment of § 1343, § 1331 was limited by a jurisdictional amount which was subsequently eliminated. The main purpose for the enactment of § 1343 was to provide a jurisdictional basis for civil rights claims without the limiting requirement of a jurisdictional amount. Thus at present, § 1343 is redundant. ERWIN CHEMERINSKY, FEDERAL JURISDICTION 249...