Trisvan v. Burger King Corp.

• Decision Date: 30 March 2021
• Docket Number: 19-CV-6396 (MKB)
• Parties: JOHN TRISVAN, Plaintiff, v. BURGER KING CORPORATION, RESTAURANT BRANDS INTERNATIONAL, and TIM HORTONS INCORPORATED, Defendants.
• Court: U.S. District Court — Eastern District of New York

JOHN TRISVAN, Plaintiff, v. BURGER KING CORPORATION, RESTAURANT BRANDS INTERNATIONAL,and TIM HORTONS INCORPORATED, Defendants.

19-CV-6396 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 30, 2021

NOT FOR PUBLICATION

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff John Trisvan, proceeding pro se, commenced the above-captioned action against Defendant Burger King Corporation ("Burger King") on November 6, 2019, alleging that he suffered food poisoning after eating at a Burger King restaurant in Brooklyn, New York, and seeking relief pursuant to the Federal Trade Commission Act of 1914, 15 U.S.C. §§ 45 and 52, and Article 2 of the Uniform Commercial Code (the "U.C.C."). (Compl. 1, 3-4, Docket Entry No. 1.)¹ By Memorandum and Order dated March 2, 2020, the Court granted Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), dismissed the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and allowed Plaintiff to file an amended complaint within thirty days. (Mem. and Order dated Mar. 2, 2020, Docket Entry No. 5.) On April 1, 2020, Plaintiff filed an Amended Complaint adding Restaurant Brands International ("Restaurant Brands") and Tim Hortons Incorporated ("Tim Hortons") as Defendants and seeking relief for the alleged U.C.C. violation pursuant to the Court's diversity jurisdiction.(Am. Compl., Docket Entry No. 7.) By Memorandum and Order dated April 24, 2020, the Court dismissed Plaintiff's Amended Complaint without prejudice for lack of subject matter jurisdiction and allowed him to file a second amended complaint within thirty days. (Mem. & Order dated Apr. 24, 2020, Docket Entry No. 8.) On May 22, 2020, Plaintiff filed a Second Amended Complaint ("SAC") against Burger King, Restaurant Brands, and Tim Hortons reasserting his state law claim under the U.C.C. and adding claims that Defendants violated the "Sherman/Clayton Act" and the Magnuson-Moss Warranty Act.² (SAC 4, 6-7, Docket Entry No. 9.) For the reasons set forth below, the Court dismisses the SAC.

I. Background

The Court assumes the truth of the factual allegations in the SAC for the purposes of this Memorandum and Order.

Plaintiff alleges that on November 6, 2016, he purchased food from a Burger King restaurant located at 1297 Fulton Street in Brooklyn and "began having abdominal pains" after "eating the meal at his residence." (Id. at 3.) Plaintiff sought medical treatment at Woodhull Medical Center, "where . . . it was confirmed that [he] was suffering [from] a viral infection stemming from goods consumed from Defendant's establishment" and he was diagnosed with "gastroenteritis[,] colitis, and cystitis." (Id.) Plaintiff later discovered that the same Burger King had been "penalized" in 2014 and 2015 for failing to maintain food at proper temperatures andthat it had been fined twice in 2016, once in 2017, and twice in 2019 for sanitary violations. (Id. at 4-5.) In addition, Plaintiff learned that "traces of equine, rat, and swine meat [have been] found in [Defendants'] meat products" generally. (Id. at 5.)

Plaintiff alleges that Defendants engaged in "deceptive and unfair acts . . . that failed to conform to safety regulations and provisions" by selling him goods that were "not suitable for sale" in violation of the U.C.C. (Id. at 5, 7.) Plaintiff also alleges that Defendants engaged in "fraudulent monopolistic behavior, false advertisement[,] and deceptive marketing" in violation of the "Sherman/Clayton Act" and the Magnuson-Moss Warranty Act by selling meat products that have been found to contain traces of pork, which Plaintiff cannot eat due to his Muslim faith. (Id. at 5-6.) Plaintiff seeks $300,000 in "punitive and compensatory relief." (Id. at 7.)

II. Discussion

a. Standard of review

A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Benefit Guar. Corp. ex rel. Saint Vincent Cath. Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed to be true, this principle is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. In reviewing a pro se complaint, a court must be mindful that a plaintiff's pleadings must be held "to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see alsoHarris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, courts "remain obligated to construe a pro se complaint liberally"). Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if the Court determines it "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

In addition, pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, if a court "determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3); see also Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) ("A district court properly dismisses an action under [Rule 12(b)(1) of the Federal Rules of Civil Procedure] for lack of subject matter jurisdiction if the court 'lacks the statutory or constitutional power to adjudicate it.'" (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000))); Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) ("[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking, the action must be dismissed.").

a. Plaintiff fails to state his federal claims

Plaintiff appears to invoke the Court's federal question jurisdiction by citing the "Sherman/Clayton Act" and the Magnuson-Moss Warranty Act. (SAC 6-7.)

Federal courts are courts of limited jurisdiction and may not hear cases if they lack subject matter jurisdiction over the issues presented. Lyndonville Sav. Bank & Tr. Co., 211 F.3d at 700-01. "In 28 U.S.C. §§ 1331 and 1332(a), Congress granted federal courts jurisdiction over two general types of cases: cases that 'aris[e] under' federal law, § 1331, and cases in which theamount in controversy exceeds $75,000 and there is diversity of citizenship among the parties, § 1332(a)." Home Depot U.S.A., Inc. v. Jackson, 587 U.S. ---, ---, 139 S. Ct. 1743, 1746 (May 28, 2019) (alteration in original). Federal question jurisdiction provides federal courts jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Bounds v. Pine Belt Mental Health Care Res., 593 F.3d 209, 215 (2d Cir. 2010) (quoting 28 U.S.C. § 1331). A plaintiff properly invokes section 1331 jurisdiction when he or she pleads a colorable claim "arising under" the Constitution or laws of the United States. Id.; see also Fairfield Cnty. Medical Ass'n v. United Healthcare of New Eng., Inc., 557 F. App'x 53, 55 (2d Cir. 2014) ("A cause of action 'arises under' federal law and thus confers subject matter jurisdiction pursuant to 28 U.S.C. § 1331 'when the plaintiff's "well-pleaded complaint" raises an issue of federal law.'" (quoting New York v. Shinnecock Indian Nation, 686 F.3d 133, 138 (2d Cir. 2012))).

i. Antitrust Claims

Plaintiff alleges that he was "acting as [a] consumer and business man engaged in a business/contractual transaction" when he "bought goods from Defendants' business establishment to sell," and that Defendants, "unbeknownst to Plaintiff[,] were involved in bad monopolistic conduct, leaving such business transaction ob[t]ained under fraud in violation of the Sherman/Clayton Act." (SAC 6.)

"Section 1 of the Sherman Act prohibits '[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.'" US Airways, Inc. v. Sabre Holdings Corp., 938 F.3d 43, 54 (2d Cir. 2019) (alteration in original) (quoting 15 U.S.C. § 1). However, "[s]ection 1 of the Sherman Act does not itself provide a private right of action." In re Publ'n Paper Antitrust Litig., 690 F.3d 51, 62 (2d Cir. 2012).Rather, "[s]ection 4 of the Clayton Act establishes a private right of action for violation of federal antitrust laws, permitting 'any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws' to sue in federal court." Eastman Kodak Co. v. Henry Bath LLC, 936 F.3d 86, 93 (2d Cir. 2019) (quoting 15 U.S.C. § 15(a)); In re SSA Antitrust Bonds Litig., 420 F. Supp. 3d 219, 229 (S.D.N.Y. 2019) ("[T]he private right of action to pursue antitrust claims is provided by the Clayton Act[.]" (second alteration in original) (quoting In re Vitamin C Antitrust Litig., No. 05-CV-453, 2012 WL 12355046, at *5 (E.D.N.Y. Aug. 8, 2012))); Ruotolo v. Fannie Mae, 933 F. Supp. 2d 512, 519 (S.D.N.Y. 2013) ("At the threshold, [the] [p]laintiff cannot actually sue directly under the Sherman Act, 15 U.S.C. § 1, because 'Section 1 of the Sherman Act does not itself provide a private right of action.'" (quoting In re Publ'n Paper Antitrust Litig., 690 F.3d at 62)). "Despite the broad language of the statute, courts have carefully parsed antitrust standing in order to avoid counter-productive use of antitrust laws in ways that could harm competition rather than protecting it."...