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McCracken v. Exxon/Mobil Co.

November 12, 2009


The opinion of the court was delivered by: Goldberg, J.


This case stems from Plaintiff's claim that he contracted thyroid cancer while driving vehicles fueled by Defendants' products. Plaintiff has sued a multitude of gasoline/oil companies. This is not the first time Plaintiff has raised these claims in this Court.*fn1

Defendants have filed Motions to Dismiss, which generally assert that Plaintiff's claims should be dismissed because the Court lacks subject matter jurisdiction, the complaint fails to state a claim, and the claims are barred by the applicable statute of limitations (doc. nos. 7, 8, 12, 16 and 55).*fn2 We will also consider Plaintiff's four (4) Motions for Leave to File An Amended Complaint (doc. nos. 29, 41, 44 and 48), all of which propose the same changes, and request that Defendant Sunoco, a Pennsylvania corporation, be removed from the case so that complete diversity is established under Fed. R. Civ. P. 12(b)(1).*fn3

After examining the individual counts in detail, we will grant Defendants' Motions to Dismiss. Additionally, because the proposed amendments do not cure the Complaint's deficiencies, it would be futile to allow Plaintiff leave to amend his Complaint. Consequently, Plaintiff's Motions to Amend are denied.


Plaintiff, Ted A. McCracken, filed this pro se civil product liability complaint on June 26, 2008 against gasoline manufacturers, Exxon Mobil Corporation ("ExxonMobil"), Sun Oil Company ("Sunoco"), Shell Oil Company, Texaco, British Petroleum, ConocoPhilips Company, Hess Oil Company, John DOE (Vice-President of Marketing, Exxon/Mobil Company, his predecessor and successor), John DOE 1 (Vice-President, Engineering, Exxon/Mobil Company, his predecessor and successor)*fn4 (collectively, "defendants").*fn5 As we understand Plaintiff's allegations, he claims that Defendants sold him gasoline, which he used to fuel his vehicles, allowing them to travel at increased speeds, and exposing him to heightened levels of radiation causing him to contract thyroid cancer. (Compl. ¶¶ 23-25.) Plaintiff has sued Defendants based on theories of (1) strict liability in tort, (2) failure to warn, (3) attractive nuisance, (4) breach of warranty of merchantability, (5) ultrahazardous activity, (6) negligence, (7) omissions and false representations of merchantability, (8) defective design, (9) intentional infliction of emotional distress, (10) assault and battery, (11) market share liability, (12) concerted action liability, (13) alternative liability and (14) false misrepresentation, fraudulent suppression, and fraudulent concealment.


Dismissalunder 12(b)(6)

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Fed. R. Civ. P. 8(a)(2) requires a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." According to the Supreme Court, the Rule 8 pleading standard "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007). The Iqbal Court recently summarized the pleading standard established in Twombly:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Iqbal, 129 S.Ct. at 1949 (citations omitted).

The Iqbal Court articulated two principles that underlie Twombly's holding. First, a court must accept as true all of the factual allegations made in a pleading, but not the legal conclusions. Id. Second, only a complaint that states a "plausible claim for relief survives a motion to dismiss." Id. at 1950. Determining plausibility is a "context specific task." Id. In short, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Id. (citations omitted). The Third Circuit has found that in light of Twombly, it is no longer sufficient to make an unsupported statement asserting an entitlement to relief; instead a complaint must state a claim and the grounds supporting the claim. Phillips v. County of Allegheny, 515 F.3d 224, 233-34 (3d Cir. 2008) (citing Twombly, 127 S.Ct. at 1969 n.8).

Pro se complaints such as the one under consideration here, are to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Bieros v. Nicola, 839 F.Supp. 332, 334 (E.D. Pa. 1993). However, even liberally construed complaints must have specific facts supporting their allegations. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (citing Kaylor v. Fields, 661 F.2d 1177, 1183 (8th Cir. 1981)). Pro se complaints may be dismissed forfailure to state a claim under Rule 12(b)(6) "if it appears beyond doubt that the plaintiff can prove no set of facts ...

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