United States District Court, S.D. West Virginia
LONNIE P. SEARS, Plaintiff,
THE KROGER CO., KROGER LIMITED PARTNERSHIP I, RITE AID CORPORATION, and RITE AID OF WEST VIRGINIA, INC., Defendants.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE
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).
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
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.”).
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 Virginia
Code § 46-2-301 (a general obligations provision of the
Uniform Commercial Code).
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.
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.
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 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.
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 futile; and that no private right of action exists for the
plaintiff's state law claims, this action must be
it is ordered as follows:
1. That the plaintiff's objections to the PF&R be,
and they hereby are, overruled.
2. That the magistrate judge's Proposed Findings and
Recommendation be, and they hereby are, adopted and
incorporated in full. Pursuant to L.R. Civ. P. 16.1, it is
ORDERED that following dates are hereby fixed as the time by
or on which certain events must occur: 28/2016 Motions under
F.R. Civ. P. 12(b), together with
3. That the three pending motions to dismiss be, and they
hereby are, granted.
4. That this civil action be dismissed and stricken from the