MEMORANDUM and ORDER. the Court

Trisvan v. Regal Entertainment Group et al Doc. 7 Case 1:21-cv-00187-MKB-ST Document 7 Filed 07/26/21 Page 1 of 16 PageID #: 37 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------- JOHN TRISVAN, NOT FOR PUBLICATION Plaintiff, MEMORANDUM & ORDER v. 21-CV-187 (MKB) REGAL ENTERTAINMENT GROUP, CINEWORLD, and PEPSICO, Defendants. --------------------------------------------------------------- MARGO K. BRODIE, United States District Judge: Plaintiff John Trisvan, proceeding pro se, commenced the above-captioned action against Defendants Regal Entertainment Group (“Regal”) and Cineworld on January 8, 2021, alleging that he “fell ill” after consuming a soft drink and popcorn at Regal Cinemas in Brooklyn, New York, and seeking relief pursuant to the Clayton Act, the Magnuson-Moss Warranty Act (the “MMWA”), and the Uniform Commercial Code (the “U.C.C.”). (Compl. 2, Docket Entry No. 1.)1 On February 17, 2021, the Court granted Plaintiff’s application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), dismissed Plaintiff’s Clayton Act claim with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B), and dismissed Plaintiff’s MMWA and U.C.C. claims without prejudice for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. (Mem. and Order 12, Docket Entry No. 5.) The Court also granted Plaintiff leave to file an amended complaint within thirty days and advised Plaintiff that if he “intends to invoke the Court’s diversity jurisdiction over his state law 1 Because Plaintiff’s pleadings are not consecutively paginated, the Court refers to the page numbers assigned by the electronic case filing system. Dockets.Justia.com Case 1:21-cv-00187-MKB-ST Document 7 Filed 07/26/21 Page 2 of 16 PageID #: 38 claim, [he] must clearly state the basis for doing so, including facts to support the amount in controversy.” (Id.) On March 19, 2021, Plaintiff filed an Amended Complaint adding Defendant PepsiCo and claims under the Securities Act of 1933 and the Securities Exchange Act of 1934 but otherwise asserting the same facts. (Am. Compl., Docket Entry No. 6.) For the reasons set forth below, the Court dismisses the Amended Complaint. I. Background The facts as alleged by Plaintiff have not changed since he filed the Complaint, however, Plaintiff now identifies the soft drink he consumed as produced by PepsiCo and alleges that “Defendants violated the Securities Act of 1933 and Securities Exchange Act of 1934,” along with the U.C.C. and the MMWA. (Id. at 1–2.) The Court assumes the truth of the factual allegations in the Amended Complaint for the purposes of this Memorandum and Order. Plaintiff alleges that on January 12, 2018, he went to see a movie at Regal’s theatre located at 106 Court Street in Brooklyn, New York, where he “consumed a large Pepsi and popcorn” and subsequently “fell ill.” (Id. at 2.) A week later, on January 19, 2018, he went to see another movie, where he “consumed a large Pepsi and popcorn, which again gave an adverse effect similar to food poisoning, which was discovered once Plaintiff went to be seen by doctors at Woodhull Hospital.” (Id. at 2–3.) Plaintiff seeks $175,000, “the sum being [the] amount of controversy, punitive[,] and compensatory damages.” (Id. at 5.) 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 2 Case 1:21-cv-00187-MKB-ST Document 7 Filed 07/26/21 Page 3 of 16 PageID #: 39 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 also Harris 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 In Touch Concepts, Inc. v. Cellco P’ship, 788 F.3d 98, 101 (2d Cir. 2015) (stating that a court must dismiss an action “on its own initiative” pursuant to Rule 12(h)(3) if it determines that it lacks subject matter jurisdiction “because the limited subject-matter jurisdiction of the federal courts is a restraint on judicial power” (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006))); Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000) (“[F]ailure of subject matter jurisdiction is not 3 Case 1:21-cv-00187-MKB-ST Document 7 Filed 07/26/21 Page 4 of 16 PageID #: 40 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.”). b. Securities Exchange Act and Securities Act claims Plaintiff contends that: Defendants violated the Securities Act of 1933 and Securities Exchange Act of 1934 by ways of fraud and misleading statements to investors and [the Securities Exchange Committee] for which Plaintiff being an investor and recipient of their securities [on the New York Stock Exchange] suffered an injury . (Am. Compl. 4.) The Court liberally construes the Amended Complaint as asserting claims of securities fraud under section 10(b) and Rule 10b–5 of the Securities Exchange Act and sections 11 and 12(a)(2) of the Securities Act and dismisses these claims for failure to state a claim. Section 10(b) of the Securities Exchange Act makes it unlawful to “use or employ, in connection with the purchase or sale of any security . , any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe.” 15 U.S.C. § 78j(b); see also Giunta v. Dingman, 893 F.3d 73, 79 (2d Cir. 2018); Stratte-McClure v. Morgan Stanley, 776 F.3d 94, 100 (2d Cir. 2015); Dalberth v. Xerox Corp., 766 F.3d 172, 182 (2d Cir. 2014). The corresponding SEC regulation provides that: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which 4 Case 1:21-cv-00187-MKB-ST Document 7 Filed 07/26/21 Page 5 of 16 PageID #: 41 operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b–5; see also Parkcentral Glob. HUB Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 209 (2d Cir. 2014). To state a claim for securities fraud under section 10(b) or Rule 10b–5 of the Securities Exchange Act, “a plaintiff must allege that [the] defendant (1) made misstatements or omissions of material fact, (2) with scienter, (3) in connection with the purchase or sale of securities; (4) upon which the plaintiff relied, and (5) that the plaintiff’s reliance was the proximate cause of its injury.” Stichting Depositary APG Developed Mkts. Equity Pool v. Synchrony Fin. (In re Synchrony Fin. Sec. Litig.), 988 F.3d 157, 167 (2d Cir. 2021) (quoting Stratte-McClure, 776 F.3d at 100); Singh v. Cigna Corp., 918 F.3d 57, 62 (2d Cir. 2019); Schwab v. E*Trade Fin. Corp., 752 F. App’x 56, 58 (2d Cir. 2018). “Under the [third] element — fraud committed ‘in connection with the purchase or sale of any security’ — standing is limited to actual purchasers or sellers of securities.” Caiola v. Citibank, N.A., 295 F.3d 312, 322 (2d Cir. 2002) (first citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 749 (1975); and then citing Gurary v.

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