United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
Coffin, United States Magistrate Judge
an inmate at Deer Ridge Correctional Institution, paid the
full filing fee and brought an action under state law seeking
monetary damages arising from defendants' alleged false
advertising. Defendants now move for dismissal under Federal
Rule of Civil Procedure 12(b)(6) on grounds that plaintiff
fails to state a claim. For the reasons explained below,
defendants' motion should be granted and this case should
claims arise from the purchase of "iCare" packages
on Aramark Corporation's website during plaintiffs
incarceration at the Umatilla County Jail. According to
plaintiffs allegations, family members of inmates may order
and purchase iCare packages to provide inmates with "a
gift or extra commissary in the jails." Compl.
¶¶ 5, 6 (ECF No. 1). Customers who order an iCare
package are charged a shipping and handling fee and informed
that the iCare package will be delivered the following
Tuesday. Id. ¶ 8. Plaintiff alleges that
defendant "Sandi," who allegedly works for Aramark,
prints a receipt of the items and fills the order from the
commissary room located at the Umatilla County Jail.
Id. ¶ 11.
alleges that the iCare packages he received either omitted
several purchased items, substituted different items, or
included expired items. Id. ¶¶ 14, 18-19,
In particular, plaintiff alleges that his iCare "sweet
tooth package" had an expired Butterfinger candy bar and
other missing candy items. Id. at ¶ 20.
Plaintiff allegedly sent a grievance about the expired and
missing items to jail personnel and talked to Sandi. Compl.
¶ 22. Sandi apologized to plaintiff and replaced the
"sweet tooth" iCare package. Id.
¶¶ 22-24. Plaintiff also alleges that no packages
are actually shipped to the inmate so as to require a
shipping or handling fee, and that Sandi delivers the
packages at her convenience rather than by the following
Tuesday. Id. ¶ 12.
on these allegations, plaintiff asserts claims of 1) false
advertising, 2) embezzlement, 3) theft of property, and 4)
selling outdated food. Essentially, plaintiff alleges that
defendants engaged in false advertising by failing to provide
the items described on their website and failing to deliver
iCare packages by the following Tuesday. Further, plaintiff
contends that defendants committed embezzlement and theft of
property by charging for "shipping and handling"
when the items were not actually shipped to him at the
Umatilla County Jail. Plaintiff seeks $1, 500, 000 in
move for dismissal on grounds that plaintiff fails to state a
claim. Under Rule 12(b)(6), a complaint is
construed in favor of the plaintiff, and its factual
allegations are taken as true. Daniels-Hall v. Nat'l
Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). The
court need not accept as true "conclusory"
allegations, unwarranted deductions of fact, or unreasonable
inferences. Id. Instead, "for a complaint to
survive a motion to dismiss, the non-conclusory 'factual
content,' and reasonable inferences from that content,
must be plausibly suggestive of a claim entitling the
plaintiff to relief." Moss v. United States Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009). In pro se
cases particularly, the court must construe the complaint
liberally and afford the plaintiff "the benefit of any
doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th
Cir. 2010) (citation omitted). "Unless it is absolutely
clear that no amendment can cure" defects in the
complaint, "a pro se litigant is entitled to notice of
the complaint's deficiencies and an opportunity to amend
prior to dismissal of the action." Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995)
alleges that defendants' website falsely advertised that
the iCare packages would contain specific items and be
delivered on a certain day. Under Oregon law, plaintiff
arguably could bring a claim for false advertising under the
Unlawful Trade Practices Act (UTPA) or as common law claim of
fraudulent misrepresentation. The UTP A "is a statutory
scheme that provides for a civil right of action for loss of
money or property as a result of the willful use or
employment of an unlawful trade practice," and it
generally prohibits the false representation or false
advertising of goods and services. Weston v. Camp's
Lumber & Bldg. Supply, Inc., 205 Or.App. 347,
358-59, 135 P.3d 331 (2006); see Or. Rev. Stat.
§ 646.6O8(e), (i). Similarly, to state a claim for
fraudulent misrepresentation, plaintiff must allege that: 1)
defendants "made a material misrepresentation that was
false"; 2) defendants "did so knowing that the
representation was false"; 3) defendants "intended
the plaintiff to rely on the misrepresentation"; 4)
plaintiff "justifiably relied on the
misrepresentation"; and 5) plaintiff "was damaged
as a result of that reliance." Strawn v. Farmers
Ins. Co., 350 Or. 336, 352, 258 P.3d 1199 (2011).
plaintiffs allegations do not remotely suggest that
defendants advertised the iCare packages with the knowledge
and intent that packages would not contain certain items and
would be delivered in an untimely manner. In fact, plaintiff
admits that after he complained about the expired Butterfmger
and missing candy items, Sandi apologized and replaced them.
Compl. ¶¶ 22-24. At most, plaintiff alleges poor
customer service on the part of Sandi or other unidentified
Aramark employees by either failing to provide the correct
items or failing to keep sufficient items in stock at the
Umatilla County Jail. While regrettable, poor customer
service does not support a cause of action for fraud under
these circumstances. As defendants point out, "the mere
failure to keep a promise is not actionable fraud."
Defs.' Motion at 15; see also Pelletier v.
Pelletier, 29 Or.App. 717, 721, 565 P.2d 388 (1977)
("Fraud cannot, however, be predicated solely upon the
failure to perform a promise to do something in the
plaintiffs allegations regarding the shipping and handling
charges do not state a claim for false advertising or
fraudulent misrepresentation. Plaintiff alleges that
purchasers of iCare packages are charged for "shipping
and handling" even though the items are stocked out of
the jail's commissary and not shipped to the jail.
However, the billing provided by plaintiff indicates that the
purchaser was charged for "handling," not shipping.
Pl's Ex. 8 (ECF No. 18-1). Regardless, handling costs
incurred in preparing the packages are fairly represented as
costs of "shipping and handling." Plaintiff further
alleges that defendants' conduct constitutes embezzlement
and theft. However, embezzlement and theft are criminal
offenses rather than civil causes of action, and plaintiff
has no private right to enforce criminal statutes. Further,
even if the court construed plaintiffs claims as alleging the
tort of conversion - the equivalent of civil theft - his
allegations fail to state a claim. Spillino v.
Taylor, 280 Or.App. 700, 702384 P.3d 169 (2016) (stating
that conversion is "an intentional exercise of dominion
or control over a chattel which so seriously interferes with
the right of another to control it that the actor may justly
be required to pay the other the full value of the
I find that no amendment will cure the noted deficiencies.
Plaintiff does not allege a viable federal cause of action
and must rely on diversity jurisdiction, which requires an
amount in controversy of $75, 000 or more. 28 U.S.C. §
1332(a) (federal courts have jurisdiction over state law
claims when the plaintiff and the defendant are citizens of
different states and the amount in controversy exceeds $75,
000). Even if plaintiff amended his claims to allege a
cognizable state law tort or contract claim, any claim of
damages rising to the jurisdictional level of $75, 000 -
based on a few missing items of candy, chips, or soda- is so
"fanciful" as to be frivolous. Denton v.
Hernandez, 504 U.S. 25, 33 (1992); see also Russell
v. Access Securepak, Inc., 2007 WL 4170756, at *2 (E.D.
Cal. Nov. 20, 2007) (finding no diversity jurisdiction where
the plaintiffs "have not alleged conduct by defendants
which would support a punitive damages award that is
approximately 1, 500 times the amount of actual damages"
Motion to Dismiss (ECF No. 15) should be GRANTED and this
action should be DISMISSED. This recommendation is not an
order that is immediately appealable to the Ninth Circuit
Court of Appeals. Any notice of appeal pursuant to Rule
4(a)(1), Federal Rules of Appellate Procedure, should ...