Denney v. Wheatstone Corp.

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RYAN PATRICK DENNEY^[1], Plaintiff, v. WHEATSTONE CORP., Defendant.

No. 3:22-cv-00248

United States District Court, S.D. West Virginia, Huntington Division

November 10, 2022

PROPOSED FINDINGS AND RECOMMENDATIONS

Cheryl A. Eifert United States Magistrate Judge

On June 6, 2022, Plaintiff Ryan Patrick Denney filed a complaint against Wheatstone Corporation (“Wheatstone”) alleging that Wheatstone “violated anti-trust laws and committed unethical business practices” by releasing Plaintiff's name and address to a third party who used the information to steal radio equipment from Plaintiff resulting in a $100,000 loss. (ECF No. 1 at 4). Pending before the Court is Defendant's Motion to Dismiss, (ECF No. 11), pursuant to Fed.R.Civ.P. 12(b)(6).

This matter is assigned to the Honorable Robert C. Chambers United States District Judge, and is referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the following reasons, the undersigned RECOMMENDS that Defendant's Motion to Dismiss, (ECF No. 11), be GRANTED; Plaintiff's complaint, (ECF No 1), be DISMISSED; and this action be removed from the docket of the Court.

I. Relevant Facts and Procedural Background

Plaintiff states in his complaint that he has been working to build an F.M. radio station in his community and purchased radio equipment for that purpose in January 2022. (ECF No. 1 at 6). The equipment included a Wheatstone 24 Channel Mixer Board, a Wheatstone Blade 3 I.P. Receiver, and a Wheatstone M1600 Power Supply, none of which was in working order. (Id.). Over the next few months, Plaintiff purchased parts from Wheatstone in order to repair the equipment, and by the middle of March, had the equipment operational. (Id. at 6-7). Plaintiff claims that the repaired equipment is valued at $40,000. (Id. at 7).

On April 1, 2022, Plaintiff contacted the Kenova Police Department to report a burglary at his home. (ECF No. 6). An officer arrived at Plaintiff's residence and took his statement. Plaintiff reported that while he was at work that day, two men made contact with his mother, who was at Plaintiff's residence, and stated that they were from a radio station in Parkersburg. (Id. at 4). The men indicated that they were there to retrieve some radio equipment that belonged to their station and had been mistakenly delivered by FedEx to Plaintiff's home. They advised Plaintiff's mother that they had spoken with Plaintiff, and he was aware that they planned to collect the equipment. (Id.). Accordingly, Plaintiff's mother allowed them to remove the equipment from the residence and leave with it in a blue SUV, unknown make and model. (ECF No. 6 at 4). Two other witnesses observed the men speak with Plaintiff's mother and remove the property from the home. Plaintiff's mother and one of the witnesses stated that the men were wearing blue polo shirts with logos on them, as if they were in business uniforms. (Id.).

Plaintiff reported to the officer that he had not given anyone permission to take the equipment. (Id.). He explained that he had purchased the equipment, a drone, and an Xbox gaming console for $500 from an individual named Brett Collins in Huntington, West Virginia. The equipment was originally recovered from an abandoned apartment and was used as collateral for unpaid rent. (Id.). Plaintiff stated that the equipment was damaged when he bought it, and that during the week of the theft, he had contacted the manufacturer, Wheatstone Audio, to order replacement parts. At that time, Plaintiff had supplied his name, address, and the serial numbers of two of the pieces of equipment to Wheatstone. The officer contacted Wheatstone, who advised that the equipment was originally sold to a radio station in Parkersburg, West Virginia. However, Wheatstone denied that it had released Plaintiff's information. (Id.).

Plaintiff alleges that Wheatstone was the only entity that knew of his ownership of the equipment, because he had ordered parts from Wheatstone. (ECF No. 1 at 10). He asserts that he obtained the equipment legally; that the equipment was never reported stolen or missing until he reported it stolen; that Wheatstone identified the original purchaser as a station in Parkersburg, similar to what the men told his mother; and that even though Plaintiff does not know who took his equipment, it is apparent that Wheatstone released his name to the first purchaser of the equipment, which led to the equipment being taken from his residence. (Id. at 10-11). The complaint and police report do not state the current location of the equipment, or whether its location is known. (ECF Nos. 1, 6).

The identity of the men who took the equipment is also unknown. In addition to the loss of the equipment valued at $40,000, Plaintiff claims that the theft resulted in $30,000 of lost wages and a loss of $30,000 in investments. (See ECF No. 1).

On September 7, 2022, Wheatstone filed a Motion to Dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), asserting the following three grounds: (1) the complaint fails to state a viable legal cause of action; (2) its core factual allegations are based purely on speculation; and (3) it was improperly filed on behalf of a corporation by a non-attorney. (ECF No. 11). In a supporting memorandum, Wheatstone argues that the allegations of the complaint do not satisfy the plausibility standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007), because they do not raise a right to relief above the speculative level.” (ECF No. 12 at 3, 6) (quoting Twombly, 550 U.S. at 555). Wheatstone asserts that Plaintiff's complaint describes a claim of conversion of personal property, but fails to state that Wheatstone is the party that converted the property. In Wheatstone's view, it cannot be liable for conversion if it did not take the missing equipment. (Id. at 5-6). Wheatstone denies that it provided Plaintiff's address to anyone, but contends that even if it did do so, there is no cause of action for such behavior. (Id. at 6). Wheatstone points out that Plaintiff only speculates that the men who took his property received his contact information from Wheatstone and has not provided any factual support for that core allegation; thus, Plaintiff's clear failure to provide factual support for this necessary element requires dismissal of the complaint. (Id. at 6-8). Finally, Wheatstone argues what the undersigned has already noted-Project Developments, if it were a corporation, can “appear in federal courts only through licensed counsel,” which it does not have. Fed. Trade Comm'n v. Pukke,F.4th, 2022 WL 16568278, at *9 (4th Cir. Nov. 1, 2022) (quoting Rowland, 506 U.S. at 195).

On September 19, 2022, Plaintiff submitted a response in opposition to Wheatstone's Motion to Dismiss. (ECF No. 15). Plaintiff asserts that there is a viable claim against Wheatstone because the “Kenova Police Dept., in Kenova, WV is investigating the company for Fraudulent Schemes, in which, the State of West Virginia sees this particular investigation as being a possible multitude of crimes, and if found guilty of Fraudulent Schemes, would also be guilty of Grand Larceny, and Entering Without Breaking in the State of W.V.” (ECF No. 15 at 1). Plaintiff refers to the top of the police report, (ECF No. 6), as proof of his assertion. Plaintiff also indicates that the investigation by the Kenova Police Department has uncovered where the equipment was taken, although he does not clarify the location. (Id. at 2).

In its reply memorandum, Wheatstone emphasizes that the only police report on record reflects that the men who took Plaintiff's property are unknown and that Wheatstone denied disclosing Plaintiff's address. (ECF No. 16 at 1-2). Furthermore, the police report states that the men who appeared at Plaintiff's residence told Plaintiff's mother that FedEx had mistakenly delivered the equipment to Plaintiff; accordingly, FedEx may have provided Plaintiff's address to the men who retrieved the property. Wheatstone reiterates the lack of factual allegations to support the complaint and again argues that Plaintiff has not identified any cognizable legal cause of action against Wheatstone. (Id. at 3-7). Wheatstone repeats that Plaintiff may have a claim of conversion against the individuals who took his property, but Plaintiff does not allege that Wheatstone converted the equipment. Therefore, he has failed to state a claim for which relief may be granted.

On September 28, 2022, Plaintiff submitted a surreply memorandum. (ECF No. 17). Local Rule of Civil Procedure 7.1(a)(7) requires a party to seek leave of Court before filing a surreply memorandum, and such memoranda are looked upon with disfavor. Nonetheless, the undersigned reviewed the memorandum. Plaintiff restates his claim that Wheatstone must have released his name and address, because it was the only entity, other than Plaintiff, that knew the location of the equipment. (Id. at 1-2). Furthermore, Plaintiff points out that Wheatstone provided the Kenova Police Department with information about the original purchaser without a warrant, implying that Wheatstone freely shares such information. (Id. at 2). Plaintiff contends that he has stated a viable claim and opposes dismissal of the complaint.

II. Standard of Review

A motion under Rule 12(b)(6) tests the sufficiency of the complaint. A complaint will survive a 12(b)(6) motion if it states a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570. In resolving the motion the court must assume that the facts alleged in the complaint are true and draw all reasonable inferences in favor of the nonmoving party. Burbach Broad. Co. of...