Silva v. R.J. Reynolds Tobacco Co.

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MERLE SILVA, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, A NORTH CAROLINA FOR-PROFIT CORPORATION; Defendant.

Civ. No. 24-00087 LEK-RT

United States District Court, D. Hawaii

March 11, 2024

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS FOR REMAND AND SANCTIONS

Leslie E. Kobayashi United States District Judge

On February 23, 2024, Plaintiffs Marvin Manious and Valerie Manious (“the Maniouses”) and Plaintiff Merle Silva (“Silva”) filed motions seeking remand of their respective cases and awards of removal-related attorney's fees and costs. [Manious v. R.J. Reynolds Tobacco Co., CV 24-00086 LEK-RT (“Manious”), Plaintiffs' Emergency Motion to Remand and Supporting Memorandum of Law and Motion for Sanctions, filed 2/23/24 (dkt. no. 34) (“Manious Motion”); Silva v. R.J Reynolds Tobacco Co., CV 24-00087 LEK-RT (“Silva”), Plaintiff's Emergency Motion to Remand and Supporting Memorandum of Law and Motion for Sanctions, filed 2/23/24 (dkt. no. 37) (“Silva Motion”).] Defendant R.J Reynolds Tobacco Company (“R.J. Reynolds”) filed its memoranda in opposition on February 28, 2024. [Manious, dkt. no. 40 (“Manious Opp.”)); Silva, dkt. no. 43 (“Silva Opp.”).]

The Maniouses and Silva filed their respective replies on March 1, 2024. [Manious, dkt. no. 41; Silva, dkt. no. 41.]

These matters came on for hearing on March 5, 2024. The Manious Motion and the Silva Motion (collectively “the Motions”) are hereby granted in part and denied in part for the reasons set forth below. The Motions are granted insofar as Manious and Silva are remanded to the state court, and the Motions are denied as to Plaintiffs' respective requests for removal-related attorney's fees and costs.

BACKGROUND

The Maniouses filed their Complaint on March 15, 2022 in the State of Hawai'i Circuit Court of the Third Circuit, Kona Division (“state court”). See Manious Notice of Removal, filed 2/22/24 (dkt. no. 1), Exh. A (Complaint) (“Manious Complaint”). The defendants named in the Manious Complaint were -cigarette manufacturers R.J. Reynolds as the successor to

Lorillard Tobacco Company, American Tobacco Company, and Brown & Williamson Tobacco Corporation; Philip Morris USA, Inc. (“Phillip Morris”); and Liggett Group LLC, formally known as Liggett Group, Inc., Brooke Group Ltd., Inc., and Liggett & Meyers Tobacco Company (“Liggett” and collectively “Manufacturer Defendants”); [id. at ¶¶ 8-12;]

-entities that provided legal services to the Manufacturer

Defendants and whose services allegedly supported the Manufacturer Defendants' distribution and sale of cigarettes in Hawai'i: Shook, Hardy & Bacon L.L.P. (“Shook”); Covington & Burling L.L.P. (“Covington”); Womble Bond Dickinson L.L.P. (“Womble”); Greenspoon Marder L.L.P. (“Greenspoon” and collectively “Law Firm Defendants”); [id. at pg. 2 & ¶¶ 13-16, 71;] and

-entities that sold cigarettes to Marvin Manious in Hawai'i:

Foodland Super Market, Limited, doing business as Foodland, Sack ‘N Save Foods, and Gas N Go (“Foodland”); J. Hara Store, Inc. Limited (“J. Hara”); and Walmart Inc., doing business as Walmart (“Walmart” and collectively “Retail Defendants”), [id. at pg. 2 & ¶¶ 17-19].

The Manious Complaint alleges Marvin Manious began smoking cigarettes in approximately 1978, when he was a teenager, and he smoked Kool brand cigarettes from 1978 to 2015. He was diagnosed with laryngeal cancer on September 18, 2020. The Manious Complaint alleges smoking Kool brand cigarettes caused Marvin Manious's cancer. In deciding to begin and to continue smoking, Marvin Manious allegedly relied on representations and warranties that he was exposed to in advertising and marketing by the Manufacturer Defendants. He purchased the cigarettes that he smoked from the Retail Defendants. [Id. at ¶¶ 3-7.]

The Manious Complaint alleges the following claims: a strict products liability claim against R.J. Reynolds (“Count I”); a negligence claim against R.J. Reynolds (“Count II”); a fraud claim against R.J. Reynolds (“Count III”); two conspiracy claims against the Manufacturer Defendants (“Count IV” and “Count VII”); two conspiracy claims against the Law Firm Defendants (“Count V” and “Count VIII”); a fraudulent misrepresentation claim against R.J. Reynolds (“Count VI”); a strict liability claim against the Retail Defendants (“Count IX”); a breach of implied warranty claim against the Manufacturer Defendants (“Count X”); and a loss of consortium claim against all defendants (“Count XI”). [Id. at pgs. 56-90.]

Silva filed her Complaint on September 7, 2022 in the state court. [Silva, Notice of Removal, filed 2/22/24 (dkt. no. 1), Exh. A (Complaint) (“Silva Complaint”).] The Manufacturer Defendants, Shook, Covington, Womble, and Foodland are also named as defendants in the Silva Complaint. See id. at ¶¶ 8-16. J. Hara and Walmart are not named in Silva, but another retailer is - Par Pacific Holdings, Inc., doing business as Hele, 76, and Nomnom (“Par Pacific”). See id. at pg. 2 & ¶ 17. The core allegations of the Silva Complaint are similar to those in the Manious Complaint. See id. at ¶¶ 3-7. The claims in the Silva Complaint are the same as those in the Manious Complaint, except that Silva does not assert a loss of consortium claim. See id. at pgs. 56-90.

In May 2022, each of the Law Firm Defendants filed a motion to dismiss the Manious Complaint. See Manious, Notice of Removal, Exh. D-2 at state court dkt. no. 51 (dkt. no. 3 at PageID.2281-348) (Greenspoon's motion to dismiss, filed 5/9/22);^[1]id. at state court dkt. no. 53 (dkt. no. 3 at PageID.2351-83) (Covington's motion to dismiss, filed 5/9/22); id. at state court dkt. no. 63 (dkt. no. 3 at PageID.2424-50) (Shook's motion to dismiss, filed 5/11/22); id. at state court dkt. no. 64 (dkt. no. 3 at PageID.2453-619) (Womble's motion to dismiss, filed 5/12/22).

On September 16, 2022, the state court granted Greenspoon's motion and dismissed the Maniouses' claims against Greenspoon without prejudice. See Manious, Notice of Removal, Exh. D-6 at state court dkt. no. 303 (dkt. no. 7 at PageID.9066-70) (Order Granting Without Prejudice Defendant Greenspoon Marder LLP's Motion to Dismiss for Lack of Personal Jurisdiction, Filed on May 9, 2022 [Dkt. 51]). On October 19, 2022, the state court issued written orders denying Shook's, Womble's, and Covington's respective motions to dismiss. [Id. at state court dkt. no. 352 (dkt. no. 7 at PageID.9337-41) (order denying Shook's motion); id. at state court dkt. no. 354 (dkt. no. 7 at PageID.9344-48) (order denying Womble's motion); id. at state court dkt. no. 356 (dkt. no. 7 at PageID.9351-55) (order denying Covington's motion).]

On November 15 and 16, 2022, Covington, Shook, and Womble each filed a motion seeking leave to file an interlocutory appeal. See Manious, Notice of Removal, Exh. D-6 at state court dkt. no. 393 (dkt. no. 7 at PageID.10736-51) (Covington's motion); id. at state court dkt. no. 395 (dkt. no. 7 at PageID.10754-90) (Shook's motion); id. at state court dkt. no. 397 (dkt. no. 7 at PageID.10793-926) (Womble's motion). The state court denied the motions during a February 6, 2023 hearing. See Manious, Notice of Removal, Exh. B (state court docket) at dkt. no. 514 (minutes). Also around that time, the state court consolidated Manious and Silva for discovery and trial. See Manious, Notice of Removal, Exh. C-2 (dkt. no. 1-6 at PageID.1099-1103) (Order Granting Plaintiffs' Motion to Consolidate for Discovery & Trial [Dkt. 389], filed in the state court on 2/7/23).^[2]

While the interlocutory appeal motions were pending, the Maniouses' claims against Greenspoon were dismissed. See id., Exh. C-5 (dkt. no. 1-6 at PageID.1117-21) (Stipulation for Partial Dismissal with Prejudice of All Claims Against Defendant Greenspoon Marder LLP and Order, filed in the state court on 11/14/22).

Approximately a week after the interlocutory appeal motions were denied, Womble, Shook, and Covington filed a petition for a writ of prohibition with the Hawai'i Supreme Court to prevent the state court from exercising personal jurisdiction over them, and the supreme court ultimately granted the writ. See Womble Bond Dickinson (US) LLP v. Kim, 153 Hawai'i 307, 537 P.3d 1154 (2023). On November 2, 2023, the state court entered orders dismissing Womble, Shook, and Covington with prejudice in the consolidated cases, pursuant to the Hawai'i Supreme Court's opinion. See Manious, Notice of Removal, Exh. D-8 at state court dkt. no. 663 (dkt. no. 9 at PageID.13808-10) (Womble dismissal order); id. at state court dkt. no. 665 (dkt. no. 9 at PageID.13813-15) (Shook dismissal order); id. at state court dkt. no. 667 (dkt. no. 9 at PageID.13818-20) (Covington dismissal order).

Trial in the consolidated cases was scheduled for February 27, 2024. See Manious, Notice of Removal, Exh. D-8 (dkt. no. 9) at PageID.14886 (page 3 of Third Supplemental Order Setting Trial Date, Pretrial Deadlines, Hearing(s), and Further Procedures, filed 12/5/23 (dkt. no. 776)).

Shortly before trial, the Maniouses' claims and Silva's claims against Liggett and Philip Morris were dismissed with prejudice. See id., Exh. C-3 (dkt. no. 1-6 at PageID.1104-10) (state court dkt. no. 1654 (Stipulation for Partial Dismissal with Prejudice as to All Claims Against Defendant Liggett Group LLC and Order, filed 2/21/24)); id., Exh. C-4 (dkt. no. 1-6 at PageID.1111-16) (state court dkt. no. 1703 (Stipulation for Partial Dismissal with Prejudice as to All Claims Against Defendant Philip Morris USA Inc. and Order, filed 2/22/24)). In addition, the Maniouses' claims and Silva's claims against the Retail Defendants were dismissed with prejudice. See id., Exh. C-10 (dkt. no. 1-6 at PageID.1178-82) (state court dkt. no. 1648 (Stipulation and Order for Partial Dismissal with Prejudice of All Claims...