United States District Court, D. Rhode Island
AAA WHOLESALERS DISTRIBUTION, LLC, a Rhode Island limited liability company, and ARISMENDY DISLA, as an individual and President and Owner of AAA WHOLESALERS DISTRIBUTIONS, LLC., Plaintiffs,
TROPICAL CHEESE INDUSTRIES, INC., Defendant.
REPORT AND RECOMMENDATION
Patricia A. Sullivan, United States Magistrate Judge.
September 28, 2018, Plaintiffs AAA Wholesalers Distribution,
LLC (“AAA”), and Arismendy Disla, AAA's owner
and President, initiated this action against Defendant
Tropical Cheese Industries, Inc. (“Tropical”);
their verified complaint is signed by Mr. Disla. AAA and
Tropical are business rivals that intensely competed in the
sale and distribution of cheese and dairy products to grocery
markets, particularly Spanish markets and smaller specialty
markets. ECF No. 1 ¶¶ 10-13. AAA was a leading
importer/exporter of a full line of food products, at one
time the only full-line Mexican food redistributor in the
nation. Id. ¶ 11. Tropical's business is
more focused; it manufactures and sells cheese and other
dairy products. Id. ¶ 4. AAA ceased all
operations in April 2016. Id. ¶ 23. It blames
Tropical for its demise. Id. ¶¶ 23, 28.
the second case in this Court between AAA and
Tropical. In the first case, filed in September
2015, Tropical sued AAA and one of its employees (not Mr.
Disla) for breach of contract, unfair competition and
tortious interference; as to AAA; the first action was
voluntarily dismissed. Id. ¶ 14. In the present
case, AAA (and Mr. Disla, its owner/President) are suing
Tropical. They allege that Tropical's business practices
caused AAA's loss of business, leading to its April 2016
demise, and caused Disla to suffer severe emotional distress.
Their Verified Complaint advances four causes of action. In
Count I, AAA and Mr. Disla both allege Defamation/False
Light; Mr. Disla alone claims Intentional Infliction of
Emotional Distress in Count II; both assert Tortious
Intentional Interference with a Contractual Relationship in
Count III and Abuse of Process (based on the filing of
Tropical I) in Count IV.
has filed a motion to dismiss. ECF No. 11. Grounded in
Fed.R.Civ.P. 12(b)(6), and invoking Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007), Tropical's
motion challenges the sufficiency of the claims in Counts I
and II. It argues that defamation and false-light
publicity as charged in Count I rely entirely on conclusory
allegations that cannot clear the Twombly/Iqbal bar,
as well as that some, if not all, of the defamation is beyond
Rhode Island's one-year statute of limitations for words
spoken (R.I. Gen. Laws § 9-1-14(a)). Similarly, Count
II, in Tropical's view, is defective because Mr.
Disla's claim of emotional distress tracks the language
of the legal elements but lacks a single fact to render
plausible the existence of the essential element (under Rhode
Island law) of a physical manifestation of symptoms.
response, Plaintiffs contend that many of the utterances in
Count I occurred within one year prior to the Verified
Complaint and that those that did not are saved by the
continuing tort doctrine; they also contend that some of the
actionable utterances amount to non-verbal defamation, which
they contend is covered by the default (three-year) statute
of limitations in R.I. Gen. Laws § 9-1-14(b). As to
Count I's factual sufficiency, Plaintiffs brush aside
Twombly/Iqbal, arguing that they need not be as
specific as Tropical wants. Mr. Disla defends Count II with
the argument that he has put in enough regarding his physical
symptoms. Plaintiffs alternatively request leave to amend the
Fed.R.Civ.P. 12(b)(6) motion has been referred to me for
report and recommendation. 28 U.S.C. § 636(b)(1)(B). For
the reasons that follow, I recommend that the motion be
2005, Mr. Disla established AAA, a business that sold and
distributed a full line of food products, including cheese
and dairy, to Spanish groceries in the United States. ECF No.
1 ¶¶ 3, 7, 10, 11. At one time, AAA was the
nation's only full-line Mexican food distributor; its
gross revenue exceeded $2 million between the
“approximate years 2015 and 2017.” Id.
¶¶ 8, II. Tropical is AAA's direct competitor
in serving the needs of Spanish grocery stores for cheese and
dairy products. Id. ¶¶ 12-13. AAA ceased
operations in April 2016 because of Tropical's unfair
practices. Id. ¶ 23.
September 29, 2015, while AAA was still operating, Tropical
filed a lawsuit against AAA and Alejandro Castillo, a AAA
employee who formerly worked for Tropical. Id.
¶ 14; see Tropical I, ECF No. 1. Tropical's
lawsuit claimed Mr. Castillo violated a non-compete agreement
he had signed with Tropical, and that he was sharing
Tropical's trade secrets with his new employer, AAA.
Tropical I, ECF No. 1. In its complaint, Tropical
alleged breach of contract against Mr. Castillo, as well as
unfair competition and tortious interference with contractual
relationships as to Mr. Castillo and AAA. Id.
Because Mr. Castillo failed to appear, the Court entered
default judgment against him on June 21, 2016. Tropical
I, ECF No. 19. On February 1, 2017, the Court dismissed
all claims against AAA based on Tropical's December 30,
2016, unobjected-to filing of a motion for voluntary
dismissal. ECF No. 53. Mr. Disla was not named as a party in
Tropical I, nor does his name appear in the
Tropical I complaint. Tropical I, ECF No.
instant case, Plaintiffs' allegations against Tropical
focus on the approximate time period of 2015 to 2017.
See Compl. ¶ 16. To the extent that the
Verified Complaint alleges facts involving AAA, it claims
that Tropical's representatives “interacted”
with “established and potential customers of the
Plaintiffs” for the purpose of luring business away
from AAA. Id. These interactions included
Tropical's representatives “citing the fact that
[AAA] was being sued [in Tropical I] as a reason not
to purchase products from AAA.” Id. Plaintiffs
further allege that Tropical's representatives engaged in
competitive dirty tricks, including “inducing
[AAA's] customers to allow Defendant to scrutinize
invoices, and reveal other propriety information, in an
effort to undercut the Plaintiffs' prices and
service/sales methods”; physically manipulating the
presentation of Plaintiffs' products in grocery locations
so potential customers could not find AAA's items; and
moving AAA's sales material and other signage, replacing
them with Tropical's. Id. ¶¶ 17, 19,
20. Plaintiffs claim (on information and belief) that
Tropical's representatives offered cash incentives and
free products to Plaintiffs' customers in exchange for
testimony against AAA in Tropical I. Id.
¶ 21. Due to Tropical's “unfair practices,
” “Plaintiffs lost business relationships with
clients, customers, investors, banking relations and like
contacts, many of which were built over a decade.”
Id. ¶ 22. Tropical's practices forced AAA
to cease its operations in April 2016; prior to that time,
AAA's business extended throughout the United States and
to approximately thirty other countries. Id.
¶¶ 9, 23, 28.
claims, Mr. Disla alleges that Tropical's
“statements” were made intentionally to demean
and falsely reflect on him, his professional acumen and
reputation, giving the public a misleading impression of him
as unreliable and untrustworthy. ECF No. 1 ¶¶
26-29. He claims that the defamation and false light
publicity caused him to be shocked, humiliated, and to endure
pain and suffering and emotional distress, “with
resulting physical and emotional manifestations.”
Id. ¶ 32. He also alleges that this
“extreme and outrageous conduct” was intentional
for the purpose of inflicting severe emotional distress.
Id. ¶¶ 35-36. To support his claim for
infliction of emotional distress, Mr. Disla further describes
this “conduct” as “outrageous, ”
“atrocious and egregious, ” “beyond all
possible bounds of decency and . . . utterly intolerable in a
civilized community.” Id. ¶ 37. He claims
he has “suffered severe emotional distress.
Id. ¶ 39.
STANDARD OF REVIEW
avoid foundering in the face of a motion to dismiss under
Fed.R.Civ.P. 12(b)(6), a complaint must allege a plausible
entitlement to relief that gives the defendant fair notice of
the claim and the grounds on which it rests. Iqbal,
556 U.S. at 678; Twombly, 550 U.S. at 555, 559. The
plausibility inquiry requires the court to distinguish
“the complaint's factual allegations (which must be
accepted as true) from its conclusory legal allegations
(which need not be credited).” Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012).
two-pronged approach begins by identifying and disregarding
statements in the complaint that merely offer
“‘legal conclusion[s] couched as . . . fact[
]'” or “[t]hreadbare recitals of the elements
of a cause of action.” Iqbal, 556 U.S. at
1949-50 (quoting Twombly, 550 U.S. at 555). “A
plaintiff is not entitled to ‘proceed perforce' by
virtue of allegations that merely parrot the elements of the
cause of action.” Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The
Court must determine whether the well-pled facts, taken as
true, are sufficient to support “the reasonable
inference that the defendant is liable for the misconduct
alleged.” Haley v. City of Boston, 657 F.3d
39, 46 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at
678). In doing so, the complaint should be read holistically
with a heavy dose of common sense. Rodr ...