Bessinger v. Food Lion, LLC

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-1067

MAURICE BESSINGER; PIGGIE PARK ENTERPRISES,
INCORPORATED,

Plaintiffs - Appellants,

versus

FOOD LION, LLC; BOBBY DALTON,

Defendants - Appellees.

No. 04-1068

MAURICE BESSINGER; PIGGIE PARK ENTERPRISES,
INCORPORATED,

Plaintiffs - Appellants,

versus

MIKE GRAYBEAL; WINN DIXIE CHARLOTTE,
INCORPORATED,

Defendants - Appellees.

No. 04-1069

MAURICE BESSINGER; PIGGIE PARK ENTERPRISES,
INCORPORATED,

Plaintiffs - Appellants,
 versus

SAM'S CLUB, INCORPORATED,

Defendant - Appellee,

and

CHARLIE GURISCO,

Defendant.

No. 04-1070

MAURICE BESSINGER; PIGGIE PARK ENTERPRISES,
INCORPORATED,

Plaintiffs - Appellants,

versus

WAL-MART STORES, INCORPORATED,

Defendant - Appellee,

and

LARRY LOLLIS,

Defendant.

No. 04-1071

MAURICE BESSINGER; PIGGIE PARK ENTERPRISES,
INCORPORATED,

Plaintiffs - Appellants,

versus

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HARRIS TEETER, INCORPORATED; RANDY RASMUSSEN,

Defendants - Appellees.

Appeals from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (CA-03-2828-3-17; CA-03-2874-17-8; CA-03-2807-4-
17; CA-03-2810-8-17; CA-03-3153-2-17)

Argued: September 30, 2004 Decided: November 19, 2004

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Widener and Judge Luttig joined.

ARGUED: Glen Winston La Force, Sr., Hilton Head Island, South
Carolina, for Appellants. E. Raymond Moore, III, MURPHY &
GRANTLAND, P.A., Columbia, South Carolina; Cheryl Anne Falvey,
AKINS, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington, D.C., for
Appellees. ON BRIEF: George H. McMaster, TOMPKINS & MCMASTER,
Columbia, South Carolina, for Appellants. Paul D. Harrill,
Jonathan M. Milling, MCNAIR LAW FIRM, P.A., Columbia, South
Carolina, for Appellees Del Haiz, America, Inc., and Bobby Dalton;
Donald A. Cockrill, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,
Greenville, South Carolina, for Appellees Winn-Dixie Stores, Inc.,
and Mike Graybeal; Jeffrey Parker Dunlaevy, OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, P.C., Greenville, South Carolina, Jacob John
Modla, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Charlotte,
North Carolina, for Appellees Harris Teeter, Inc., and Randy
Rasmussen.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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NIEMEYER, Circuit Judge:

Maurice Bessinger and his business, Piggie Park

Enterprises, Incorporated, which operates barbecue restaurants in

South Carolina and manufactures barbecue sauce and related

products, commenced nine separate actions in South Carolina state

court against food chain retailers that had ceased purchasing and

offering for sale plaintiffs' barbecue products. In several of the

actions, plaintiffs also sued individual store managers who carried

out their stores' orders and removed plaintiffs' barbecue products

from store shelves. Each of the complaints purported to allege a

violation of the South Carolina Unfair Trade Practices Act

("SCUTPA"), S.C. Code Ann. § 39-5-10 et seq., based on the

contention that the defendants' discontinuation of carrying

plaintiffs' products was an unfair trade practice.

The plaintiffs' complaints alleged that in July 2000,

when the Confederate battle flag was lowered from the top of the

South Carolina capitol building, Bessinger began flying the

Confederate battle flag at his restaurants. Within a month, an

article appeared in The State newspaper that was extremely critical

of Bessinger for flying the flag and for distributing religious

literature at Bessinger's restaurants that the newspaper alleged to

be controversial in nature. Following The State newspaper article,

a series of news media stories appeared both in print and on radio

and television "concerning [the media's] perception of Plaintiff

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Bessinger's political and religious views with special emphasis on

the Confederate Battle Flag controversy." Following this

publicity, defendants removed plaintiffs' products from store

shelves and discontinued selling their products. As the complaints

alleged, "[t]he sole reason that Plaintiffs' products were removed

by the Defendants in this case was because of Plaintiff's

individual political and religious views as expressed by him and

publicized in the media." The plaintiffs claim that the

defendants' retaliation against plaintiffs for their exercise of

free speech was an unfair trade practice that violated SCUTPA. The

plaintiffs demanded in the aggregate $45 million in compensatory

damages, as well as treble damages, punitive damages, and attorneys

fees.

In the five actions against Food Lion, Inc., Winn-Dixie,

Inc., Sam's Club, Inc., Wal-Mart Stores, Inc., and Harris Teeter,

Inc., respectively, the defendants removed the cases to federal

court based on diversity jurisdiction conferred by 28 U.S.C. § 1332

and filed motions to dismiss the complaints under Federal Rule of

Civil Procedure 12(b)(6). In the Food Lion, Winn-Dixie, and Harris

Teeter cases, the plaintiffs in turn moved to remand the cases to

state court because the store managers, who were also named

defendants, were South Carolina citizens, thus destroying diversity

of citizenship, the essential condition for diversity jurisdiction.

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The district court denied the motions to remand and granted the

defendants' motions to dismiss under Rule 12(b)(6).

Applying the "fraudulent joinder doctrine," see Mayes v.

Rapoport, 198 F.3d 457, 461 (4th Cir. 1999); Marshall v. Manville

Sales Corp., 6 F.3d 229, 232-33 (4th Cir. 1993), the district court

disregarded the citizenship of the store managers because there was

no possibility that the plaintiffs would be able to establish that

the managers were liable under SCUTPA. The court observed that the

managers "did not commit, participate in, direct or authorize the

corporate decision to discontinue the plaintiffs' products." With

the managers' citizenship disregarded, the court concluded that it

had jurisdiction under 28 U.S.C. § 1332 and accordingly denied the

plaintiffs' motion to remand.

On the question of whether the plaintiffs' complaints

stated a claim under SCUTPA upon which relief could be granted, the

district court concluded (1) that the plaintiffs' allegations that

the defendants discontinued selling plaintiffs' products in

retaliation against plaintiffs' speech did not allege an "unfair

act," as required by SCUTPA, and (2) that the defendants' alleged

retaliation did not adversely affect members of the public, also as

required by SCUTPA. The district court reasoned that while the

plaintiffs retained the right to speak out as they had done, the

defendants retained the right to exercise their freedom not to sell

plaintiffs' products. In addition, the court concluded that the

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exercise of these rights by the respective parties did not

adversely affect the public but rather benefited it. As the court

explained,

the vendor is free to express his views; the store is
free not to do business with the vendor based on those
views; and the customer is free not to patronize the
store because it no longer sells the vendor's product.
Such free market interaction benefits rather than harms
the public interest.

Accordingly, the district court entered judgment in favor of the

defendants in each of the five actions on November 24, 2003. From

these judgments, the plaintiffs appealed.

We have carefully reviewed the record and considered the

arguments of the parties' counsel in their briefs and oral

arguments, and at bottom, we agree with the district court.

Accordingly, for the reasons given by the district court in its

opinion filed in each of the five actions, see Bessinger et al. v.

Food Lion, LLC et al., No. 03-CV-2828 (D.S.C. Nov. 20, 2003);

Bessinger et al. v. Winn Dixie, Inc. et al., No. 03-CV-2874 (D.S.C.

Nov. 20, 2003); Bessinger et al. v. Sam's Club, Inc. et al., No.

03-CV-2807 (D.S.C. Nov. 20, 2003); Bessinger et al. v. Wal-Mart

Stores, Inc. et al., No. 03-CV-2810 (D.S.C. Nov. 20, 2003); and

Bessinger et al. v. Harris Teeter, Inc. et al., No. 03-CV-3153

(D.S.C. Nov. 20, 2003), we affirm.

AFFIRMED

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