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Ketchmark v. Brown-Williamson Tobacco Corp.

United States District Court, D. Hawaii

July 17, 2018

TRUMAN LEE KETCHMARK, Plaintiff,
v.
BROWN-WILLIAMSON TOBACCO CORPORATION Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS TRUMAN LEE KETCHMARK'S COMPLAINT FILED ON MARCH 1, 2018, OR, ALTERNATIVELY, FOR A MORE DEFINITE STATEMENT

          Alan C. Kay, Sr., United States District Judge

         For the reasons discussed below, the Court GRANTS Defendant Brown-Williamson Tobacco Corporation's Motion to Dismiss Truman Lee Ketchmark's Complaint Filed on March 1, 2018, ECF No. 5, and dismisses Plaintiff's complaint WITHOUT PREJUDICE.

         Any amended complaint Plaintiff files pro se in this Court is subject to the Pre-Filing Review Order, ECF No. 14, entered in Ketchmark v. Obama, Civ. No. 10-00725 DAE-LEK (D. Haw. Feb. 24, 2011).

         BACKGROUND

         Plaintiff Truman Lee Ketchmark (“Ketchmark”) filed a complaint in state court, which Defendant Brown-Williamson Tobacco Corporation (“Defendant” or “BWTC”)[1] removed on March 1, 2018. Notice of Removal, ECF No. 1. In his complaint, Ketchmark attempts to bring claims on behalf of himself and his “heirs and assigns” against BWTC “and all other tobacco companies responsible et al. and et cetra.” Compl., ECF No. 1-2 at p. 1.

         Ketchmark seems to allege that he or his family members were injured at various times throughout his life, and that BWTC caused some or all of those injuries.[2] Id. at pp. 1-2. Ketchmark's allegations include that:

• He was conceived in 1943 and born in 1944-during “stressful times”-and both of his parents smoked tobacco cigarettes;
• He had abdominal surgery at age three, which left him with a seven-inch scar;
• He was diagnosed with mental illness at age twenty-seven;
• His younger brother was born in 1954, had surgery for double hernias at age one, and died in 2007;
• His mother, who “died with a cigarette in one hand and an oxygen contraption in the other, ” suffered from throat cancer and “starved to death” in 2001; and
• His father died “when a doctor gave him predestione, ”[3]

Id. Based on these allegations, Ketchmark requests “$1, 000.00 per month for compensation or $12, 000.00 per year until my King Jesus returns. (His Second Coming) to straighten things out.”[4] Id. Ketchmark further requests “foundation funds to help people damaged by tobacco, asbestos, and lead in the air and water.” Id. In addition, the complaint cites various portions of the Bible, id., and attaches copied pages from several seemingly unrelated sources, ECF No. 1-5.

         On March 8, 2018, BWTC filed a Motion to Dismiss Truman Lee Ketchmark's Complaint Filed on March 1, 2018 or, Alternatively, for a More Definite Statement (the “MTD”). ECF. No. 5. Along with its Motion, BWTC filed a memorandum (“Def.'s Mem.”), ECF No. 5-1, one affidavit with a supporting exhibit, ECF Nos. 5-2, 5-3, and one declaration of counsel with supporting exhibits, ECF Nos. 5-4, 5-5, 5-6, 5-7. . The MTD argues that the complaint should be dismissed for three reasons. First, BWTC asserts that Ketchmark failed to properly serve his summons on it. MTD at p. 2. Second, BWTC contends that the summons Ketchmark did attempt to serve is deficient. Id. Finally, BWTC argues that the complaint fails to state a claim upon which relief can be granted. Id. In the alternative, BWTC moves for an order requiring Ketchmark to file a more definite statement. Id.

         On June 27, 2018, Ketchmark filed an opposition to the MTD (“Opp.”), ECF No. 15, to which BWTC filed a reply on July 3, 2018, ECF No. 17. The Court held a hearing on the MTD on July 17, 2018.

         STANDARD

         I. Rules 12(b)(4) and 12(b)(5)

         Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) authorize dismissal based on insufficient process and insufficient service of process, respectively. In assessing the sufficiency of process and service of process, courts may weigh the evidence and resolve disputed issues of fact in accordance with Rule 12(d). 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (Civ.3d ed.) (“Any factual question raised by the affidavits or other evidence presented on a Rule 12(b)(4) or a Rule 12(b)(5) motion should be determined by the district court in accordance with Rule 12(d).”). If a court finds process or service of process ...


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