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Abdelhamid v. Altria Group

July 27, 2007

MOATAZ ABDELHAMID, PERSONAL REPRESENTATIVE OF THE ESTATE OF SHEREEN GAZAYERLI-ABDELHAMID, PLAINTIFF,
v.
ALTRIA GROUP, INC., A VIRGINIA CORPORATION, PHILIP MORRIS INTERNATIONAL, A DELAWARE CORPORATION, PHILIP MORRIS PRODUCTS S.A., A SWITZERLAND CORPORATION, AND LOUTFY MANSOUR INTERNATIONAL DISTRIBUTION COMPANY, AN ARAB REPUBLIC OF EGYPT COMPANY, JOINTLY AND SEVERALLY, DEFENDANTS.



The opinion of the court was delivered by: Shira A. Scheindlin, District Judge

OPINION AND ORDER

I. INTRODUCTION

Moataz Abdelhamid brings this diversity *fn1 action against, inter alia, Altria Group, Inc. ("Altria") and Philip Morris International *fn2 ("PMI") ("the defendants") claiming that his wife suffered grave injury as a result of their negligence and/or gross negligence. The claim arises from the electrocution and death of Abdelhamid's wife, Shereen Gazayerli-Abdelhamid, at a concert she attended in Cairo, Egypt, on August 12, 2005. Abdelhamid seeks damages for, inter alia, his wife's medical and funeral expenses, her pain and suffering, his loss of companionship and society, as well as punitive damages and all other damages recoverable under the New York Wrongful Death Act.

On January 31, 2007 Abdelhamid amended his complaint. Altria and PMI now move to dismiss the Amended Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On April 4, 2007, in a separate submission, both defendants move for Rule 11 sanctions against plaintiff based on the filing of the Amended Complaint.

After reviewing the parties' submissions, I requested additional briefing on the applicability of Egyptian law. For the reasons that follow, defendants' motions to dismiss and for sanctions are granted.

II. BACKGROUND*fn3

A. Distribution of Marlboro Cigarettes in Egypt

In 2002, Altria was the parent company and sole owner of PMI. *fn4 Both companies conducted business throughout the world. *fn5 Philip Morris Products S.A. ("PMP") was a business unit of PMI that was incorporated in Switzerland. *fn6

On or about January 1, 2002, Mansour, an Egyptian company, entered into two agreements with PMI through PMI's business unit, PMP.*fn7 The first agreement was an agreement to license, manufacture, package, promote, sell, trademark, and distribute cigarettes, including cigarettes produced under the Marlboro brand.*fn8 The second agreement was an agreement with Mansour and another company permitting Mansour to manufacture, supply, deliver and distribute cigarettes under the Marlboro brand.*fn9

B. The Diplomat Village Concert

On August 12, 2005, Shereen Gazayerli-Abdelhamid paid an admission fee and attended a party and concert on the beach at Diplomat Village in Cairo, Egypt.*fn10 Over one thousand people attended this concert and there were numerous advertising booths along the beach.*fn11 These booths displayed the names of various sponsors, and there were a number of booths that displayed the Marlboro brand name.*fn12

One of the booths that displayed the Marlboro brand name was used to market and distribute Marlboro cigarettes pursuant to Mansour's licensing and manufacturing agreements with PMI.*fn13 Power from an electrical generator illuminated the booth which was attached to a generator by an electrical cord. *fn14 During the evening of August 12th and the morning of August 13th, a number of patrons who touched the electrical cord or the Marlboro booth received an electrical shock. *fn15 These patrons notified a Marlboro employee-defined in the Amended Complaint as an agent of Altria, PMI, PMP and/or Mansour-of what happened. *fn16 The Marlboro employee did nothing to remedy the electrical hazard.*fn17

On August 13, 2005, at the conclusion of the concert, Ms. Abdelhamid stepped on the electrical cord and then touched a metal portion of the booth, resulting in her death by electrocution. *fn18

III. LEGAL STANDARD

A. Rule 12(b)(6)-Motion to Dismiss

"Federal Rule of Civil Procedure 8(a)(2) requires ... `a short and plain statement of the claim showing that the pleader is entitled to relief.' " *fn19 When deciding a defendant's motion to dismiss under Rule 12(b)(6), the court must "accept as true all of the factual allegations contained in the complaint" *fn20 and "draw all reasonable inferences in plaintiff's favor." *fn21

Nevertheless, to survive a 12(b)(6) motion to dismiss, the allegations in the complaint must meet the standard of "plausibility."*fn22 Although the complaint need not provide "detailed factual allegations," *fn23 it must "amplify a claim with some factual allegations ... to render the claim plausible." *fn24 The test is no longer whether there is "no set of facts" that plaintiff could prove "which would entitle him to relief." *fn25 Rather, the complaint must provide "the grounds upon which [the plaintiff's] claim rests through factual allegations sufficient `to raise a right to relief above the speculative level.' " *fn26

Although the court must take the plaintiff's allegations as true, "the claim may still fail as a matter of law ... if the claim is not legally feasible." *fn27 In addition, "bald ...


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