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EHRICH v. B.A.T. INDUS. P.L.C.

May 27, 1997

Shirley EHRICH; Florence Kessel, as executrix and administrator for the estate of Jerold Kessel; Shiela Lederman; and Gerald T. Lederman, Plaintiffs,
v.
B.A.T. INDUSTRIES P.L.C.; Brown & Williamson Tobacco Corporation; American Tobacco Co., Inc.; BATUS Inc.; BATUS Holdings, Inc.; Council For Tobacco Research-USA, Inc, as successor to Tobacco Industry Research Committee; Tobacco Institute, Inc.; R.J. Reynolds Tobacco Co.; RJR Nabisco, Inc.; Shook & Hardy, P.A.; American Brands, Inc.; Philip Morris Companies, Inc.; Philip Morris, Inc., Lorillard Corp.; and Jacob, Medinger, Finnegan and Hart, Defendants.



The opinion of the court was delivered by: GREENAWAY

 GREENAWAY, JR., District Judge

 This matter comes before the Court on the joint motion for dismissal of defendants Brown & Williamson Tobacco Corporation (individually and as successor by merger to the American Tobacco Company), Council for Tobacco Research-USA, Inc. (successor to Tobacco Industry Research Committee), Tobacco Institute, Inc., R.J. Reynolds Tobacco Company, Philip Morris Incorporated, Lorillard Tobacco Company, and the law firm of Jacob, Medinger & Finnegan *fn1" , pursuant to Fed. R. Civ. P. 12(b)(6) *fn2" and 9(b) *fn3" The Court did not hear oral argument. Fed. R. Civ. P. 78. This court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 (1993). *fn4"

 INTRODUCTION

 Plaintiffs, Shirley Ehrich, Florence Kessel *fn5" , Shiela Lederman and Gerald Lederman, filed the complaint in this action in United States District Court, District of New Jersey, on September 16, 1996.

 Plaintiffs claim that they are addicted to nicotine, that as a result of their addiction to nicotine they continue to smoke cigarettes, and that as a result of their smoking cigarettes they have contracted various diseases. For example, Ms. Ehrich now suffers from "non-small cell adeno carcinoma and multiple tumors on both lungs"; the late Mr. Kessel suffered from lung cancer; Ms. Lederman continues to suffer from lung cancer; and Mr. Lederman claims loss of consortium. Plaintiffs characterize their claims as damages to property including wages, medical expenses, cost of tobacco, costs incurred in attempting to quit smoking, and other expenses, caused by "defendant's scheme to addict."

 Count One of plaintiffs' complaint alleges that defendants violated 18 U.S.C. §§ 1961-68 (1984 & Supp. 1997), the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Plaintiffs also allege the following common law claims: fraud (Count Two); civil conspiracy (Count Three); negligence (Count Four); violation of the New Jersey Consumer Protection Act (Count Five); negligent misrepresentation (Count Six); strict liability (Count Seven).

 Defendants now move to dismiss the federal RICO claim as well as plaintiffs' common law and statutory claims.

 DISCUSSION

 A. Standard For Dismissal

 Upon a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the factual allegations of the complaint are presumed to be true and all inferences must be drawn in the plaintiffs' favor and against the defendants. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). A motion under Rule 12(b)(6) should be granted where it appears beyond any doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-250, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989).

 B. The Federal RICO Claim

 Section 1964(c) of RICO provides for civil ...


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