## Facts

- Curtis Kirksey was a long-time smoker of cigarettes manufactured by R.J. Reynolds Tobacco Company and Lorillard Tobacco Company, Inc.
- The estate alleged defendants falsely advertised that their cigarettes were not addictive and added addicting agents without disclosing addictiveness or the additives.
- The estate alleged that, absent defendants’ conduct and omissions, Kirksey would have smoked less, lived longer, and his death from lung cancer would not have been accelerated.
- The suit sought damages for wrongful death and emotional distress under Illinois law in federal court based on diversity jurisdiction.
- Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing the allegations did not state a tort under Illinois law and/or were preempted by federal cigarette labeling and advertising regulation.
- Plaintiff declined to characterize the claims as products liability or false advertising and argued she need not identify a specific legal basis at the pleading stage.

## Issues

1. Whether a plaintiff who pleads factual allegations of wrongdoing but refuses to identify any cognizable legal theory can survive a Rule 12(b)(6) motion.
2. Whether, after a defendant raises legal objections (including preemption), a plaintiff must articulate a recognized cause of action under applicable state law rather than rely on an undefined “intentional tort” category.
3. Whether failure to present a concrete legal theory and supporting argument in response to a motion to dismiss may be treated as waiver warranting dismissal.

## Decision

- The Seventh Circuit affirmed the district court’s Rule 12(b)(6) dismissal.
- The court held that Rule 8 permits minimal pleading as to form, but does not guarantee substantive legal sufficiency.
- When confronted with a motion to dismiss, a plaintiff must identify at least one legally cognizable theory under the governing substantive law that fits the alleged facts.
- The court agreed that plaintiff’s refusal to advance any legal theory or legal argument supported dismissal, treated as waiver by non-argument.
- The court noted that claims potentially barred by federal preemption cannot be revived by relabeling them under new terminology.

## Legal Principles

- Rule 8(a)(2) requires a short and plain statement of the claim, but a complaint must still state a claim that is legally cognizable under applicable substantive law.
- In response to a Rule 12(b)(6) motion raising doctrinal objections, a plaintiff must articulate at least one viable cause of action and provide legal argument showing how the alleged facts satisfy its elements.
- Courts are not required to construct legal theories for a plaintiff who declines to identify any, and failure to argue a legal basis may be treated as waiver.
- Where federal regulation preempts certain state-law theories, a plaintiff cannot avoid preemption by recharacterizing the same theory under different labels.

## Conclusion

The court affirmed dismissal because, although the complaint alleged misconduct relating to cigarette addictiveness, the plaintiff refused to identify any recognized Illinois tort theory or respond to defendants’ legal objections, leaving the court no obligation to supply a cause of action or rescue potentially preempted claims through recharacterization.


Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039 (7th Cir. 1999)