Thomas-Goguette et al v. T-Mobile USA, Inc. et al

MOTION to Dismiss Complaint, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.December 27, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KATHLEEN T. GOGUETTE, et al. : Plaintiffs, : vs. : Case No. 1:16-cv-04495-TWT WIRELESS VISION SOUTH, LLC : Judge T. Thrash, Jr. et al. : Defendants. : DEFENDANT, WIRELESS VISION SOUTH LLC’S, MOTION TO DISMISS PLAINTIFF’S COMPLAINT, AND, ALTERNATIVELY, FOR MORE DEFEINITE STATEMENT Now comes Defendant, Wireless Vision South, LLC, by and through counsel, and hereby requests that Plaintiffs’ Complaint herein be dismissed, pursuant to Fed. R. Civ. P. 12, for failure to state a claim upon which relief can be granted, or, alternatively, that Plaintiffs be ordered to provide a more definite statement of claims, on the grounds set forth in the incorporated Memorandum Of Law In Support. As detailed below, (a) Plaintiffs’ negligence claims are barred under the applicable statute of limitations, and (b) there is no federal privacy law stated in the Complaint and upon which Plaintiffs’ could state a claim; hence, the Complaint as to Wireless Vision South, LLC should be dismissed. Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 1 of 19 2 MEMORANDUM OF LAW IN SUPPORT: I. PRELIMINARY MATTERS: (A). STATEMENT OF CASE AND RELEVANT FACTS: On or about December 6, 2016, Plaintiffs filed their Complaint against T- Mobile USA, Inc. and Wireless Vision South, LLC. A Summons and Complaint were served upon a statutory agent for Wireless Vision South, LLC on or about December 7, 2016. In Paragraph 3 of the Complaint, Plaintiffs allege that Defendant, Wireless Vision South, LLC, owns or operates a cell phone company in the State of Georgia. In fact, Wireless Vision South, LLC, only leases retail space. In Paragraph 4 of the Complaint, Plaintiffs allege that on or about October 15, 2014, they started cell phone service with Defendants using number 404-513- 0332. Of course, Wireless Vision South, LLC is not itself in the cell phone business, so the allegation is false. But, assuming for purposes of this Motion that Plaintiffs’ factual allegations were true, Plaintiffs Complaint does not state a claim against Wireless Vision South, LLC. In Paragraphs 5-10, Plaintiffs allege that someone other than them, specifically, Keith Bradford, also had access to their telephone conversations on Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 2 of 19 3 number 404-513-0332 and that this was reported to Defendants but they did nothing about it. In Paragraph 11, Plaintiffs allege that Defendants had a legal duty to protect their privacy, but Plaintiffs do not state the legal source of the duty. In Paragraph 12-13, Plaintiffs allege that Defendants were negligent in not informing them that Keith Bradford had the same telephone number as them. In Paragraph 14 and 16, Plaintiffs allege Defendants were negligent for failing to have a “policy, procedure or system of investigating, reporting, and warning of the negligently [sic] action of Defendants’ employees . . . .” This is simply another expression of Plaintiffs negligence claim. In Paragraph 15, Plaintiffs allege that the Defendants engaged in negligent misrepresentation of records privacy under the Federal Privacy Act of 1974. In Paragraph 17, Plaintiffs allege that Defendants are liable for negligence and violation of unspecified Federal Privacy Laws. Paragraphs 18-19 request tort type compensatory damages and punitive damages. (B). LAW RELATING TO MOTIONS TO DISMISS: A court will grant a Rule 12(b)(6) motion to dismiss if the complaint "fail[s] to state a claim upon which relief can be granted." Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 3 of 19 4 Rule 8 of the Federal Rules of Civil Procedure, a pleading states a claim when it contains, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed R. Civ. P. 8(a)(2). To determine whether a complaint fails to state a claim, the Court must apply the standard announced by the Supreme Court in Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), described as follows: [T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 4 of 19 5 Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (alterations, citations, and internal quotation marks omitted). A "document filed pro se is 'to be liberally construed,' . . . , and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' " Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2000) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)); see also Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000) (discussing that pro se filings are entitled to liberal construction); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). However, even applying the more liberal standard to be used with respect to a pro se complaint, the Plaintiffs’ Complaint herein fails to state claims upon which relief can be granted against Wireless Vision South, LLC. "Although the Court must afford a pro se litigant wide leeway in pleadings, a pro se litigant is nonetheless required to satisfy necessary burdens in that he is 'not relieved of his obligation to allege sufficient facts to support a cognizable legal claim,' and 'to survive a motion to dismiss, a Plaintiff must do more than merely label his claims.'" Mills v. Verizon, unreported, Case No. 8:08-cv-00434-T-17TBM, 2008 U.S. Dist. LEXIS 80811, 2008 WL 4365922, at *2 (M.D. Fla., Sept. 23, 2008) (internal citation and quotations omitted). "Dismissal is, therefore, permitted 'when Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 5 of 19 6 on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.'" Id. II. PLAINTIFFS’ CLAIMS FAIL AS A MATTER OF LAW: (A). PLAINTIFFS’ NEGLIGENCE CLAIMS AGAINST WIRELESS VISION SOUTH, LLC FAIL AS A MATTER OF LAW: (1). JURISDICTIONAL ISSUES: Presumably, Plaintiffs have invoked the jurisdiction of this Court under the diversity of citizenship provisions of 28 U.S.C. § 1332 since at Paragraphs 1-3 of the Complaint the Plaintiffs have pled the citizenship of the parties. There are tough questions whether the jurisdictional amount has been met. Of course, in cases based on diversity jurisdiction, courts apply the substantive law of the state in which the court sits, including that state's choice of law rules. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 58 S. Ct. 817 (1938); Spurlin v. Merchants Ins. Co., 57 F.3d 9, 10 (1st Cir. 1995); Camacho v. Nationwide Mut. Ins. Co., unreported, Case No. 1:11-CV-03111-AT, 2016 U.S. Dist. LEXIS 70317 at *39 (N.D. Ga., May 25, 2016). Therefore, the laws of Georgia apply with respect to Plaintiffs’ allegations of negligence. Although, perhaps Plaintiffs have invoked the jurisdiction of this Court under 28 U.S.C. § 1331 with respect to their alleged claim under the Privacy Act of 1974, their other claims would be subject to supplemental jurisdiction under 28 Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 6 of 19 7 U.S.C. § 1337. If so, the laws of Georgia still apply to Plaintiffs’ allegations of negligence. (2). PLAINTIFFS HAVE NO LEGALLY COGNIZABLE NEGLIGENCE CLAIM AGAINST WIRELESS VISION SOUTH, LLC: Taking Plaintiffs’ Complaint as true, Paragraph 4 of the Complaint states that Plaintiffs’ cell phone service started on October 15, 2014. Plaintiffs’ negligence claims against Wireless Vision South are set forth in Paragraphs 12, 13, 14, 15 and 16 which may be summarized as asserting negligence based upon the allegation that Plaintiffs’ telephone number was also accessible to someone else, Blake Bradford. The statute of limitations for negligence claims under Georgia law is set forth by Georgia Code 9-3-33 which states: Except as otherwise provided in this article, actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues. [emphasis added] OCGA § 9-3-33. A cause of action in negligence accrues and the statute of limitation begins to run when there is a negligent act coupled with a proximately resulting injury. U- Haul Co. of W. Ga. v. Abreu & Robeson, Inc., 247 Ga. 565, 277 S.E.2d 497 (Ga. Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 7 of 19 8 Sup. Crt. 1981), citing, Wellston v. Hodges & Co., 114 Ga. App. 424, 151 SE2d 481 (1966) (holding that in a suit by the owners of a building, the legal injury resulting from negligent design occurred at the time of the construction, since the building itself was damaged at that time). A two year statute of limitations also applies under Georgia law to invasion of privacy claims, assuming arguendo that Plaintiffs were trying to make such a claim. See, Valencia v. Universal City Studios LLC, unreported, Case No. 1:14-CV-00528-RWS, 2014 U.S. Dist. LEXIS 174644 (N.D. Ga. Dec. 18, 2014), citing, Hudson v. Montcalm Pub. Corp., 190 Ga. App. 629, 379 S.E.2d 572 (1989). In the instant case, according to the Complaint, the cause of action accrued on or about October 15, 2014. Further, the Complaint at Paragraph 18 alleges only intangible personal injuries. Obviously, the problem with cell phone service, if there really were one, was immediately apparent, and the damage, if any, was immediate. Yet, Plaintiffs did not file their Complaint until December 6, 2016 which is well-over the two-year limitation for filing such actions. Therefore, based upon their own pleading, Plaintiffs’ are not entitled to relief for negligence or invasion of privacy, even if their allegations were true. Further, at Paragraph 15 of the Complaint, Plaintiffs allege that their negligence claim is based upon the federal Privacy Act of 1974, but, as set forth Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 8 of 19 9 hereinbelow, the Privacy Act of 1974 could not apply to this situation because it relates only to federal governmental agencies. “Whether a duty exists upon which liability can be based is a question of law.” (citation and punctuation omitted.) Barnes v. St. Stephen's Missionary Baptist Church, 260 Ga. App. 765, 767 (1) (580 SE2d 587) (2003). Plaintiffs have not and could not in good faith allege that Defendant, Wireless Vision South, LLC, is a governmental agency of any type. Since the statute cited does not apply, no negligence claim could be based upon it. In McLain v. Mariner Health Care, 279 Ga. App. 410, 631 SE2d 435 (2006) (considering negligence per se claim based on violation of Medicare and Medicaid regulations), the court said: Generally, a plaintiff may assert a claim of negligence per se arising from violations of federal or state statutes as long as (1) that plaintiff falls within the class of persons the statute was intended to protect; (2) the harm complained of was the same harm the statute was intended to guard against; and (3) the violation of the statute proximately caused the plaintiff's injury. The violation of a regulation, no less than that of a statute, can likewise establish that a defendant breached a duty owed to a plaintiff as a matter of law. Id. at 411. See also, Tanner v. Rebel Aviation, 146 Ga. App. 110, 113 (1) (245 SE2d 463) (1978) (considering whether Federal Aviation Administration regulations were passed for appellant's benefit). Clearly, the Plaintiffs do not fall within the class of persons the statute was intended to protect and the harm, if any, Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 9 of 19 10 was not the same harm the federal Privacy Act of 1974 was intended to guard against. In addition, a common law negligence claim may not be raised to vindicate a statutory right that did not exist at common law. See, Gregory v. Select Portfolio Servicing, unreported, Case No. 2:15-cv-00781-JHE, 2016 U.S. Dist. LEXIS 117596 (N.D. Ala., Aug. 31, 2016) (discussing whether state negligence claim could be based upon the Fair Debt Collection Practices Act), citing, Westenhaver v. Dunnavant, 225 Ala. 400, 143 So. 823, 823 (Ala. 1932) ("[S]tatutory remedies for rights unknown to the common law are to be strictly construed)"; citing, Mathews v. Gov't Employees Ins. Co., 23 F. Supp. 2d 1160, 1165 (S.D. Cal. 1998 (concluding, based on California law, that a common-law negligence claim may not be raised to vindicate a statutory right that did not exist at common law and has its own comprehensive statutory remedies to vindicate it). Plaintiffs may not create a common law negligence claim relating to cell phone service where none existed at common law. Plaintiffs claims are, at best, breach of contract claims against T-Mobile, not tort claims against either Defendant. Plaintiffs have failed to state plausible claims of negligence against Wireless Vision South, LLC because they have failed to allege sufficient facts to support the elements of any such claim. Although Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 10 of 19 11 Plaintiffs have not actually alleged breach of contract, if they did, it would not support their privacy tort claims. In general, a breach of a contractual duty gives rise to a breach of contract claim, not a tort. See, USF Corp. v. Securitas Sec. Servs. USA Inc., 305 Ga. App. 404, 699 S.E.2d 554, 558 (Ga. Ct. App. 2010). Hence, Plaintiffs Complaint states no legally cognizable state law negligence or invasion of privacy claims against Wireless Vision South, LLC, and even if it did, the claims would be time barred under Georgia law. (B). PLAINTIFFS’ FEDERAL PRIVACY CLAIMS AGAINST WIRELESS VISION SOUTH FAIL AS A MATTER OF LAW: (1). Plaintiffs’ Privacy Claim Under the Privacy Act of 1974: At Paragraph 11 of the Complaint, Plaintiffs allege that the Defendants had a duty to protect Plaintiffs’ privacy, and at Paragraph 15, Plaintiffs allege this duty is based upon the Federal Privacy Act of 1974. Yet, the Federal Privacy Act of 1974 could not apply to any of the factual allegations made by the Plaintiffs. The Act applies only to governmental agencies. The Plaintiffs have not and could not truthfully allege that Wireless Vision South, LLC is a governmental agency subject to the Act. The Privacy Act "contains a comprehensive and detailed set of requirements for the management of confidential records held by Executive Branch agencies. If an agency fails to comply with those requirements 'in such a way as to have an Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 11 of 19 12 adverse effect on an individual,' the Act authorizes the individual to bring a civil action against the agency. 5 U.S.C. § 552a(g)(1)(D). For violations found to be 'intentional or willful,' the United States is liable for 'actual damages.' 5 U.S.C.§ 552a(g)(4)(A)." Fed. Aviation Admin. v. Cooper, 132 S. Ct. 1441, 1446, 182 L. Ed. 2d 497 (2012). The Privacy Act of 1974 generally prohibits disclosure of personal information about federal employees without their consent. See, 5 U.S.C. § 552a(b). Exceptions to the Privacy Act include disclosures required by FOIA. See, 5 U.S.C. § 552a(b)(2). In turn, FOIA itself exempts from disclosure certain information. See, 5 U.S.C. § 552(b). Further, the Privacy Act of 1974 provides no remedy for alleged inappropriate assignment of telephone numbers by telephone providers. See, Mills v. Verizon, No. 8:08-CV-00434-T-17-TBM, 2008 U.S. Dist. LEXIS 80811 (M.D. Fla., Sept. 23, 2008). And, although there is probably no reason to get this far in the analysis, the statute of limitations applicable to a Privacy Act claim is two years from the date on which the cause of action arises. 5 U.S.C. § 552a(g)(5). A cause of action "arises" under the Privacy Act when the aggrieved individual knows or has reason to know of the alleged violation. Smithers v. Wynne, Civil Action No. 5:05-cv-439 (CAR), 2007 U.S. Dist. LEXIS 23411 (M.D. Ga., Mar. 28, 2007), citing, Davis v. Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 12 of 19 13 U.S. Dep't of Justice, 204 F.3d 723, 726 (7th Cir. 2000); see also, Doe v. Nat'l Sec. Agency, 165 F.3d 17, 1998 WL 743665, at *2 (4th Cir. 1998). Just as for Plaintiffs’ negligence claims, if Plaintiffs had a cause of action under the Privacy Act, it would be time barred. Plaintiffs have not alleged nor could they properly allege any violation of the Privacy Act of 1974 by Defendant, Wireless Vision South, LLC. (2). Plaintiffs’ Unspecified Privacy Claims: Plaintiffs have made some sporadic and unspecified claims of violation of federal privacy laws, such as, at Paragraph 17 of the Complaint. However, Plaintiffs have cited only the Privacy Act of 1974 as a basis for their claims. The pleading must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In the instant case, Defendant, Wireless Vision South, LLC, asserts that Plaintiffs privacy claim must be measured by the law expressed in the Complaint. Vague references to federal Privacy Laws are insufficient. (3). Defendant, Wireless Vision, LLC’s, Alternative Request For More Definite Statement: The Eleventh Circuit has expressed the opinion that defendants faced with incomprehensible pleadings should file a motion for more definite statement. See, Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 13 of 19 14 Byrne v. Nezhat, 261 F.3d 1075, 1129-1132 (11th Cir. 2001). Fed. R. Civ. P. 12(d) states: If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed … the court may strike the pleading to which the motion was directed or make such order as it deems just. It is the position of Defendant, Wireless Vision South, LLC, that should Plaintiffs’ Complaint not be completely dismissed, Plaintiffs should be ordered to provide a more definite statement of their claims, including without limitation, specifying which federal statutes support their claims. CONCLUSION: For all of the reasons set forth herein, this Motion should be granted, and Plaintiffs’ Complaint should be completely dismissed. Alternatively, should any of Plaintiffs’ claims survive, Plaintiffs should be ordered to provide a more definite statement of their claims, including without limitation, by specifying which federal statutes support their claims. Respectfully submitted, s/ J. S. Streb Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 14 of 19 15 Joseph S. Streb Ohio Bar No. 0021786 (pro hac vice) Trial Attorney for Defendant, Wireless Vision South, LLC 736 Neil Avenue Columbus, OH 43215 Phone: (614) 224-0200 Fax: (614) 224-9323 E-mail: Streblaw@sbcglobal.net s/ Sean M. Libby Sean M. Libby Georgia Bar No. 363631 Trial Attorney for Defendant, Wireless Vision South, LLC Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 Phone: (404) 815-6500 Fax: (404) 815-6555) E-mail: SLibby@kilpatricktownsend.com Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 15 of 19 16 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KATHLEEN T. GOGUETTE, et al. : Plaintiffs, : vs. : Case No. 1:16-cv-04495-TWT WIRELESS VISION SOUTH, LLC : Judge T. Thrash, Jr. et al. : Defendants. : CERTIFICATION Defendant, Wireless Vision South, LLC, certifies that this document conforms to the font and point selections approved by the Court in LR 5.01C. s/ J. S. Streb Joseph S. Streb Ohio Bar No. 0021786 (pro hac vice) Trial Attorney for Defendant, Wireless Vision South, LLC 736 Neil Avenue Columbus, OH 43215 Phone: (614) 224-0200 Fax: (614) 224-9323 E-mail: Streblaw@sbcglobal.net s/ Sean M. Libby Sean M. Libby Georgia Bar No. 363631 Trial Attorney for Defendant, Wireless Vision South, LLC Kilpatrick Townsend & Stockton LLP Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 16 of 19 17 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 Phone: (404) 815-6500 Fax: (404) 815-6555) E-mail: SLibby@kilpatricktownsend.com Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 17 of 19 18 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KATHLEEN T. GOGUETTE, et al. : Plaintiffs, : vs. : Case No. 1:16-cv-04495-TWT WIRELESS VISION SOUTH, LLC : Judge T. Thrash, Jr. et al. : Defendants. : CERTIFICATE OF SERVICE I hereby certify that on December 27, 2016, I electronically filed the foregoing document, with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to the following attorney of record: Kathleen T. Goguette, pro se Roossevelt Goguette, pro se 899 Pathview Ct. Dacula, GA 30019 s/ J. S. Streb Joseph S. Streb Ohio Bar No. 0021786 (pro hac vice) Trial Attorney for Defendant, Wireless Vision South, LLC 736 Neil Avenue Columbus, OH 43215 Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 18 of 19 19 Phone: (614) 224-0200 Fax: (614) 224-9323 E-mail: Streblaw@sbcglobal.net s/ Sean M. Libby Sean M. Libby Georgia Bar No. 363631 Attorney for Defendant, Wireless Vision South, LLC Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 Phone: (404) 815-6500 Fax: (404) 815-6555) E-mail: SLibby@kilpatricktownsend.com Case 1:16-cv-04495-TWT Document 3 Filed 12/27/16 Page 19 of 19