SILVIOUS v. COCA-COLA COMPANY et al
MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Judge Reggie B. Walton on 9/28/12.(ah)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OWEN F. SILVIOUS,
COCA-COLA COMPANY et al.,
Civil Action No. 11-2113 (RBW)
In this action filed pro se in the Superior Court of the District of Columbia (“Superior Court”) on
October 20, 2011, the plaintiff is a prisoner at the Federal Correctional Institution in Butner, North
Carolina, suing the Coca-Cola Company and the Mid-Atlantic Coca-Cola Bottling Company for alleged
fraudulent labeling of its Coca-Cola soda cans and bottles in violation of the District of Columbia
Consumer Protection Procedures Act (“D.C. Consumer Protection Act”), D.C. Code §§ 28–3901-13
(2007). See generally Amended Complaint (“Am. Compl.”) [Dkt. # 15]. The plaintiff seeks damages
exceeding $750 million. Id. at 8. On November 28, 2011, the defendants, invoking this Court’s
diversity jurisdiction, removed the case from Superior Court to this Court. See Notice of Removal [Dkt.
# 1] ¶ 6. The defendants now move to dismiss the Amended Complaint for lack of subject matter
jurisdiction and for failure to state a claim upon which relief can be granted. The Coca-Cola Company’s
Motion to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(B)(1) and 12(B)(6) and 28
U.S.C. § 1915 (“Def.’s Mot.”) [Dkt. # 8]; see also The Coca-Cola Company’s Status Report to the Court
Regarding Whether Its Motion to Dismiss Will Require Supplementation in Light of the Amended
Complaint [Dkt. # 19] (adopting “in full its prior Motion to Dismiss the original Complaint with respect
to the Amended Complaint . . . ”). 1
Upon consideration of the defendant’s motion, the Plaintiff’s Opposition to Defendant’s Status
Report (Response) to the Court Whether It’s [sic] Motion to Dismiss Will Require Supplementation in
Light of the Amended Complaint (“Pl.’s Opp’n”) [Dkt. # 24], which includes counterarguments to the
defendant’s arguments for dismissal, and the defendant’s Reply in Support of the Coca-Cola Company’s
Motion to Dismiss Plaintiff’s Amended Complaint (“Def.’s Reply”) [Dkt. # 29], the Court finds that the
plaintiff has not established that he has standing to bring this lawsuit and that he, as a pro se plaintiff,
cannot pursue the claims of another individual. Hence, the Court will grant the defendant’s motion to
dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction. 2
The plaintiff contends that he is a citizen of Virginia pursuing this case in his own right and as
assignee for “Ethan Clay [who] is a citizen of the District of Columbia.” Am. Compl. ¶ 3. The plaintiff
alleges that “[t]he term plaintiff means Silvious and the Assignor whose shoes Silvious has stepped in as
The defendants clarify that the Mid-Atlantic Coca-Cola Bottling Company “is wholly owned
by the Coca-Cola Company.” Memorandum in Support of the Coca-Cola Company’s Motion to
Dismiss Plaintiff’s Complaint (“Def.’s Mem.”) at 1 n.1. The Court therefore will refer hereafter to the
defendant in the singular.
Even if the plaintiff could prosecute this action on his behalf, the defendant correctly argues
that this action is barred by the District’s three-year statute of limitations and, thus, is subject to
dismissal also under Rule 12(b)(6). See Def.’s Mem. at 5-8; Silvious v. Snapple Beverage Corp. 793 F.
Supp. 2d 414 (D.D.C. 2011) (finding same in the plaintiff’s similarly pleaded case against different
beverage company). The Court therefore will deny the plaintiff’s motion for leave to file a second
amended complaint [Dkt. # 26] on the ground of futility. See National Wrestling Coaches Ass'n v. U.S.
Dep’t of Educ., 263 F. Supp. 2d 82, 103 (D.D.C. 2003) (“Courts may deny a motion to amend a
complaint as futile . . . if the proposed claim would not survive a motion to dismiss.") (quoting James
Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)) (internal quotation marks omitted) (citing
a result of the Assignment [and] as that term is defined[,] [the plaintiff] purchased defendant’s product
in the District of Columbia during the period of September 8, 2008 and August 6, 2010[,] well within
the three year statute of limitations. Id. The plaintiff asserts that the “defendant sold and continues to
sell Coca-Cola in cans and bottles which state very ‘Coke Classic Original Formula’ on it’s [sic] cans
and ‘Coke Original Formula’ on the bottles which bear the name The Coca-Cola Company, Atlanta,
Georgia.” Id. ¶ 7. The plaintiff asserts further that the “Coca-Cola in the cans and bottles does not
contain the ‘Original Formula’ that was invented by a Chemist by the name of J. Pemberton in Atlanta,
Georgia in 1886[,]” id. ¶ 8, and that Coca-Cola “has not manfactured [sic], produced or used the
‘Original Formula’ invented by Dr[.] Pemberton in 1886 since at least 1899.” Id. ¶ 9.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) presents “a threshold
challenge to the court's jurisdiction.” Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010)
(quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). The plaintiff bears the burden of
establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). Accordingly, “the [p]laintiff's factual allegations in the
complaint . . . will bear closer scrutiny in resolving [the motion],” Grand Lodge of Fraternal Order of
Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (internal citation omitted), and “the court
need not limit itself to the allegations of the complaint,” id. at 14. Instead, “a court may consider such
materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has
jurisdiction [in] the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C.
“The defect of standing is a defect in subject matter jurisdiction.” Haase, 835 F.2d at 906;
accord Stein v. Bank of Am. Corp., No. 11-1400 (RBW), ___ F. Supp. 2d ___, 2012 WL 3671009, at *2
(D.D.C. Aug. 28, 2012) (citation omitted). “The ‘irreducible constitutional minimum of standing’ . . .
requires that three elements be satisfied:
First, the plaintiff must have suffered an injury in fact-an invasion of a
legally protected interest which is (a) concrete and particularized, [and] (b) actual
or imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of-the injury has to be
fairly traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court. Third, it must be likely,
as opposed to merely speculative, that the injury will be redressed by a favorable
Stein, 2012 WL 3671009, at *3 (quoting Lujan, 504 U.S. at 560-61).
Unlike in his previous case against Snapple, see Silvious v. Snapple Beverage Corp. 793 F. Supp.
2d 414, 416, 417 (D.D.C. 2011), the plaintiff does not allege in his amended complaint that he
purchased Coca-Cola in the District within the past three years, nor could he credibly assert this since it
was previously determined that he has been incarcerated “since at least February 11, 2005.” Id. at 419
(citation and internal quotation marks omitted). The plaintiff alleges instead that “Mr[.] Ethan Clay who
has assigned his rights under the [D.C. Consumer Protection Act] to plaintiff Silvious, purchased CocaCola in the District of Columbia 495 times during the period stated herein.” Am. Compl. ¶ 19; see id.,
Exhibit (“Ex.”) H (purported Assignment of Claims and Choses of Action DC Code 28-2304 of Ethan
Blecher-Clay). But it is long established that a pro se litigant generally cannot represent the interests of
other individuals, 28 U.S.C. § 1654; Stoddard v. D.C. Pub. Defender Servs., 535 F. Supp. 2d 116, 117
n.1 (D.D.C. 2008), and “[t]he federal courts have consistently rejected attempts at third-party lay
representation,” United States ex rel. Rockefeller v. Westinghouse Elec. Co., 274 F. Supp. 2d 10, 17
(D.D.C. 2003) (alteration in original) (quoting Herrera–Venegas v. Sanchez–Rivera, 681 F.2d 41, 42
(1st Cir. 1982)). There is no reason to permit the plaintiff to do so here. Despite the purported
assignment, 3 the plaintiff would be representing the interest of a third party or, as the defendant
reasonably surmises from the amended complaint’s allegations and demand for relief, a class of
individuals, in violation of 28 U.S.C. § 1654. See Def.’s Reply at 3-4; In re Heal, 442 B.R. 137, 139
(Bankr. N.D. Cal. 2010) (“The key phrase [in § 1654] is ‘their own cases’; a non-lawyer may not appear
nominally on his own behalf if the outcome might benefit third parties . . . . The statute may not be
circumvented through a purported assignment of claims.”) (citing cases).
For the foregoing reasons, the Court will grant the defendant’s motion to dismiss the amended
complaint under Rule 12(b)(1) for lack of jurisdiction, deny as futile the plaintiff’s pending motion for
leave to file a second amended complaint, and dismiss this case with prejudice. 4
Date: September 28, 2012
Reggie B. Walton
United States District Judge
The validity of the assignment document is questionable since it is “Dated [and was executed]
this 1 day of May, 2011 at Butner, NC,” where the plaintiff is incarcerated, and contains an wholly
illegible signature of the purported assignor. Am. Compl., Ex. H. Furthermore, a search of the United
States Bureau of Prisons’ inmate locator, http://www.bop.gov, reveals that an inmate named Ethan Jesse
Blecher-Clay is incarcerated at the same Butner facility (FCI Butner Medium II) as is the plaintiff and
has a projected release date of June 15, 2014. Since it is a reasonable assumption that the purported
assignor and the BOP inmate are one in the same, the listing of Blecher-Clay’s address in the purported
assignment as a residence in the northwest quadrant of the District of Columbia is seemingly a blatant
misrepresentation. The Court therefore will give no credence to this document and will order it stricken
from the record. See Fed. R. Civ. P. 12(f) (“The court may strike from a pleading . . . any . . .
impertinent . . . matter.”).
A separate final Order accompanies this Memorandum Opinion.