Hoglund v. Charter Communications Inc et al
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/9/2018. (PSM)
2018 Oct-09 AM 10:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Memorandum of Opinion
Plaintiff Clarence Robert Hoglund, Jr. (“Hoglund”) filed this action
against Charter Communications, Inc. (“Charter”), Thomas M. Rutledge, and
Employees of the Gardendale Alabama Office of Charter Communications
(collectively “Defendants”), alleging violations of the Sherman Antitrust Act,
the Robison-Patman Act, Americans with Disabilities Act, Hobbs Act,
Fourteenth Amendment of the United States Constitution, and Ala. Code §
13A-6-193. Before this Court is Defendants’ motion to dismiss. (Doc. 8.) The
motion has been fully briefed and is now ripe for review. For the reasons
stated below, Defendants’ motion to dismiss (doc. 8) is due to be granted.
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Hoglund is a seventy-six-year-old disabled veteran. In January 2014,
Hoglund moved to a condominium complex in Trussville, Alabama. He
specifically chose this complex because he would be able to install a Dish
satellite to watch television. Hoglund’s landlord allowed him to install the
satellite, and between January 2014 and June 2016, Dish provided Hoglund
with uninterrupted television service.
In June 2016, Hoglund requested Charter internet service. When a
Charter technician came to Hoglund’s condominium, he disabled the Dish
satellite. The technician told Hoglund that he had been instructed to
disconnect any cable connection not provided by Charter. After calling
Charter and receiving an apology, Hoglund apparently had the satellite
repaired. According to Hoglund, this scene repeated itself multiple times until
he moved in April 2017. Every few weeks, Charter would come and
disconnect the Dish satellite and Hoglund would then have the satellite
repaired. This resulted in Hoglund losing television service for days at a time.
In evaluating a motion to dismiss, this Court “accept[s] the allegations in the complaint
as true and construe[s] the facts in the light most favorable to the plaintiff.” Johnson v.
Midland Funding, LLC, 823 F.3d 1334, 1337 (11th Cir. 2016). The following facts, are
therefore, taken from the allegations contained in Hoglund’s Complaint, and the Court
makes no ruling on their veracity.
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When Hoglund contacted Charter’s Gardendale, Alabama office, he
was told that Charter owned all of the cable lines in his condominium
complex so that only Charter could provide television service to its residents.
Following Hoglund’s conversation with Charter’s Gardendale office, he made
numerous customer service complaints and wrote to Charter CEO Thomas
Rutledge about the satellite disconnection, but according to Hoglund, those
complaints were falsely categorized as complaints about Charter’s internet
service. Hoglund also filed a complaint with the Federal Communications
Commission, which he alleges Charter responded to by stating that all of
Hoglund’s prior complaints related to internet service problems and not his
Dish satellite. Hoglund claims that his issues with Charter forced him to move
out of his condominium and into a single-family residence. He contends that
this move has caused him serious financial, emotional, and physical harm
because he now lives farther from friends, medical facilities, and shopping
areas and has had to hire someone to help maintain his house.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure require that a complaint provide
“a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). To meet this standard, the complaint must
state enough facts to raise the right to relief “above a speculative level.” Bell
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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings based upon
“labels and conclusions” or “naked assertion[s]” without supporting factual
allegations will not suffice. Id. at 555, 557. A party need not specifically plead
each element in his or her cause of action, but the pleading must contain
“enough information regarding the material elements of a cause of action to
support recovery under some viable legal theory.” Am. Fed’n of Labor &
Cong. Of Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178, 1186 (11th Cir.
2011). Ultimately, the Court must be able to draw a reasonable inference
from the facts that the other party is liable. Reese v. Ellis, Painter, Ratterree
& Adams, LLP, 678 F.3d 1211, 1215 (11th Cir. 2012). The Court must
construe pleadings broadly and resolve inferences in the nonmoving party’s
favor. Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th
Moreover, the Court must liberally construe Hoglund’s complaint
because he submitted his complaint pro se. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). However, while a pro se plaintiff will be given greater
leniency, “[t]his leniency . . . does not require or allow courts to rewrite an
otherwise deficient pleading in order to sustain an action.” Thomas v.
Pentagon Fed. Credit Union, 393 F. App’x. 635, 637 (11th Cir. 2010).
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To survive a motion to dismiss, the plaintiff’s complaint must “state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. To be
plausible, the claim for relief must contain “enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence” to support the
claim. Id. at 556. If this Court decides that the facts pleaded by plaintiff do
not state a plausible claim, the complaint is due to be dismissed. Id. at 570.
To have facial plausibility, the plaintiff’s complaint must plead “factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
Hoglund first brings claims against Charter under Sections One and
Two of the Sherman Antitrust Act. To bring a claim under Section One, 15
U.S.C. § 1, a plaintiff must allege (1) an agreement between two or more
persons or business entities, (2) designed to achieve an unlawful objective,
(3) that actually restrains trade. See Aquatherm Indus., Inc. v. Fla. Power &
Light Co., 145 F.3d 1258, 1262 (11th Cir. 1998). Moreover, the plaintiff must
define both the relevant product and geographic markets. See Jacobs v.
Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1336 (11th Cir. 2010). Section Two
of the Sherman Antitrust Act, 15 U.S.C. § 2, prohibits (1) monopolization; (2)
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attempted monopolization; and (3) conspiracies to monopolize. See 15
U.S.C. § 2. Like claims brought under Section One, the failure to define either
the product or geographic boundaries of a relevant market is fatal to a
monopolization claim. See Spanish Broad. Sys. of Fla., Inc. v. Clear Channel
Commc’ns. Inc., 376 F.3d 1065, 1074 (11th Cir. 2004).
For antitrust purposes, the geographic market “is the area in which the
product or its reasonably interchangeable substitutes are traded.” T. Harris
Young & Assoc., Inc. v. Marquette Elecs., Inc., 931 F.2d 816, 823 (11th Cir.
1991). In other words, “[t]he relevant market is the ‘area of effective
competition’ in which competitors generally are willing to compete for
consumer potential . . . .” Am. Key Corp. v. Cole Nat. Corp., 762 F.2d 1569,
1581 (11th Cir. 1985).
Here, Hoglund does not specifically define the relevant product or
geographic markets. Construing Hoglund’s complaint liberally, the Court
finds that the relevant product market at issue is television and internet
services. The closest Hoglund comes to defining the relevant geographic
market is describing Charter’s control over the cable lines in his
condominium complex located at 811 Penny Lane, Trussville, Alabama.
Common sense dictates that the relevant geographic market cannot be this
narrow. Charter, Dish, and other television providers compete with each
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other to service consumers throughout the United States and not just the
occupants of Hoglund’s condominium complex. Moreover, when the
condominium residents signed their leases they had the ability to, as
Hoglund did, inquire into the cable and internet services that would be
available to them. If they wished for a provider other than Charter, they could
have chosen to live somewhere else. Thus, at some point, Charter competed
for the residents’ business, and the condominium complex is not so isolated
from the rest of the economy as to plausibly form a distinct geographic
market. See Wampler v. Sw. Bell Tel. Co., 597 F.3d 741, 746 (5th Cir. 2010)
(finding that one multiple dwelling unit did not constitute a plausible
geographic market because AT&T had to initially compete with other internet
service providers to contract with the unit and those dissatisfied with AT&T’s
services could choose to live somewhere else). Accordingly, Hoglund’s
Sherman Act claims fail as a matter of law.
Additionally, Hoglund alleges that Charter violated Section 3 of the
Robison-Patman Act, 15 U.S.C. § 13a, stating that Charter’s actions denied
him the benefits of competition. The Supreme Court has held that private
causes of action may not be brought under this criminal statute. See
Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 381 (1958). Thus,
Hoglund may not bring a claim under 15 U.S.C. § 13a. Even assuming
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Hoglund meant to bring this claim under Section 2(a) of the RobinsonPatman Act, 15 U.S.C. § 13(a), his claim fails as a matter of law. To show a
violation of this provision, a plaintiff must allege: “(1) That the defendant is
engaged in commerce; (2) that, in the course of such commerce, the
defendant has discriminated in price between different purchasers of
commodities of like grade and quality; (3) that either or any of the purchases
involved in such discrimination are in commerce; and (4) that there is likely
to be a severe, adverse effect on competition.” Littlejohn v. Shell Oil Co., 483
F.2d 1140, 1143–44 (5th Cir. 1973).2 Hoglund’s complaint is bereft of facts
or allegations that Charter ever engaged in price discrimination. Therefore,
regardless of whether Hoglund is alleging a violation of Section 2(a) or
Section 3 of the Robinson-Patman Act, this claim is due to be dismissed. 3
Hoglund also asserts a claim under Title III of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. 4 A claim under Title III of
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions by the former Fifth Circuit prior to
October 1, 1981.
3 To the extent that Hoglund seeks damages under Section Four of the Clayton Act, he
is not entitled to them because he has not sufficiently alleged violations of any
underlying antitrust law. See 15 U.S.C. 15(a).
4 The ADA has three sections. Title I regulates discrimination in the workplace. Title II
prohibits discrimination by public entities. Title III prohibits discrimination by private
entities in places of public accommodation. Although Hoglund does not specify which
section of the ADA he claims Charter violated, Charter is neither a public entity nor
Hoglund’s workplace. Therefore, the Court will construe Hoglund’s complaint as
bringing a claim under Title III.
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the ADA must allege (1) that the plaintiff is an individual with a disability; (2)
that the defendant is a place of public accommodation; and (3) that the
defendant denied the plaintiff full and equal enjoyment of the goods,
services, facilities or privileges offered by defendant (4) on the basis of his
disability. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1299
(11th Cir. 2005). The ADA’s definition of “public accommodation” does not
include a business that provides services to private residences. See 42
U.S.C. § 12101(7). Also, Hoglund’s complaint does not allege that Charter
interrupted his Dish satellite service because of his disability. Thus, Hoglund
fails to state a claim under Title III of the ADA.
Hoglund next attempts to bring a claim under the Hobbs Act, 18 U.S.C.
§ 1951, alleging that the disruption of his access to Dish’s television services
constituted robbery and that Charter’s implied threat to continue
disconnecting his Dish satellite amounted to extortion. The Hobbs Act is a
criminal statute that prohibits robbery or extortion within the context of
interstate commerce. See 18 U.S.C. § 1951(a). An implied private right of
action under a federal statute may only be found when there is “clear
evidence of Congress’s intent to create a cause of action.” McDonald v. State
Farm Bureau Life Ins. Co., 291 F.3d 718, 723 (11th Cir. 2002) (quoting
Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1345 (11th Cir.
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1997)). There is no evidence that Congress intended to create a private
cause of action under the Hobbs Act. See Wisdom v. First Midwest Bank, of
Popular Bluff, 167 F.3d 402, 409 (8th Cir. 1999) (holding that “neither the
statutory language of 18 U.S.C. § 1951 nor its legislative history reflect an
intent by Congress to create a private right of action”); see also Brookhart v.
Rohr, 385 F. App’x. 67, 68 (3d Cir. 2010) (“The Hobbs Act provides only for
criminal sanctions and not civil relief.”). Therefore, Hoglund’s claim under the
Hobbs Act is due to be dismissed.
Next, Hoglund asserts a claim under the Fourteenth Amendment to the
United States Constitution, alleging Charter’s refusal to allow him to choose
the television provider of his choice violated his civil rights. The Fourteenth
Amendment “can be violated only by conduct that may be fairly characterized
as ‘state action.’” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924
(1982). It does not apply to the conduct of private parties unless those parties
are acting on behalf of the state. See Nat’l Broadcasting Co., Inc. v.
Commc’ns Workers of Am., 860 F.2d 1022, 1024–25 (11th Cir. 1988).
Charter is a private company. Hoglund’s complaint contains no facts or
allegations that Charter disconnected his Dish satellite at the request of the
state. Thus, the complaint fails to state a claim under the Fourteenth
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Finally, Hoglund brings a claim under Ala. Code § 13A-6-193, alleging
that Charter’s employees abused him by disrupting his access to the Dish
satellite. Section 13A-6-193 is an Alabama criminal statute that prohibits
elder abuse and neglect. See Ala. Code § 13A-6-193. Under Alabama law,
“[o]ne claiming a private right of action within a statutory scheme must show
clear evidence of a legislative intent to impose civil liability for a violation of
the statute.” Century Tel of Ala. v. Dothan/Houston Cty. Commc’ns Dist., 197
So. 3d 456, 463 (Ala. 2015) (quoting Am. Auto. Ins. Co. v. McDonald, 812
So. 2d 309, 311 (Ala. 2001)). There is no evidence that this elder abuse
statute was intended to create a private cause of action. Thus, Hoglund has
not sufficiently stated a claim under the Alabama elder abuse statute.
In sum, Hoglund’s complaint fails to state a claim under the Sherman
Antitrust Act, Robinson-Patman Act, Americans with Disabilities Act, Hobbs
Act, Fourteenth Amendment, or Ala. Code § 13A-6-193. To the extent that
Hoglund would be able to assert any claim against Charter, it would be an
Alabama state law claim for tortious interference with property rights. This
Court doubts that it would have subject matter jurisdiction over such a claim.
Because Hoglund’s complaint fails to state a claim upon which relief can be
granted, it is due to be dismissed.
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For the reasons stated above, Defendants’ motion to dismiss (doc. 8)
is due to be GRANTED and this case DISMISSED WITH PREJUDICE. A
DONE and ORDERED on October 9, 2018.
L. Scott Coogler
United States District Judge
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