Alston v. Verizon Delaware LLC et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 2/12/2018. (crb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VERIZON and ELAINE BUCCI,
: Civil Action No. 17-652-LPS
: Superior Court of the State of
: Delaware in and for Kent County
: C.A. No.Kl7C-05-00003 TBD
EShed Alston, Dover, Delaware, Pro Se Plaintiff.
Mary E. Sherlock, Esquire, Weber Gallagher Simpson Stapleton Fires & Newby LLP, Dover,
Delaware. Counsel for Defendants.
March 12, 2018
STARK, U.S. DistrictJudge:
Plaintiff EShed Alston ("Plaintiff'), who proceeds prose, filed this action on May 2, 2017, in
the Superior Court of the State of Delaware in and for Kent County, Alston v. Verizon, C.A. No.
Kl 7C-05-00003 TBD. (D.I. 1) Defendants removed the matter to this Court on May 30, 2017.
Currently pending are several motions filed by the parties including Defendants' motion to dismiss
and Plaintiffs combined motion for summary judgment and motion to remand, third discovery
motion, two motions for recusal, and a motion to expedite. (D.I. 3, 6, 14, 19, 24, 37) For the
reasons discussed below, the Court will grant Defendants' motion to dismiss, decline to exercise
jurisdiction over the supplemental state claims, and remand the case to the Superior Court of the
State of Delaware in and for Kent County.
In light of Plaintiffs challenge to the Court's impartiality, the Court will first consider
Plaintiffs motions for recusal. (D.I. 19, 24) Plaintiff seeks the undersigned's recusal asserting racial
bias and claiming that the undersigned failed to order an audit or require Defendant Verizon
Delaware LLC (''Verizon") (improperly pled as Verizon) to produce any evidence at all. (D .I. 19)
In addition, he takes exception to an order entered on October 13, 2017 denying his motion for an
escrow account. (D.I. 24) Finally, Plaintiff references rulings made by a judge, other than the
undersigned, in a different case.
The "decision of whether to recuse from hearing a matter lies within the sound discretion of
the trial court judge." United States v. Wilensky, 757 F.2d 594, 599-600 (3d Cir. 1985). The statutes
that address judicial recusal are 28 U.S.C. § 144 and 28 U .S.C. § 455. Neither of these statutes
provides a basis for recusal where a party is simply displeased with the court's legal rulings. See
Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000).
Under 28 U.S.C. § 144, recusal must occur "[w]henever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him or in favor of any adverse party." 28
U.S.C. § 144. A "substantial burden is imposed on the party filing an affidavit of prejudice to
demonstrate that the judge is not impartial." Sharp v. Johnson, 2007 WL 3034024, at *1 (W.D. Pa.
Oct. 15, 2007). In an affidavit of bias, the affiant has the burden of making a threefold showing:
(1) the facts must be material and stated with particularity; (2) the facts must be such that, if true,
they would convince a reasonable person that a bias exists; and (3) the facts must show that the bias
is personal, as opposed to judicial, in nature. See United States v. Thompson, 483 F.2d 527, 528 (3d Cir.
1973); Pi-Net Int'l Inc. v. Citizens Fin. Group, Inc., 2015 WL 1283196, at *6 (D. Del. Mar. 18, 2015).
Section 455(a) provides, in pertinent part, that "[a]ny justice, judge, or magistrate of the
United States shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned." 28 U.S.C. § 455(a). The test for recusal under § 455(a) is "whether a reasonable
person, with knowledge of all the facts, would conclude that the judge's impartiality might
reasonably be questioned." In re Kensington Int'/ Ltd., 368 F.3d 289, 296 (3d Cir. 2004) (citation
In his declaration and sworn statement, Plaintiff states that the undersigned failed to audit an
account, deliberately misspelled his name, and is "Verizon's aiding and abetting advocate." (D.I. 24
at 9) The statement also refers to an ongoing appeal before the Supreme Court of the State of
Delaware. Plaintiffs motion contains basically the same information, and also attributes racial
discrimination as the motive for alleged actions he perceives to have been taken against him.
Upon evaluation of Plaintiffs affidavit and motions for recusal, the undersigned finds no
basis from which to conclude that the Court has a personal bias or prejudice against Plaintiff or in
favor or any defendant to warrant recusal under 28 U.S.C. § 144. Of note, Plaintiff has failed to
carry his burden of making the threefold showing as to (1) specific facts (2) that would convince a
reasonable person that a bias exists and (3) that the bias was personal as opposed to judicial in
nature. See Thompson, 483 F.2d at 528. To the contrary, Plaintiff has presented conclusory and broad
statements premised entirely on conjecture.
Further, recusal under 28 U.S.C. § 455 is unwarranted because Plaintiffs allegations do not
implicate any evidence from which a reasonable person with knowledge of all the facts would
question the Court's impartiality. See In re Kensington, 368 F. 3d at 296. Plaintiff refers to the October
13, 2017 order (D.I. 22) that denied his motion for an escrow account. The record reflects the order
was based on legal precedent and not bias, prejudice, or animus. In addition, the motion was denied
without prejudice, giving Plaintiff the option of renewing the motion at a later time. Plaintiffs
dissatisfaction with the Court's prior decision is an insufficient basis for recusal. See Securacomm
Consulting, Inc., 224 F.3d at 278. Finally, "opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior proceedings, do
not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible." Iiteky v. United States, 510 U .S. 540, 555
Accordingly and for the above reasons, the Court will deny Plaintiffs requests for recusal.
This appears to be a billing dispute between Plaintiff and Verizon. Plaintiffs Complaint
alleges that Verizon's agents made verbal promises to him, and that Verizon breached the verbal
contract. (D.I. 1-1 at 2) The Complaint refers to consumer fraud and alleges that 'CVerizon's
honesty integrity and business and/ or billing practices are specifically called into question appearing
to be fraudulent actions." (Id.) The Complaint invokes the Fair Debt Collection Practices Act
("FDCPA"), alleging that "the unfair fabricated alleged debt unilaterally created by Verizon is
contested." (Id. at 3) Plaintiff takes exception to the bills he has received from Verizon. (Id.)
Plaintiff seeks damages as well as fees and costs.
MOTION TO DISMISS
Defendants move to dismiss the claims raised under the FDCPA, 15 U.S.C. § 1692 et seq.,
pursuant to Rule 12(b)(6) for failure to state a claim. (D.I. 3) Plaintiff opposes, stating that his
primary claim is consumer fraud and his secondary claim is under the FDCPA. (D.I. 4, 5)
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the
Court to accept as true all material factual allegations of the complaint. See Spruill v. Gillis, 372 F.3d
218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant
such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as
true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio
v. Aetna, Inc., 221 F .3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).
A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); Bell AtL Corp. v. Twomb/y, 550 U .S. 544, 555 (2007) . A plaintiff
must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of
Shelby, _ U.S._, 135 S.Ct. 346,347 (2014). A complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted. See id. at 346.
"To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief
above the speculative level on the assumption that the allegations in the complaint are true (even if
doubtful in fact)."' Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Twomb/y, 550
U.S. at 555). A claim is facially plausible "when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678. At bottom, "[t]he complaint must state enough facts to raise a reasonable
expectation that discovery will reveal evidence of [each] necessary element" of a plaintiffs claim.
Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation
The Court is not obligated to accept as true "bald assertions," Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported conclusions and
unwarranted inferences," Scht()llkill Energy Res., Inc. v. Penn.rylvania Power & Ught Co., 113 F.3d 405,
417 (3d Cir. 1997), or allegations that are "self-evidently false," Nami v. Fauver, 82 F.3d 63, 69 (3d
Cir. 1996). Because Plaintiff proceeds pro se, his pleading is liberally construed and his 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 (2007) (internal quotation marks omitted).
The purpose of the FDCPA is to "eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses." 15 U.S.C. § 1692e. "The statute contains a
nonexhaustive list of conduct that violates § 1692e .... " Simon v. FIA Card Serv. NA, 639 F. App'x
885,888 (3d Cir. Feb. 17, 2016). A debt collector is in violation of the FDCPA ifhe or she uses
"any false, deceptive, or misleading representation or means in connection with the collection of any
debt." 15 U.S.C. § 1692e.
The FDCPA is broadly construed in order to give full effect to its purposes. See Brown v.
Card Serv. Ctr., 464 F.3d 450,453 (3d Cir. 2006). "To prevail on a FDCPA claim, a plaintiff must
prove that: (1) he is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged
practice involves an attempt to collect a 'debt' as the Act defines it, and (4) the defendant has
violated a provision of the FDCPA." Douglass v. Convergent Outsourcing, 765 F.3d 299,303 (3d Cir.
Defendants move for dismissal on the grounds that the Complaint does not state a
cognizable FDCPA claim. More particularly, they argue that the Complaint fails to allege they are
debt collectors as defined by the FDCPA and, in particular, note that Verizon is an original creditor.
As a result, any alleged communications with Plaintiff were made in an attempt to collect its own
The provisions of the FDCPA generally apply only to "debt collectors." See Po/lice v. National
Tax Funding, LP., 225 F.3d 379, 403 (3d Cir. 2000). The Act defines a "debt collector" as "any
person who uses any instrumentality of interstate commerce or the mails in any business the
principal purpose of which is the collection of any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U .S.C.
"Creditors -- as opposed to "debt collectors" -- Generally are not subject to the FDCPA."
Id. (citingAuberlv.American Gen. Fin., Inc., 137 F.3d 976,978 (7th Cir. 1998) ("Creditors who collect
in their own name and whose principal business is not debt collection ... are not subject to the Act.
. . . Because creditors are generally presumed to restrain their abusive collection practices out of a
desire to protect their corporate goodwill, their debt collection activities are not subject to the Act
unless they collect under a name other than their own.")). The allegations in the Complaint lead to
no conclusion other than that Verizon is a creditor attempting to collect its own debt. As a result,
Plaintiff's FDCPA claim fails as a matter of law. Therefore, the Court will grant Defendants'
motion to dismiss the claim.
Plaintiff seeks remand of this matter to the Superior Court. (D.I. 6) His motion will be
denied; however, the Court will remand this matter for the following reasons. As discussed above,
the Court will grant Defendants' motion to dismiss the FDCPA claims. Because the FDCPA claim
will be dismissed, the Court does not have jurisdiction under 28 U.S.C. § 1331. Nor does the Court
have jurisdiction under 28 U .S.C. § 1332. While Defendants are citizens are citizens of different
states, the amount in controversy does not exceed the sum or value of $75,000. See 28 U.S.C.
§ 1332(a). The Complaint seeks "additional monetary damages of $3500."
While not discussed by Defendants, the Complaint also contains a consumer fraud claim
that appears to have been raised under State law. Plaintiff refers to this claim as his primary claim.
The Court may decline to exercise jurisdiction over the supplemental state law claim when it has
dismissed all claims over which is has original jurisdiction. See 28 U.S.C. § 1367. The Court will
remand the matter to the Superior Court of the State of Delaware in and for Kent County to handle
Plaintiff's primary claim. See e.g., Borough ef W Mijfiin, 45 F .3d 780, 788 (3d Cir. 1995) ("[W]e believe
that in a case that has been removed from a state court, a remand to that court is a viable alternative
to a dismissal without prejudice.").
For the above reasons, the Court will: (1) grant Defendants' motion to dismiss (D.I. 3);
(2) deny Plaintiff's motion to remand and motions for recusal (D.I. 6, 19, 24); (3) deny all remaining
motions as moot (D.I. 6, 14, 37); and (4) remand this matter to the Superior Court of the State of
Delaware in and for Kent County.
An appropriate Order will be entered.
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