ALSTON v. WHOLE FOODS MARKET GROUP

Filing 16

ORDER granting 13 defendant's partial motion to dismiss. The Clerk is directed to mail a copy of this Order to the plaintiff's address of record by first-class mail, certified receipt. Signed by Judge Emmet G. Sullivan on 4/13/2018. (lcegs3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
THOMAS ALSTON,
)
Plaintiff,
)
)
v.
) Civ. Action No. 17-2580 (EGS)
)
WHOLE FOODS MARKET GROUP,
)
Defendant.
)
)
ORDER
On January 23, 2018, plaintiff Thomas Alston (“Mr. Alston”),
proceeding pro se, filed an amended complaint against defendant Whole
Foods Market Group (“Whole Foods”). See Am. Compl., ECF No. 12. Mr.
Alston sues Whole Foods on behalf of himself and “all other [sic]
similarly situated” for violations of the District of Columbia
Consumer Protection Procedures Act (“DCCPPA”), D.C. Code § 28-3901 et
seq., and common law fraud. Id. Mr. Alston alleges that Whole Foods
deceptively advertised certain products known as “Larabars” as being
on sale, while charging a non-sale price. Id.
On February 7, 2018, Whole Foods filed a partial motion to dismiss
as to Mr. Alston’s class action claims, arguing that Mr. Alston does
not have standing to pursue the rights of others by way of his class
action claims because he is not represented by an attorney. See
Def.’s Mot., ECF No. 13. When Mr. Alston did not respond within
fourteen days, pursuant to Local Rule 7(b), the Court sua sponte
extended his time to respond by a month, reminding him that failure

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to respond could result in his claim being dismissed. See Order, ECF
No. 15. The Order was sent to Mr. Alston’s address of record by
first-class mail, certified receipt. Id.
Almost two months have passed, and Mr. Alston has not filed a
response. Notwithstanding the fact that the Court may treat Whole
Food’s motion as conceded, see Local Rule 7(b) (“[i]f such a
memorandum [in opposition to a motion] is not filed within the
prescribed time, the Court may treat the motion as conceded”), the
Court independently finds that Mr. Alston may not bring class claims
as a pro se plaintiff.
Pro se litigants may plead only their own cases, see 28 U.S.C. §
1654, and are “not qualified to appear in the District Court . . . as
counsel for others.” Georgiades v. Martin–Trigona, 729 F.2d 831, 834
(D.C. Cir. 1984) (citing Herrera-Venegas v. Sanchez-Rivera, 681 F.2d
41, 42 (1st Cir. 1982) (“federal courts have consistently rejected
attempts at third-party lay representation”)). Therefore, “a class
member cannot represent the class without counsel, because a class
action suit affects the rights of the other members of the class.”
U.S. ex rel. Rockefeller v. Westinghouse Elec. Co., 274 F. Supp. 2d
10, 16 (D.D.C. 2003), aff’d sub nom. Rockefeller ex rel. U.S. v.
Washington TRU Solutions LLC, 2004 WL 180264 (D.C. Cir. Jan. 21,
2004) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975)). This principle applies to both of Mr. Alston’s class action
claims. See Rotunda v. Marriott Int’l, 123 A.3d 980, 988 (D.C.

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2015)(holding that Federal Rule of Civil Procedure 23 applies to
DCCPPA actions under D.C. law). It is therefore
ORDERED that the defendant’s partial motion to dismiss is GRANTED;
and it is further
ORDERED that the plaintiff’s class action claims against the
defendant for common law fraud and violations of the DCCPPA are
DISMISSED WITH PREJUDICE.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
April 13, 2018

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