TruthInAdvertisingEnforcers.com v. Dish Network, L.L.C. et al
Filing
113
ORDER: Defendants' Motions to Dismiss (Doc. ## 86 , 88 , 89 , 90 , 91 , 92 ) are granted as set forth herein. Due to a lack of subject matter jurisdiction, this action is remanded to the Sixth Judicial Circuit, in and for Pasco County, Florida. Once remand is effected, the Clerk is directed to close the case. Signed by Judge Virginia M. Hernandez Covington on 12/14/2016. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRUTHINADVERTISINGENFORCERS.COM,
Plaintiff,
v.
Case No. 8:16-cv-2366-T-33JSS
DISH NETWORK, LLC, GODISH.COM,
LLC, INFINITY SALES GROUP, LLC,
FRONTIER COMMUNICATIONS, INC.,
HUGHES NETWORK SYSTEMS, LLC,
and EARTHLINK, LLC,
Defendants.
________________________________/
ORDER
This
matter
comes
before
the
Court
pursuant
to
Defendants EarthLink, LLC’s Motion to Dismiss (Doc. # 86),
Frontier Communication Corporation’s Motion to Dismiss (Doc.
# 88), Hughes Network Systems, LLC’s Motion to Dismiss (Doc.
# 89), Dish Network, LLC’s Motion to Dismiss (Doc. # 90),
Godish.com, LLC’s Motion to Dismiss (Doc. # 91), and Charter
Communications, Inc.’s Motion to Dismiss (Doc. # 92), all
filed
on
October
3,
TruthInAdvertisingEnforcers.com
2016.
filed
Plaintiff
responses
in
opposition on November 3, 2016. (Doc. ## 106-111). For the
1
reasons that follow, the Court grants the Motions and remands
the case to state court.
I.
Background
Pro
se
plaintiff
TruthInAdvertisingEnforcers.com
(Truth) is a website solely owned by Gerald Collette. (Doc.
# 70 at ¶ 6). The Court has found that Truth, as a sole
proprietorship, may proceed pro se. (Doc. # 27). Collette is
a resident of Pasco County, Florida, and he received the
advertisements at issue at his residence there. (Doc. # 70 at
¶¶ 6, 28).
Defendants include five internet service providers, whom
Truth calls “Respondeat Superior Defendants,” and two sales
agents for those service providers, whom Truth calls “Agency
Defendants.” The five internet service provider Defendants
are
Dish
Network,
Frontier
Communications,
Charter
Communications, Hughes Network Systems, and EarthLink. (Id.
at ¶¶ 7, 10-13). The sales agent Defendants are Godish.com,
and Infinity Sales Group. (Id. at ¶¶ 8-9).
Truth’s claims concern a number of advertisements for
high-speed internet services, which indicate that customers
may purchase high-speed internet services from Defendants at
lower prices than are actually available to consumers in Pasco
County, such as Truth. (Id. at ¶¶ 28, 52). For example, Truth
2
asserts that an advertisement containing the following claim
constituted “bait and switch” false advertising:
HIGH SPEED INTERNET Starting at $19.99 month
No Matter Where You Live! No TV Service Required!
(Id. at ¶ 17).
Truth asserts that it has received a number of such
advertisements from the sales agent Defendants on behalf of
the internet service provider Defendants. (Id. at ¶ 28).
However, when Collette made two phone calls to inquire into
these offers in July of 2016, he was told that the advertised
bargain prices were unavailable in Pasco County. (Id. at ¶¶
40-41). Truth does not allege that it purchased the higherpriced services it was offered during those phone calls.
Truth
stipulates
that
“before
responding
to
the
Advertised Bargains, [it] recognized the possibility that the
Advertised Bargains might not really be as they appeared, and
that there might be one or more ‘catches to them’” and that
“the fine print in such advertisements . . . may have stated
the
fact
of
Nevertheless,
limited
Truth
availability.”
claims
that
(Id.
it
at
¶¶
“responded
44,
to
58).
the
Advertised Bargains in reliance on the possibility that the
Advertised Bargains were real, with no catches.” (Id. at ¶
45). Thus, Truth “was harmed by the conduct” of Defendants
3
when it “failed to realize the benefit, from either Agent
Defendant, of obtaining the expected Advertised Bargains.”
(Id. at ¶¶ 64-65). However, Truth admits that any “actual
damages resulting from each of the causes of action set forth
[] are de minimis.” (Id. at ¶ 221).
Truth alleges that the sales agent Defendants knew the
advertisements were misleading, but sent them to consumers
like Truth to bait them into purchasing higher cost services.
(Id. at ¶¶ 54-56). According to Truth, the internet service
provider Defendants were negligent in hiring the sales agent
Defendants
and
knew,
or
should
have
known,
that
these
advertisements were misleading, but allowed them to be mailed
in order to mislead potential customers. (Id. at ¶¶ 169-71,
219).
Truth, along with Collette and Diane Hansen, initiated
this action pro se in the Sixth Judicial Circuit, in and for
Pasco County, Florida, on July 26, 2016, alleging violations
of the Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. § 1961, et seq., and Florida RICO, as well
as various other state claims related to false advertising
and conspiracy. (Doc. # 2). On August 18, 2016, Defendants
removed the case to this Court. (Doc. # 1).
4
On
August
25,
2016,
Truth
filed
its
First
Amended
Complaint, which removed all federal claims, and a Motion to
remand. (Doc. ## 18-19). However, on August 30, 2016, Truth
withdrew its Motion to remand. (Doc. # 46). Subsequently, on
August 31, 2016, Truth, as sole Plaintiff, filed its Second
Amended
Complaint,
which
re-alleged
the
federal
claims
asserted in the original Complaint. (Doc. # 48). The Court
struck the Second Amended Complaint as a shotgun pleading on
August 31, 2016. (Doc. # 53).
Truth filed its Third Amended Complaint on September 2,
2016. (Doc. # 61). With the consent of all Defendants, Truth
filed its forty-nine page Fourth Amended Complaint, which
asserts a total of 128 causes of action against the Defendants
on September 14, 2016. (Doc. # 70). Twenty-four causes of
action
are
brought
against
the
sales
agent
Defendants,
Godish.com and Infinity. The remaining 104 causes of action
are against the five internet service provider Defendants.
Six of the seven Defendants filed Motions to Dismiss on
October 3, 2016. (Doc. ## 86, 88-92). Truth filed responses
in opposition on November 3, 2016. (Doc. ## 106-111). The
Motions are ripe for review.
5
II.
Legal Standard
A. Rule 12(b)(1)
Motions
to
dismiss
for
lack
of
subject
matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1)
may
attack
jurisdiction
facially
or
factually.
Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir.
2003). When the jurisdictional attack is facial, as in the
present case, the Court looks to the complaint to determine
if the “plaintiff has sufficiently alleged a basis of subject
matter jurisdiction, and the allegations in his complaint are
taken as true for the purposes of the motion.” Lawrence v.
Dunbar,
919
F.2d
1525,
1529
(11th
Cir.
1990)(internal
quotations and citations omitted). “On a facial attack, a
plaintiff is afforded safeguards similar to those provided in
opposing a Rule 12(b)(6) motion.” Id.
B. Rule 12(b)(6)
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this
Court
favors
the
plaintiff
with
all
reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
6
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
of
review
must
be
limited
to
the
four
corners
of
the
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Analysis
The Court construes pro se pleadings liberally and holds
them to a less stringent standard than pleadings drafted by
attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003)(quoting Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998)). This liberal construction “does not
give a court license to serve as de facto counsel for a party,
or to rewrite an otherwise deficient pleading in order to
7
sustain an action.” GJR Invs., Inc. v. Cty. of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998)(citation omitted), overruled
in part on other grounds as recognized in Randall v. Scott,
610 F.3d 701, 709 (11th Cir. 2010).
Construing the Fourth Amended Complaint liberally, the
Court finds that Truth lacks Article III standing to bring
its claims, lacks statutory standing to bring its RICO claim,
and
cannot
bring
a
civil
claim
under
the
other
federal
statutes upon which it relies. Thus, the case should be
remanded to state court.
A.
Standing
Charter and Earthlink argue that Truth lacks standing to
bring any of its claims because Truth has not alleged the
existence of an injury in fact. (Doc. # 86 at 7; Doc. # 92 at
10). The Court agrees.
The
doctrine
of
standing
“limits
the
category
of
litigants empowered to maintain a lawsuit in federal court to
seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547 (2016). To establish standing, “[t]he
plaintiff must have (1) suffered an injury in fact, (2) that
is
fairly
traceable
to
the
challenged
conduct
of
the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Id.
8
The injury in fact requirement is the most important
element. Id. An injury in fact is “‘an invasion of a legally
protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Id.
at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560 (1992)). The injury must be “particularized,” meaning it
“must affect the plaintiff in a personal and individual way.”
Id. Additionally, the injury must be “concrete,” meaning “it
must
actually
exist.”
Id.
The
Supreme
Court
in
Spokeo
emphasized that a plaintiff cannot “allege a bare procedural
violation, divorced from any concrete harm, and satisfy the
injury-in-fact requirement of Article III.” Id. at 1549.
Truth stipulates that its “actual damages resulting from
each of the causes of action set forth [] are de minimis,”
and is seeking only punitive damages. (Doc. # 70 at ¶ 221).
Although Truth states that it “was harmed by the conduct” of
Defendants because it “failed to realize the benefit . . . of
obtaining
the
expected
Advertised
Bargains,”
the
Fourth
Amended Complaint is devoid of allegations to support that
Truth has incurred a concrete injury in fact. (Doc. # 70 at
¶¶ 64-65).
Truth does not allege that it purchased more expensive
internet services after it was induced by the advertisements
9
to inquire about the advertised prices. Nor does Truth allege
that its minimal actual damages comprised more than the
failure to realize the benefit of the advertised prices.
Rather, the injury appears to be that advertised lower prices
for Defendants’ services were not offered to Truth, which
Truth alleges is a violation of various laws.
Essentially, Truth is alleging bare violations of false
advertising laws by Defendants’ advertisements. Cf. Braitberg
v.
Charter
Commc’ns,
Inc.,
836
F.3d
925,
930
(8th
Cir.
2016)(finding no Article III standing where the plaintiff
consumer had alleged only that the defendant cable company
“violated
a
duty
to
destroy
personally
identifiable
information by retaining that information longer than the
company
should
have
kept
it”
without
alleging
that
the
information was disclosed or used in any way); Hancock v.
Urban Outfitters, Inc., 830 F.3d 511, 514 (D.C. Cir. 2016)
(dismissing consumer protection case for lack of standing and
noting that plaintiffs “assert[ed] only a bare violation of
the
requirements
of
D.C.
law
in
the
course
of
their
purchases”); Williams v. Purdue Pharm. Co., 297 F. Supp. 2d
171, 178 (D.D.C. 2003)(dismissing false advertising claim for
lack of standing and stating that “[t]he invasion of a purely
legal right without harm to the consumer — in this case, to
10
freedom from alleged false and misleading advertising — can
be addressed through the administrative process”).
The Court finds that Truth’s failure to obtain the lowest
price advertised in the high-speed internet advertisements,
without being induced to purchase higher priced services by
those advertisements, is not a concrete injury. It is merely
the personal disappointment of Truth’s expectations about the
price
it
could
pay
for
internet
services.
See
Kawa
Orthodontics, LLP v. Sec’y, U.S. Dep’t of the Treasury, 773
F.3d 243, 246 (11th Cir. 2014), cert. denied sub nom. Kawa
Orthodontics, LLP v. Lew, 136 S. Ct. 64 (2015)(“In short,
Kawa’s complaint alleges only a subjective perception that
Treasury’s delay caused it harm, which is insufficient to
establish Article III standing.”). Such an abstract injury is
not
enough.
O’Shea
v.
Littleton,
414
U.S.
488,
494
(1974)(“Abstract injury is not enough. It must be alleged
that the plaintiff ‘has sustained or is immediately in danger
of
sustaining
some
direct
injury’
as
the
result
of
the
challenged statute or official conduct.”)(citation omitted).
Furthermore,
another
injury
the
that
Court
Truth
cannot
has
not
hypothesize
alleged
whether
exists.
Kawa
Orthodontics, 773 F.3d at 246 (11th Cir. 2014)(“We may not
hypothesize or speculate about the existence of an injury
11
Kawa did not assert.”); see also Wright Ins. Agency, Inc. v.
Nationwide Mut. Fire Ins. Co., No. 8:15-cv-1857-T-33JSS, 2016
WL 1546536, at *4 (M.D. Fla. Apr. 15, 2016)(“Plaintiffs allege
no additional harm, economic or otherwise, resulting from
Nationwide’s
alleged
bad
faith,
and
this
Court
may
not
speculate about an injury not asserted.”).
B.
RICO Statutory Standing
The Fourth Amended Complaint also fails to establish the
requisite statutory standing to bring a civil RICO claim. The
federal civil RICO statute, 18 U.S.C. § 1962(c), makes it
illegal “for any person employed by or associated with any
enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity.” Williams
v. Mohawk Indus., Inc., 465 F.3d 1277, 1282 (11th Cir. 2006),
abrogated
on
other
Sanderson
Farms,
grounds
Inc.,
744
as
recognized
F.3d
702,
in
714–15
Simpson
(11th
v.
Cir.
2014)(citations and quotations omitted). To assert a federal
civil RICO claim, a plaintiff must allege (1) conduct (2) of
an enterprise (3) through a pattern (4) of racketeering
activity. Id.
12
Additionally,
to
establish
a
civil
RICO
claim,
a
plaintiff must demonstrate that he or she has statutory
standing, the requirements of which are set out in § 1964(c).
Adell v. Macon Cty. Greyhound Park, Inc., 785 F. Supp. 2d
1226, 1237 (M.D. Ala. 2011)(citing Williams, 465 F.3d at 128283). These requirements are: “(1) the requisite injury to
‘business or property,’ and (2) that such injury was ‘by
reason of’ the substantive RICO violation.” Ray v. Spirit
Airlines, Inc., 836 F.3d 1340, 1348 (11th Cir. 2016)(citing
Williams,
465
F.3d
at
1282-83).
The
Court
reviews
RICO
statutory standing under Rule 12(b)(6). Adell, 785 F. Supp.
2d at 1237.
This statutory standing requirement exists so that “RICO
is not expanded to provide a ‘federal cause of action and
treble damages to every tort plaintiff.’” Steele v. Hosp.
Corp.
of
Am.,
36
F.3d
69,
70
(9th
Cir.
1994)(quotation
omitted). Thus, “[t]he words ‘business or property’ are, in
part, words of limitation.” Grogan v. Platt, 835 F.2d 844,
846 (11th Cir. 1988). “Courts have excluded from the phrase’s
meaning ‘[i]njury to mere expectancy interests or to an
“intangible property interest.”’” Adell, 785 F. Supp. 2d at
1237 (quoting Price v. Pinnacle Brands, Inc., 138 F.3d 602,
607
(5th
Cir.
1998)).
“To
demonstrate
13
injury
for
RICO
purposes, plaintiffs must show proof of concrete financial
loss.” Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 108687 (9th Cir. 2002); see also Regions Bank v. J.R. Oil Co.,
387 F.3d 721, 728 (8th Cir. 2004)(stating that “a showing of
injury requires proof of concrete financial loss, and not
mere
injury
to
a
valuable
intangible
property
interest”(quoting Steele, 36 F.3d at 70)).
Here, Truth acknowledges that its damages are minimal
and does not allege that it purchased any internet services
from any Defendant as a result of the advertisements. Thus,
the Fourth Amended Complaint does not allege a concrete
financial loss. Rather, Truth states that the harm it suffered
was the “fail[ure] to realize the benefit, from either Agent
Defendant, of obtaining the expected Advertised Bargains.”
(Doc.
#
70
at
¶
64).
Such
insufficient
to
establish
RICO
an
expectancy
standing.
interest
See,
e.g.,
is
Gil
Ramirez Grp., L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d
400,
409–10
(5th
Cir.
2015)(“[D]amage
to
a
plaintiff’s
subjective expectations cannot form the basis of a RICO
claim.”); Keeton v. Gynecare Worldwide, No. 15-20442-CIV,
2016 WL 2753866, at *4 (S.D. Fla. Jan. 29, 2016), report and
recommendation adopted, No. 15-20442-CIV, 2016 WL 2753667
(S.D. Fla. Mar. 31, 2016)(dismissing pro se RICO claim with
14
prejudice because the plaintiff “cannot, consistent with the
requirements of Federal Rule of Civil Procedure 11, allege
any facts that would convert the loss of her expectancy
interest . . . into a RICO injury”). Thus, Truth has not
established its statutory standing to bring a civil RICO
claim.
C.
Other Federal Statutory Claims
Counts 13-17 of the Fourth Amended Complaint assert
claims against the sales agent Defendants, Godish.com and
Infinity, under the Federal Trade Commission Act, 15 U.S.C.
§ 45(a)(1), and 18 U.S.C. §§ 1341 and 1343. (Doc. # 70 at 2527). However, there are no private rights of action under
these statutes.
Only the Federal Trade Commission has the authority to
enforce
the
Federal
Trade
Commission
Act’s
provisions
regarding unfair or deceptive practices. See Gomez v. Bank of
Am. Corp., No. 8:15-cv-324-T-33EAJ, 2015 WL 667664, at *1
(M.D. Fla. Feb. 17, 2015)(dismissing 15 U.S.C. § 45(a) claim
because “[t]he Federal Trade Commission Act does not create
a private right of action”)(citing Fulton v. Hecht, 580 F.2d
1243, 1248 n.2 (5th Cir. 1978)); Sefa v. Kentucky, 510 F.
App’x 435, 438 (6th Cir. 2013)(holding that plaintiff “cannot
assert a claim under [a provision of the Act], which applies
15
to
civil
actions
by
the
Federal
Trade
Commission
for
violations of rules and cease and desist orders respecting
unfair or deceptive acts or practices”).
Truth cannot bring civil claims for mail and wire fraud
pursuant to 18 U.S.C. §§ 1341 and 1343, which are criminal
statutes that do not create private rights of action. Austin
v.
Glob.
Connection,
303
F.
App’x
750,
752
(11th
Cir.
2008)(“The federal wire and mail fraud statutes are criminal
statutes which do not provide for civil remedies.”).
Additionally,
the
Fourth
Amended
Complaint
includes
Counts 8-99 against the internet service provider Defendants,
asserting negligence and negligence per se claims under both
18 U.S.C. §§ 2 and 3, and Fla. Stat. §§ 777.011 and 777.03.
To the extent that each count is based on federal law, Truth
cannot state a claim because the federal statutes are criminal
aiding and abetting and accessory after the fact statutes
that do not provide a private cause of action. See Cent. Bank
of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511
U.S. 164, 190-91 (1994)(finding no civil cause of action for
violations of federal securities law exists under the aiding
and abetting statute, § 2, and noting that the Court has been
“quite reluctant to infer a private right of action from a
criminal prohibition alone” and has refused to “infer a
16
private right of action from ‘a bare criminal statute.’”);
Hilow v. Rome City Sch. Dist., No. 6:14-CV-288, 2015 WL
893050, at *8 (N.D.N.Y. Mar. 2, 2015), appeal dismissed (May
18,
2015)(dismissing
with
prejudice
civil
claims
brought
under 18 U.S.C. § 3, regarding accessory after the fact
liability, and 18 U.S.C. § 2, regarding liability for aiding
and abetting because neither “of those statutes contain a
private right of action”).
Thus, Truth has failed to establish the Court’s subject
matter jurisdiction over these claims. See Gomez, 2015 WL
667664, at *2 (“The Court thus determines that the Complaint,
as drafted, does not state a basis for the Court’s exercise
of jurisdiction over this matter.”).
IV.
Conclusion
As Truth lacks Article III standing, this Court lacks
subject matter jurisdiction over the case. “Because this case
was initially removed from state court, the proper remedy is
remand to state court rather than the dismissal requested by
[Defendants].” Wright Ins. Agency, 2016 WL 1546536, at *5
(citing McGee v. Solicitor Gen. of Richmond Cty., 727 F.3d
1322, 1325-26 (11th Cir. 2013)). The state court may address
whether the Fourth Amended Complaint states claims that are
17
justiciable under Florida law. Esteves v. SunTrust Banks,
Inc., 615 F. App’x 632, 637 (11th Cir. 2015).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants’ Motions to Dismiss (Doc. ## 86, 88, 89, 90,
91, 92) are GRANTED as set forth herein;
(2)
Due to a lack of subject matter jurisdiction, this action
is REMANDED to the Sixth Judicial Circuit, in and for
Pasco County, Florida;
(3)
Once remand is effected, the Clerk is directed to CLOSE
THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this
14th day of December, 2016.
18
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