Ebanks v. Samsung Telecommunication America, LLP et al

Filing 34

OPINION AND ORDER granting 17 Motion to Dismiss for Failure to State a Claim; granting 17 Motion to Dismiss; granting 19 Motion to Dismiss for Failure to State a Claim; granting 19 Motion for More Definite Statement; granting 19 Motion to Strike. Signed by Judge Kenneth A. Marra on 2/19/2013. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
NO. 12-80430-CIV-MARRA
VERONA EBANKS,
Plaintiff,
vs.
SAMSUNG TELECOMMUNICATIONS
AMERICA, LLC and VERIZON
WIRELESS,
Defendants.
______________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant Samsung Telecommunications America,
LLC’s Motion to Dismiss for Insufficient Service of Process or, Alternatively, to Dismiss for Failure
to State a Cause (DE 17); and Defendant Cellco Partnership d/b/a Verizon Wireless’ Motion to
Dismiss “Plaintiff, Verona Ebanks’ Re-filing of Complaint Against the Defendant,” or in the
Alternative, Motion for More Definite Statement and to Strike (DE 19). Plaintiff responded to both
motions. (DE 30; DE 31). Defendants replied. (DE 32; DE 33). The Court has reviewed the briefs
and the record, and is otherwise advised in the premises.
I. Background
Plaintiff Verona Ebanks filed a pro se complaint on April 24, 2012, seeking relief for injuries
she allegedly suffered from a defective cell phone. (DE 1).1 Defendant Samsung and Defendant
Verizon separately moved to dismiss Plaintiff’s complaint: Samsung on grounds of insufficient

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Plaintiff attempted to serve Defendant Samsung by serving Samsung’s counsel at its W hite Plains, New York
offices. (DE 4).

service of process, failure to state a claim, and preemption (DE 8); Verizon on grounds of lack of
subject matter jurisdiction and failure to state a claim (DE 10). After the Court ordered Plaintiff to
respond to Defendants’ motions, Plaintiff successfully sought leave to amend her complaint. (DE
13). Rather than filing one amended complaint, however, Plaintiff filed two. (DE 14; DE 15).2
Defendants moved to dismiss Plaintiff’s amended complaints on the same grounds as before. (DE
17; DE 19).
After the Court again ordered Plaintiff to respond to Defendants’ motions (DE 22; DE 23),
Plaintiff successfully sought leave for an extension of time to respond to Defendants’ motions and
to seek legal counsel. (DE 24; DE 25; DE 28). Plaintiff acquired counsel, and her counsel entered
an appearance on October 19, 2012, (DE 29). Plaintiff responded to Defendants’ motions that day
(DE 30; DE 31). Defendants timely replied. (DE 32; DE 33). For the reasons that follow,
Defendants’ motions to dismiss are granted.
II. Legal Standard
Rule 8(a) of the Federal Rules of Civil Procedure requires “a short and plain statement of the
claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground upon
which it rests.” Fed. R. Civ. P. 8(a). The Supreme Court has held that “[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

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Plaintiff’s amended complaints appear to be directed at each defendant individually, i.e., one complaint is
directed at Defendant Samsung (DE 15), the other complaint is directed at Defendant Verizon (DE 14).

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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).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quotations and citations omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives
a motion to dismiss.” Id. at 679.
III. Analysis
Defendant Samsung moves to dismiss Plaintiff’s amended complaint for insufficient service
of process and failure to state a claim. Plaintiff responds by arguing that she properly effected service
and that her amended complaints, which were filed before Plaintiff retained counsel, sufficiently
state a cause of action. Alternatively, Plaintiff seeks leave to amend. Because Samsung does not
oppose Plaintiff’s request for leave to amend, the Court only addresses whether Plaintiff properly
effected service.
Federal Rule of Civil Procedure 4(h) states, in pertinent part:
Unless federal law provides otherwise or the defendant’s waiver has been filed, a
domestic or foreign corporation . . . that is subject to suit under a common name[]
must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer,
a managing or general agent, or any other agent authorized by appointment
or by law to receive service of process and—if the agent is one authorized by
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statute and the statute so requires—by also mailing a copy of each to the
defendant . . . .
Plaintiff does not allege that she effected service in the manner prescribed by Rule 4(e)(1)
for serving an individual.3 Rather, the extent of Plaintiff’s argument regarding service is that
Samsung’s counsel sent her a letter that led Plaintiff to “reasonably believe[] that Samsung’s counsel
was authorized to accept service of process on behalf of Samsung.” (DE 30 at 2). In assessing
properly effected service, however, Plaintiff’s “reasonable belief” is irrelevant. See Wilson v. Arizona
Classic Auto, 09-80344-CIV, 2009 WL 3762983, at *1–*3 (S.D. Fla. Nov. 10, 2009).
Defendant Samsung’s motion states that “[a]s a member in good standing with the Florida
Bar and this Court, the undersigned counsel hereby affirms by signature below and under the penalty
of perjury that [the law firm Plaintiff served] is not the registered agent of [Samsung], nor is any
lawyer within [the firm] an officer of the Defendant or otherwise authorized to accept services of
process on [Samsung’s] behalf.” (DE 17 at 2). Thus, the Court finds that Plaintiff’s service must be
quashed. Plaintiff may attempt to re-serve Defendant Samsung within 90 days of the date of entry
of this Order.
Defendant Verizon moves to dismiss Plaintiff’s claim for, among other things, lack of subject
matter jurisdiction. Plaintiff responds by suggesting that the Court has jurisdiction under 28. U.S.C.
§ 1332 because the parties are diverse and the amount in controversy exceeds $75,000.00. Plaintiff
may be correct, but the Court is unable to make that determination based on the face of Plaintiff’s
amended complaints.

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Rule 4(e)(1) provides that “[u]nless federal law provides otherwise, an individual . . . may be served in a
judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service is made . . . .” The relevant state law
here is Florida Statute § 48.081.

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IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant Cellco Partnership
d/b/a Verizon Wireless’ Motion to Dismiss “Plaintiff, Verona Ebanks’ Re-filing of Complaint
Against the Defendant,” or in the Alternative, Motion for More Definite Statement and to Strike (DE
19) is GRANTED for lack of subject matter jurisdiction. Plaintiff’s Amended Complaint (DE 14)
is DISMISSED without prejudice. Defendant Samsung Telecommunications America, LLC’s
Motion to Dismiss for Insufficient Service of Process or, Alternatively, to Dismiss for Failure to
State a Cause (DE 17) is also GRANTED for insufficient service of process. Plaintiff’s Amended
Complaint (DE 15) is DISMISSED without prejudice. Plaintiff shall file a single operative
amended complaint that sufficiently sets forth the grounds for this Court’s jurisdiction and complies
with the pleading requirements of Federal Rules of Civil Procedure 8 and 10. Plaintiff may attempt
to re-serve Defendant Samsung within 90 days of the date of entry of this Order. Defendants may
renew their motions to dismiss once Plaintiff files an amended complaint.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,
this 19th day of February, 2013.
_______________________________________
KENNETH A. MARRA
United States District Judge

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