Terrell v. DIRECTV, LLC et al

Filing 27

OPINION AND ORDER granting 18 Motion to Dismiss for Failure to State a Claim. All pending motions are denied as moot. This case is CLOSED. Signed by Judge Kenneth A. Marra on 7/22/2013. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-81244-CIV-MARRA
RITCHIE TERRELL,
Plaintiff,
vs.
DIRECTV, LLC, a California limited liability
company, and AT&T Corp., a New York
corporation,
Defendant.
_______________________________________/
OPINION AND ORDER1
This cause is before the Court upon Defendant AT & T Corp. and DIRECTV, LLC’s
Motion to Dismiss Plaintiff’s Second Amended Complaint (DE 18). The motion is fully briefed
and ripe for review. The Court has carefully considered the motion and is otherwise fully
advised in the premises.
I. Background
On February 6, 2013, the Court dismissed Plaintiff’s Amended Complaint and granted
Plaintiff leave to amend to correct numerous pleading deficiencies. Plaintiff, who is proceeding
pro se, has now filed a Second Amended Complaint (“SAC”). (DE 17.) The SAC has several
headers labeled “first defense” and “second defense” as well as three counts. These counts are:
“bait and switch fraud” (count one); “breaching a contract” (count two) and “unauthorized
withdrawal fraud” (count three).
Defendants move to dismiss on the following grounds: (1) count one does not state a
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The Court presumes familiarity with its prior Orders.

claim for fraud or comply with Rule 9(b)’s pleading requirement; (2) the breach of contract claim
fails to identify a contract and (3) the SAC fails to allege the elements of a claim under Fair Debt
Collection Practices Act.
II. Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 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 allegations must be enough to raise a right to
relief above the speculative level.” Bell Atlantic 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, 129 S.
Ct. 1937, 1949 (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 1950. When considering a motion
to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a
plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984).

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III. Discussion
The Court begins its discussion by noting that, although the SAC is less disorganized and
shorter than the Amended Complaint, it still lacks the necessary clarity to put Defendants on
notice of the claims against them. For example, it is unclear what the purpose is for the
headings “first defense” and “second defense” and the paragraphs that follow those headings.
Likewise, the three counts do not incorporate any of the factual allegations contained in the SAC.
Finally, the counts do not identify against which Defendant they are brought.
Count one is labeled “bait and switch fraud.” Plaintiff alleges that he saw an
advertisement for a “bundle package of $49.95 monthly,” but this price was not honored. (SAC ¶
¶ 1, 10.) Simply put, these allegations are inadequate to plead fraud. At the very least, a claim
rooted in fraud must satisfy Rule 9(b) of the Federal Rules of Civil Procedure.
Rule 9(b) of the Federal Rules of Civil Procedure provides, in pertinent part, that "[i]n
alleging fraud or mistake, a party must state with particularity the circumstances constituting
fraud or mistake." Fed. R. Civ. P. 9(b). This Rule “serves an important purpose in fraud actions
by alerting defendants to the precise misconduct with which they are charged and protecting
defendants against spurious charges of immoral and fraudulent behavior." Brooks v. Blue Cross
and Blue Shield of Florida, Inc., 116 F.3d 1364, 1370-71 (11th Cir. 1997) (quoting Durham v.
Business Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988)) (internal quotation marks
omitted). This Rule is satisfied if the complaint sets forth (1) the exact statements or omissions
made; (2) the time and place of each such statement and who made the statement or omission; (3)
the substance of the statement and how it misled the plaintiff and (4) the defendants' gain due to
the alleged fraud. Id. at 1371.
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Here, the SAC fails to allege where the advertisement appeared, the full content of the
advertisement and which Defendant is responsible for the advertisement. See Jovine v. Abbott
Laboratories, Inc., 795 F. Supp. 2d 1331, 1343 n.9 (S.D. Fla. 2011) (finding the complaint did
not comply with Rule 9(b) when the fraud count failed to allege where or when the plaintiff saw
the advertisement); Haskin v. R.J. Reynolds Tobacco Co., 995 F. Supp. 1437 (M.D. Fla. 1998)
(the complaint failed to plead fraud properly when it did not differentiate between defendants).
For this reason, count one is dismissed
Equally problematic is Plaintiff’s claim for breach of contract. A breach of contract claim
requires Plaintiff to identify the terms of the contract, how Defendants breached those terms and
the damages resulting from the breach. See Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla.
Dist. Ct. App. 2006) (elements of a breach of contract claim). Here, the Court cannot discern
how the facts alleged relate to any specific contractual obligation of any particular Defendant.
Nor has Plaintiff clearly defined the relationship between himself and each Defendant, the
specific contractual provisions that relate to each Defendant and the alleged wrongful acts
committed by each Defendant. Cf. Textiles Morales, S.A. de C.V. v. Green Paradigm Partners,
LLC, No. 8:10–cv–2298–T–30EAJ, 2011 WL 2881666, at * 2 (M.D. Fla. July 19, 2011) (merely
alleging the existence of a contract and stating that it was “breached” would be inadequate under
Iqbal ). Instead, Plaintiff has merely stated that an unauthorized withdrawal occurred from his
bank account by a non-Defendant who allegedly was given that account information by
DIRECTV. These allegations, however, fail to state a claim for breach of contract. Thus, count
two is dismissed.
Finally, the claim labeled “unauthorized withdrawal fraud,” which purports to proceed
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under the Fair Debt Collection Practices Act (“FDCPA”), fares no better. In order to prevail on a
FDCPA claim, a plaintiff must prove that: (1) the plaintiff has been the object of collection
activity arising from a consumer debt; (2) the defendant is a debt collector as defined by the
FDCPA and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. Sans
v. Fernandez, 633 F. Supp. 2d 1356, 1359 (S.D. Fla. 2009); Fuller v. Becker & Poliakoff, P.A.,
192 F. Supp. 2d 1361, 1366 (M.D. Fla. 2002). The SAC does not make any allegations that
support any element of this cause of action. Instead, this count merely states that there was an
unauthorized withdrawal from Plaintiff’s bank account after services had been discontinued and
when Plaintiff owed no money. Significantly, by alleging that no money was owed, neither
Defendant can qualify as a “debt collector” under the FDCPA. See Eke v. FirstBank Florida, 779
F. Supp. 2d 1354, 1357 (S.D. Fla. 2011) (quoting Belin v. Litton Loan Servicing, LP, No.
8:06-cv-760-T-24 EAJ, 2006 WL 1992410, at *2 (M.D. Fla. Jul. 14, 2006)) (“a debt collector
does not include the consumer's creditors, a mortgage servicing company, or an assignee of a
debt, as long as the debt was not in default at the time it was assigned.” ).
When a complaint fails to state a claim for relief, a district court may grant leave to
amend subject to reasonable conditions and limitations. Garfield v. NDC Health Corp., 466 F.3d
1255, 1270-71 (11th Cir. 2006). However, even the leniency afforded pro se litigants cannot
extend ad infinitum. See Anderson v. Vanguard Car Rental USA, Inc., 304 F. App’x 830, 832
(11th Cir. 2008); GJR Inv., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
1998), overruled on other grounds, Iqbal, 129 S. Ct at 1950; Lampkin-Asam v. Volusia County
School Bd., 261 F. App’x 274, 276 (11th Cir.2008) (dismissing pro se plaintiff's second amended
complaint, with prejudice, for being a “labyrinth of claims, counts, accusations and repetition.”).
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A district court need not allow an amendment: 1) where there has been undue delay . . . or
repeated failure to cure deficiencies by amendments previously allowed; 2) where allowing
amendment would cause undue prejudice to the opposing party; or 3) where amendment would
be futile. Anderson, 304 F. App’x at 832 (quoting Bryant v. Dupree, 252 F.3d 1161, 1163 (11th
Cir. 2001)); accord Jeremiah v. Burnette, 297 F. App’x 854, 855 (11th Cir. 2008) (holding that a
district court may properly deny a pro se plaintiff leave to amend when such amendment would
be futile.) (citing Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004)).2
In the instant case, Plaintiff has had ample opportunity to amend. In total, Plaintiff has
filed three separate complaints in attempt to state a claim, and has failed to do so. It is apparent
that permitting an additional opportunity to amend would be futile. Additionally, it is
established that the Court need not allow amendment where it would cause undue prejudice to
Defendants. At this point, the Court concludes that allowing future amendment would cause
Defendants undue prejudice.
IV. Conclusion
Defendant AT & T Corp. and DIRECTV, LLC’s Motion to Dismiss Plaintiff’s Second
Amended Complaint (DE 18) is GRANTED. Plaintiff’s Second Amended Complaint is
DISMISSED WITH PREJUDICE. The clerk shall CLOSE this case and all pending motions

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Plaintiff’s response memorandum includes numerous exhibits and evidence he wishes
the Court to consider. The Court's review on a motion to dismiss is limited to the four corners of
the complaint. See Valdes v. Fisher Safety, No. 12–60034–CIV, 2012 WL 1405685, at * 2 (S.D.
Fla. Apr.23, 2012) (citing St. George v. Pinellas County, 285 F. 3d 1334, 1337 (11th Cir. 2002).
Plaintiff also filed a document labeled “Amended Complaint Plaintiff’s Response to Defendant’s
Motion to Dismiss with Prejudice” which appears to be a sur-reply. (DE 25.) Plaintiff did not
seek prior leave to file the sur-reply in violation of Local Rule 7.1(c).
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are DENIED AS MOOT. The Court shall separately issue a final judgment in favor of
Defendants.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 22nd day of July, 2013.
______________________________________
KENNETH A. MARRA
United States District Judge

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