Williams v. Anthem Blue Cross & Blue Shield

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECFNo. 2] is GRANTED. IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a civil complaint form. IT IS FURTHER ORDERED that plaintiff must file an amended complaint no later than twenty-one (21) days of the date of this Order. IT IS FURTHER ORDERED that if plaintiff does not comply with this Order, the Court will dismiss this action without further proceedings. 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Ruth Williams ( Response to Court due by 5/2/2017.) (Order & forms mailed to plaintiff). Signed by District Judge John A. Ross on 4/11/17. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RUTH WILLIAMS,
Plaintiff,
v.
ANTHEM BLUE CROSS & BLUE
SHIELD,
Defendant.

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No. 4:17-CV-1269 JAR

MEMORANDUM AND ORDER
Plaintiff seeks leave to proceed in forma pauperis in this civil action under the Telephone
Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). The motion is granted. Additionally, the
Court will require plaintiff to submit an amended complaint.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “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. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.

When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
Discussion
Liberally construed, the complaint alleges that defendant violated the TCPA by calling
her telephone using an automated phone system. Plaintiff says she suffered as a result because
she has post-traumatic stress disorder.
The Court cannot order the Clerk to serve process at this time. First, there are no
allegations showing that venue lies in this Court. Plaintiff is a resident of Florida, and she says
she does not know where defendant can be located. She appears to be attempting to join a class
action case that was closed in June 2015, Lees v. Anthem Insurance Companies, Inc., No. 4:13CV-1411 SNLJ (E.D. Mo.). She may not do so, however, because it is no longer pending. There
are no allegations showing that defendant can be located here or that a substantial portion of the
events that led to this cause occurred within this District. Therefore, she must show cause why
this action should not be dismissed for lack of proper venue. See 28 U.S.C. § 1406(a).
Second, the complaint is too vague to provide notice to defendant with regard to the
substance of plaintiff’s claims. She has not stated any facts about the telephone calls, such as
when they occurred or whether they were for marketing purposes. She has also failed to allege
whether she had an established business relationship with defendant when it placed the calls.
Because she is pro se, the Court will allow her to file an amended complaint.
Plaintiff is warned that the filing of an amended complaint replaces the original
complaint, and so she must include each and every one of his claims in the amended complaint.
E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th
Cir. 2005). Any claims from the original complaint that are not included in the amended

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complaint will be considered abandoned. Id. Plaintiff must allege facts showing that venue is
proper in this District.

She must also allege sufficient facts about phone calls to provide

defendant notice of the substance of her claims.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a civil
complaint form.
IT IS FURTHER ORDERED that plaintiff must file an amended complaint no later
than twenty-one (21) days of the date of this Order.
IT IS FURTHER ORDERED that if plaintiff does not comply with this Order, the
Court will dismiss this action without further proceedings.

Dated this 11th day of April, 2017.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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