Braun v. Verizon Wireless
Filing
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ORDER DISMISSING CASE. Braun's Motion to Compel 10 is DENIED AS MOOT. Defendant's Motion to Dismiss 4 is GRANTED. Braun's Request for Emergency Award of Summary Judgment 15 is DENIED. Signed by Magistrate Carolyn S Ostby on 10/7/2013. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
DAVID STEVEN BRAUN,
CV 13-54-BU-CSO
Plaintiff,
ORDER
vs.
VERIZON WIRELESS,
Defendant.
I.
INTRODUCTION
Plaintiff David Braun has filed a complaint against Defendant
Verizon Wireless. The following motions are pending:
(1)
Defendant Verizon’s Motion to Dismiss for Lack of
Jurisdiction DKT 4;
(2)
Braun’s Motion to Compel DKT 10; and
(3)
Braun’s Request for Award of the Requested shares as a
Summary Judgment DKT 15.
Having considered the parties’ arguments and submissions, the
Court finds that Verizon’s Motion to Dismiss is dispositive. Braun has
failed to set forth an intelligible claim for relief. Verizon’s Motion to
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Dismiss will be granted, Braun’s Motion for Summary Judgment will
be denied, and this matter will be dismissed with prejudice.1 Braun’s
Motion to Compel will be denied as moot.
II.
MOTION TO DISMISS
A. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion for failure to state a claim, a
complaint must meet the requirements of Federal Rule of Civil
Procedure 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of
the claim showing that the pleader is entitled to relief,” so that the
defendant has “fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
The pleading standard in Rule 8 “demands more than an
unadorned, the-defendant unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A
complaint that offers nothing more than naked assertions will not
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Pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and upon written
consent of the parties, this matter has been assigned to this Court to
conduct all further proceedings, enter judgment, and conduct all posttrial proceedings. DKT 9.
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suffice. Id. To survive a motion to dismiss, a complaint must contain
sufficient factual matter, which, if accepted as true, states “a claim to
relief that is plausible on its face.” Id. A complaint is subject to
dismissal pursuant to Rule 12(b)(6) if it does not “contain sufficient
allegations of underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011).
Braun’s Complaint is digressive and his claims are not apparent.
He states, for example, that his phone has been used to manipulate
people around him, especially women, and thereby “keep an American
citizen single.” DKT 1 at 2-3. Verizon could not possibly be expected to
defend itself effectively from this Complaint. Braun’s rambling
statements fail to set forth any possible cause of action against Verizon.
His concerns that he has been subjected to electronic surveillance
through his cell phone do not rise above the speculative level. In
addition, Braun seems to concede that Verizon is not responsible for the
alleged electronic surveillance. None of Braun’s statements identify or
establish an entitlement to relief from Verizon. Braun’s allegations are
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unintelligible, he does not set forth a recognizable cause of action or
claim for relief, and the Complaint will be dismissed.
2. Lack of Subject Matter Jurisdiction
In the federal courts, subject matter jurisdiction may arise from
either “federal question jurisdiction” or “diversity jurisdiction.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); see also 28 U.S.C.
§§ 1331–32. To invoke diversity jurisdiction, the complaint must allege
that “the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between ... citizens of different
States ... [or] citizens of a State and citizens or subjects of a foreign
state( )27.” 28 U.S.C. § 1332(a).
Defendant Verizon Wireless contends it is not a business entity.
Instead, its operations in Montana are carried out by Gold Creek
Cellular of Montana Limited Partnership, a Montana company.
capable of being sued. Braun is also a resident of Montana, therefore
there is no diversity jurisdiction.
To invoke federal question jurisdiction, the complaint must allege
that the “ ‘action[ ] aris[es] under the Constitution, laws, or treaties of
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the United States.” 28 U.S.C. § 1331. As set forth above, the Court is
unable to identify a federal claim in Braun’s Complaint. “[T]he federal
courts are without power to entertain claims otherwise within their
jurisdiction if they are ‘so attenuated and unsubstantial as to be
absolutely devoid of merit,’ ‘wholly insubstantial,’ ‘obviously frivolous,’
‘plainly unsubstantial,’ or ‘no longer open to discussion.’ “ Hagans v.
Lavine, 415 U.S. 528, 536–37 (1974) (internal citations omitted).
“Dismissal for lack of subject-matter jurisdiction because of the
inadequacy of the federal claim is proper only when the claim is ‘so
insubstantial, implausible, foreclosed by prior decisions of this Court, or
otherwise completely devoid of merit as not to involve a federal
controversy.’ “ Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89
(1998) (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414
U.S. 661, 666 (1974).
Braun bears the burden of establishing subject matter
jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377
(1994). Yet, he failed to make any meaningful objection to the motion
to dismiss. The Complaint is unintelligible and cannot establish
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subject matter jurisdiction on its own. As Braun failed to address
Verizon’s subject matter jurisdiction argument, he has not met his
burden. The Complaint will also be dismissed for lack of subject matter
jurisdiction.
Based on the foregoing, IT IS ORDERED that:
1. Braun’s Motion to Compel (DKT 10) is DENIED AS MOOT.
2. Defendant’s Motion to Dismiss (DKT 4) is GRANTED
3. Braun’s Request for Emergency Award of Summary Judgment
(DKT 15) is DENIED
4. This matter is dismissed with prejudice. The Clerk of Court is
directed to enter judgment in favor of Defendant.
DATED this 7th day of October, 2013.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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