Lubin et al v. TracFone Wireless Inc

Filing 13

ORDER granting 10 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 3/11/2013. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARCSON LUBIN and ERZULIE LUBIN,
Plaintiffs,
v.
TRACFONE WIRELESS, INC.,
Defendant.

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Case No. CIV-12-1379-D

ORDER
This matter comes before the Court upon Defendant TracFone Wireless, Inc.’s Motion to
Dismiss [Doc. No. 10], filed pursuant to Fed. R. Civ. P. 12(b)(1), (3) and (6). The record reflects
no timely response by Plaintiffs.1 Upon consideration, the Court finds the case should be dismissed
for lack of federal jurisdiction.
Plaintiffs, who appear pro se, are proceeding under the Amended Complaint [Doc. No. 5],
which was filed in response to the Order of December 27, 2012, directing them to satisfy the
pleading requirements of Fed. R. Civ. P. 8(a). Defendant contends the Amended Complaint does
not comply with the December 27 Order, and should be dismissed.
Upon examination of the Amended Complaint, the Court agrees. Plaintiffs were expressly
directed to Rule 8(a)(1) and the requirement of a basis for federal subject matter jurisdiction. See
Order 12/27/12 [Doc. No. 4] at 2. Because Plaintiffs assert common law claims, the only possible
basis of jurisdiction is 28 U.S.C. § 1332(a), which requires both diversity of citizenship and a
sufficient amount in controversy. The Amended Complaint contains no factual allegations regarding

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After the deadline to respond, Plaintiffs filed a motion requesting permission to amend their
complaint and an extension of time. The filing is deficient because it is unsigned, and fails to comply with
LCvR7.1(h) and LCvR7.1(l). It also provides no basis to conclude that granting the requested relief would
rectify the deficiency in their pleading, as set forth herein.

the citizenship of Defendant, as determined by 28 U.S.C. § 1332(c)(1). Further, although Plaintiffs
provide a residence address, the Amended Complaint fails to allege their citizenship; merely alleging
a place of residence is not sufficient. See Whitelock v. Leatherman, 460 F.2d 507, 514-15 (10th Cir.
1972). Finally, apart from an apparently frivolous demand for one million dollars, the Amended
Complaint provides no basis to believe that the matter in controversy, as to each individual plaintiff,
exceeds the statutory amount. See Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893, 897 (10th
Cir. 2006) (noting “well established principle that each plaintiff . . . must individually satisfy the
amount in controversy requirement”).
Therefore, because the Amended Complaint does not plead subject matter jurisdiction, and
because Plaintiffs have previously received an opportunity to cure this deficiency in their pleading,
the Court finds that this action should be dismissed.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss [Doc. No. 10] is
GRANTED, as set forth herein. A separate judgment shall be entered.
IT IS SO ORDERED this 11th day of March, 2013.

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