Lubin et al v. TracFone Wireless Inc

Filing 4

ORDER directing plaintiff to file an amended complaint no later than 1/14/2013. Signed by Honorable Timothy D. DeGiusti on 12/27/2012. (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
On December 12, 2012, Plaintiff Marcson Lubin filed a pro se Complaint asserting claims
of negligence and breach of contract against Defendant TracFone Wireless, Inc. Although the
Complaint also names Erzulie Lubin as a plaintiff, the Complaint is signed only by Marcson Lubin.
Thus, all references to “Plaintiff” in this Order mean Marcson Lubin.1
Plaintiff recites a series of events beginning on December 9, 2012, regarding a monthly
agreement with Defendant for cellular telephone service. Plaintiff alleges Defendant discontinued
his service before the 30-day term had expired and, when service was ultimately restored, he was
not informed that his telephone number had been changed. Plaintiff alleges the error was only
discovered after friends and family members questioned why they were not informed of the change
of numbers. Plaintiff’s efforts to regain his previous telephone number allegedly have been
unsuccessful. Plaintiff claims he has suffered embarrassment and cancellations of business meetings
and other important matters. Plaintiff seeks an order requiring Defendant to restore his telephone
number, and damages in the amount of $1,000,000.

1

Because Marcson Lubin does not claim to be a licensed attorney, he cannot appear on behalf of
another individual in a legal proceeding, and can only represent himself in federal court. See 28 U.S.C.
§ 1654 (“the parties may plead and conduct their own cases personally or by counsel”).

Upon the examination of the Complaint, the Court finds that it fails to satisfy federal
pleading requirements because it does not contain “a short and plain statement of the grounds for
the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). As explained by the Supreme Court:
Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute, which is not to be expanded by judicial
decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the
burden of establishing the contrary rests upon the party asserting jurisdiction.
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (citations omitted). Before this Court
can hear the action, Plaintiff must provide a basis for the exercise of federal subject matter
jurisdiction.
Because Plaintiff has been authorized to proceed in forma pauperis and his pleading is
deficient, the action is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). In light of his
pro se status, however, Plaintiff will be permitted to amend his pleading. Nevertheless, Plaintiff is
cautioned that a pro se litigant must “‘follow the same rules of procedure that govern other
litigants.’” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.1994)).
IT IS THEREFORE ORDERED that Plaintiff shall file an amended complaint that complies
with Rule 8(a) not later than January 14, 2013. Failure to comply with this Order will result in the
dismissal of this case without prejudice to refiling.2
IT IS SO ORDERED this 27th day of December, 2012.

2

As noted above, if Erzulie Lubin wishes to join as a plaintiff in this action, she must also sign the
amended pleading, which must adequately state her claims.
2