Rousset v. AT&T Inc et al

Filing 59

ORDER DENYING Plaintiff's 49 Supplement to 'Amended Complaint' Plaintiff's Fouth (sic) Amended Complaint; ORDER for the clerk to file the Plaintiff's 50 'Amended Complaint' Plaintiff's Fouth (sic) Amended C omplaint; ORDER DISMISSING as MOOT Plaintiff's 54 Motion to Reinstate Yahoo as a Defendant; ORDER DISMISSING without Prejudice Plantiff's 55 Motion for Sanctions against Yahoo; DISMISSING without Prejudice Plaintiff's 58 Motion for the Procedure to Obtain the Home Address of CEO Marissa Mayer. Signed by Judge Mark Lane. (klw) (Clerk notes Plaintiff's Fouth (sic) Amended Complaint has already been docketed as part of the record as entry 50 .

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
LOUIS ROUSSET,
Plaintiff,
V.
AT&T INC. AND RANDALL
STEPHENSON, YAHOO, INC., AND
MARISSA MAYER
Defendants,

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A-14-CV-0843-LY-ML

ORDER ON PENDING MOTIONS
Before the court are Plaintiff’s “Supplement to ‘Amended Complaint’ Plaintiff’s Fourth
Amendment Complaint” [#49] and “’Amended Complaint’ Plaintiff’s Fourth Amendment
Complaint” [#50]. These substantively identical documents are apparently designed to reinstate
defendants and causes that Plaintiff terminated from this action in his third amended complaint
[#43]. Related motions before the court include Plaintiff’s Motion to Reinstate Yahoo as a
Defendant [#54] and Yahoo’s Response thereto [#56], Plaintiff’s Motion for Sanctions Against
Yahoo [#55] and Yahoo’s Response thereto [#57], and Plaintiff’s “Motion for the Procedure to
Obtain the Home Address of CEO Marissa Mayer or Any CEO Persuant [sic] to Federal Rule
4(e)” [58].
All nondispositive motions in this case were referred by United States District Judge Lee
Yeakel to the undersigned for resolution pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of
Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District
Court for the Western District of Texas. After reviewing the pleadings, the relevant case law, as
well as the entire case file, the undersigned issues the following Order.

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I. Procedural History
Plaintiff Louis Roussett (“Roussett”) filed his original complaint, styled “Plaintiff’s
Fourth Amendment Complaint,” on September 4, 2014 [#1], naming as Defendants AT&T Inc.
and its C.E.O., Randall Stephenson (collectively, the “AT&T Defendants), and Yahoo, Inc., and
its C.E.O., Marissa Mayer. Plaintiff asserted various causes of action concerning “plaintiffs [sic]
recent notification by the media, that the National Security Agency and or the Federal Bureau of
Investigations through an NSL letter is demanding of the plaintiffs [sic] internet and phone
company providers AT&T/Yahoo for personal e-mail data, without a probable cause hearing or a
warrant from a Federal Judge.” Compl. [#4] at ¶ 5. The AT&T Defendants and Yahoo filed
motions to dismiss on November 12, 2014 [#3, #7]. Mayer did not join in Yahoo’s filing. On
December 4, 2014, Plaintiff moved for entry of default against Mayer. [#20].
On December 9, 2014, Plaintiff filed a document styled “Plaintiff’s Supplement to
Complaint,” [#17]. The court ordered clarification and specifically advised Plaintiff regarding
the difference between a “supplement” to a complaint and an “amended” complaint. Order of
December 9, 2014 [#22].

In particular, Plaintiff was advised that a supplement is only

appropriate to bring up new matters that have developed since the filing, while an amendment
replaces all allegations in the original complaint. Id. Plaintiff was granted leave to file either a
supplement or an amendment, and was specifically warned “‘[s]hould Plaintiff choose to submit
an amended complaint, he is reminded the amended complaint would completely replace his
original pleading and should therefore include all parties he is naming as defendants, all factual
allegations he is asserting against the defendants and all legal claims for relief he is asserting
against the defendants.” Id.

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On December 16, 2014, Plaintiff filed his second amended complaint (styled “Amended
Complaint: Plaintiff’s Fourth Amendment Complaint”) [#25], with leave of court, see [#22],
against the AT&T Defendants and Yahoo, Inc. In this second amended complaint, Plaintiff
clarified that he believes his standing to sue is based on a PBS documentary in which an AT&T
employee, Mark Klein, “categorically state[d] that AT&T was providing e-mail data to the NSA
and itself for monetary gain . . ..” Id. at ¶ 14. The Motions to Dismiss filed as to the original
complaint were dismissed as moot, without prejudice to refiling. Order of Dec. 17, 2014 [#26].
On December 22, 2012, Mayer moved through counsel to set aside the clerk’s entry of
default for lack of proper service. [#30]. The court granted the motion and struck the entry of
default on January 7, 2015 [#37]. To date, Mayer has not been served by Plaintiff.
On January 16, 2015, the AT&T Defendants and Yahoo filed Motions to Dismiss [#38,
39] as to Plaintiff’s second amended complaint.

Plaintiff did not timely respond to either

motion. See AT&T Defendants’ Reply [#41] and Yahoo’s Reply [#40].
On February 11, 2015, Plaintiff filed an untimely response [#42] to the AT&T
Defendants’ Motion to Dismiss and also filed his third amended complaint, styled “Amended
Complaint:

Plaintiff’s Fourth Amendment Complaint” [#43], naming only the AT&T

Defendants in the captions and as parties. See id. at ¶¶ 1-5. Plaintiff’s factual allegations
remained largely unchanged from prior pleadings, asserting various privacy violations by
“AT&T/Yahoo.” Compare generally Second Am. Compl. [#25] with Third Am. Compl. [#43].
On February 18, 2015, Plaintiff filed an untimely response [#46] to Yahoo’s Motion to
Dismiss and also filed a Motion for Entry of Default against Yahoo [#45]. The court, in denying
the Motion for Entry of Default, acknowledged the third amended complaint [#43] as the live

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pleading, 1 and noted that the amendment terminated Yahoo as a party in this case. Order of
February 24, 2015 [#48].
Plaintiff responded by filing his Supplement to Fourth Amendment Complaint [#49],
Fourth Amended Complaint [#50], Response to Yahoo’s Motion to Dismiss [#51] and Motion to
Reinstate Yahoo [#54], all in an attempt to resurrect his abandoned claims against Yahoo and its
C.E.O. Plaintiff has additionally requested sanctions against Yahoo [#55] and filed a Motion for
the Procedure to Obtain the Home Address of CEO Marissa Mayer [#58], both motions arising
out of his contention that he has attempted to serve Marissa Mayer in her individual capacity in
this suit and been improperly blocked from doing so. Yahoo has responded in opposition to the
Motion to Reinstate [#56] and the Motion for Sanctions [#57].
II. Analysis
A. Amendment of Pleadings
Plaintiff terminated Defendants Yahoo, Inc. and Marissa Mayer from this case in his third
amended complaint. Prior to filing this third amended complaint, Plaintiff was specifically
warned of the consequences of omitting parties and causes of action from an amended pleading
in the undersigned’s Order of December 9, 2014 [#22]: “Should Plaintiff choose to submit an
amended complaint, he is reminded the amended complaint would completely replace his
original pleading and should therefore include all parties he is naming as defendants, all factual
allegations he is asserting against the defendants, and all legal claims for relief he is asserting
against the defendants.” Though Plaintiff is afforded leniency because of his pro se status, his
filing decision in the face of direct instruction from the court cannot be considered inadvertent or

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As this third amended complaint was filed more than 21 days after the original complaint and more than 21
days after the defendants’ Rule 12 motions to dismiss, leave of court was required. FED. R. CIV. P. 15(a)(2).

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unknowing.

See Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991) (“The right of self-

representation does not exempt a party from compliance with relevant rules of procedural and
substantive law.”) Therefore, Plaintiff’s third amended complaint [#43] is properly viewed as
effectively terminating Defendants Yahoo and Mayer from the action. See Order of February 24,
2015 [#48].
Nevertheless, Plaintiff’s termination of the Defendants did not operate as a dismissal with
prejudice, and under Rule 15(a), courts freely grant leave to amend when justice so requires.
Merritt Hawkins & Assocs., LLC v. Gresham, 300 F.R.D. 311, 313 (N.D. Tex. 2014) (citing FED.
R. CIV. P. 15(a)(2); Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962)).
Plaintiff has attempted to amend his complaint by filing both a proposed Supplement
[#49] and a proposed Amendment [#50]. Plaintiff’s “Supplement to ‘Amended Complaint’
Plaintiff’s Fourth Amendment Complaint” [#49] is, to the court’s eye, substantively identical to
Document [#50], “’Amended Complaint’ Plaintiff’s Fourth Amendment Complaint” [#50]. As
Plaintiff has been instructed before, a supplement is appropriate to address new factual
allegations that have occurred since the original complaint was filed. FED. R. CIV. P. 15(d). No
new factual allegations are included in the proposed “Supplement,” which is to all intents and
purposes the same document as the proposed amended complaint filed as document [#50].
Therefore, the Court DENIES leave to supplement the complaint with Document [#49].
The proposed amended complaint, [#50], however, is not required to allege “new”
material and is instead examined under the lenient pleading standard of Rule 15(a)(2) (“The
court should freely give leave when justice so requires.”). Plaintiff’s proposed amendment does
not appear to have been brought in bad faith or for purposes of harassment. Instead of resting
solely on the allegations contained in a PBS Frontline special, the proposed fourth amended
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complaint asserts that Yahoo and AT&T are violating various provisions of the Stored
Communications Act and other federal statutes by storing and analyzing communications beyond
any fair reading of the scope of the consent provisions of Plaintiff’s service contracts with each
Defendant. See generally [#50]. Plaintiff further alleges that Yahoo and AT&T’s participation
in government surveillance of internet and phone communications renders them quasi-state
actors for purposes of Plaintiff’s constitutional claims based on violations of the Fourth
Amendment. Id. While still far from a model of clarity, the proposed fourth amended complaint
appears to be a cogent attempt to marshall Plaintiff’s generalized fears of surveillance into a
plain statement of a specific dispute between Plaintiff and Defendants, concerning a
particularized harm that is potentially redressable under federal law.
Therefore, the court will GRANT leave to file Plaintiff’s fourth and final amended
complaint. Document [#50], Styled “Plaintiff’s Fourth Amendment Complaint,” is now the
operative pleading in this matter and all discovery and dispositive motions should be directed to
the allegations therein. Document [#54], the Motion to Reinstate Yahoo as a Defendant, is
dismissed as moot, as the amended pleading names both Yahoo and Mayer as Defendants and
therefore joins them as parties in the case.
PLAINTIFF IS SPECIFICALLY AND PERSONALLY WARNED THAT NO
FURTHER AMENDMENTS WILL BE ALLOWED WITHOUT PRIOR LEAVE OF COURT
UPON A SHOWING OF GOOD CAUSE. Plaintiff’s pro se status does not entitle him to
exhaust the resources of Defendants and the court through serial amendments that delay
adjudication of the merits of this case. Hulsey, 929 F.2d at 171.

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B. Service on Mayer
Plaintiff’s Motion for Sanctions against Yahoo [#55] and Motion for the Procedure to
Obtain the Home Address of CEO Marissa Mayer [#58] stem from his contention that he has
attempted to serve Mayer through her place of business, it is clear that Mayer has actual notice of
the suit, and Plaintiff believes Mayer and Yahoo are using procedural gamesmanship to prevent
service of process.
Pursuant to Federal Rule of Civil Procedure 4(d), a defendant has “a duty to avoid
unnecessary expenses of serving the summons.” A plaintiff may request the waiver of service of
the summons in writing through an “agent authorized by appointment” to receive service of
process. Id. at 4(d)(1)(A)(ii). It is not uncommon for a plaintiff to request that counsel of record
for a prospective defendant obtain authorization to accept service under this rule, thus obviating
the need for costly and difficult personal service.

The undersigned notes that Mayer has

appeared through counsel, Robert Huff, in order to contest proper service and seek to vacate the
clerk’s entry of default in this case. See [#30].
As there is no evidence in the record that Plaintiff has yet conferred with counsel, Huff,
regarding a request for waiver of service of process pursuant to Rule 4(d), the motions for
sanctions and for the home address of Mayer will be dismissed without prejudice to re-filing, if
necessary, after reasonable attempts to negotiate under Rule 4(d) have taken place.

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II. Conclusion
Accordingly,
IT IS ORDERED that leave to file Plaintiff’s “Supplement to ‘Amended Complaint’
Plaintiff’s Fourth Amendment Complaint” [#49] is DENIED.

The document need not be

stricken from the record, but it shall have no legal effect as it merely duplicates the amended
complaint for which leave to file is granted below.
IT IS FURTHER ORDERED that Plaintiff’s “’Amended Complaint’ Plaintiff’s Fourth
Amendment Complaint” [#50] shall be docketed as Plaintiff’s Fourth Amended Complaint and
shall be the operative pleading in this matter going forward.
IT IS FURTHER ORDERED that Plaintiff shall file no more amendments,
supplements, or other alterations or additions to his complaint without leave of court for good
cause shown.
IT IS FURTHER ORDERED that Document [#54], Plaintiff’s Motion to Reinstate
Yahoo as a Defendant, is DISMISSED AS MOOT.
IT IS FINALLY ORDERED that Plaintiff’s Motion for Sanctions against Yahoo [#55]
and Motion for the Procedure to Obtain the Home Address of CEO Marissa Mayer [#58] are
DISMISSED WITHOUT PREJUDICE to re-filing after reasonable conference between Plaintiff
and counsel for Mayer, Robert Huff, concerning waiver of service under Federal Rule of Civil
Procedure 4(d).
SIGNED April 22, 2015
_______________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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