Diggs v. Comcast, CASE NO. CV F 12-0953 LJO JLT

• Decision Date: 11 July 2012
• Docket Number: CASE NO. CV F 12-0953 LJO JLT
• Court: U.S. District Court — Eastern District of California
• Parties: WINNIE DIGGS, Plaintiff, v. COMCAST, Defendants.

WINNIE DIGGS, Plaintiff,

v.COMCAST, Defendants.

CASE NO. CV F 12-0953 LJO JLT

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: July 11, 2012

ORDER ON DEFENDANT'S F.R.Civ.P. 12

MOTION TO DISMISS

(Doc. 7.)

INTRODUCTION

Defendant Comcast IP Phone, LLC ("Comcast") seeks to dismiss as legally barred pro se plaintiff Winnie Diggs' ("Ms. Diggs'") telephone and internet services claims in that Comcast contracted with WD Research, under which Ms. Diggs does business and which cannot appear without an attorney. Comcast further seeks to dismiss Ms. Diggs' special damages claims for failure to satisfy F.R.Civ.P. 9(g) heightened pleading standards. Ms. Diggs filed no papers to oppose dismissal of her claims. This Court considered Comcast's F.R.Civ.P. 12(b)(6) motion to dismiss on the record and VACATES the July 19, 2012 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES without prejudice this action.

BACKGROUND¹

Comcast entered into a February 10, 2011 Business Class Service Order Agreement ("agreement") to provide telephone and internet services under the account name of WD Research. Ms. Diggs signed the agreement as WD Research's president. Under the agreement, Comcast was to provide telephone and internet services to a Mobile, Alabama address.

Ms. Diggs filed her complaint on March 26, 2012 in Kern County Superior Court. The complaint indicates that Ms. Diggs does business as "W.D. Grant Research" and purports to allege claims for breach of contract as well as "professional negligence, wrongful act suffered losses and civil wrong." The complaint alleges that:

1. On January 13, 2011, an "instillation [sic] engineer installed "Business phone and Internet" new number 251-278-1428 under business name WD Grant Research"; and

2. "Plaintiff could not receive calls; Plaintiff's new number automatic response to callers, 'phone is no longer in service' problems persisted for 90 days. Problems with Internet going out during business hours."

The complaint seeks recovery for "disabled future Profits From Plaintiff's Business," "anticipated profits . . . to come via US Government Departments," hospitalization for "extremely high blood pressure," "Loss of primary home," and "Lack of income and loss of savings."

DISCUSSION

F.R.Civ.P. 12(b)(6) Motion To Dismiss Standards

Comcast seeks to dismiss this action in that WD Research, a fictitious business entity, cannot appear pro se through Ms. Diggs. Comcast contends that the complaint's alleged damages "are based on pure speculation" and considered "special damages" under applicable Alabama law to require compliance with F.R.Civ.P. 9(g)'s heightened pleading standards.

"When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support theclaims." Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir. 1997). A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9^th Cir. 1990); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7^th Cir. 1995). A F.R.Civ.P. 12(b)(6) motion "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9^th Cir. 2001).

In addressing dismissal, a court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Securities Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). A court "need not assume the truth of legal conclusions cast in the form of factual allegations," U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643, n. 2 (9th Cir.1986), and must not "assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897 (1983). A court need not permit an attempt to amend if "it is clear that the complaint could not be saved by an amendment." Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).

A plaintiff is obliged "to provide the 'grounds' of his 'entitlement to relief' [which] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 554,127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, a complaint "must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7^th Cir. 1984)).

In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,1949 (2009), the U.S. Supreme Court explained:

. . . a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." . . . 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. . . . The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. (Citations omitted.)

After discussing Iqbal, the Ninth Circuit summarized: "In sum, for a complaint to survive [dismissal], the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 989 (9th Cir. 2009) (quoting Iqbal, 556 U.S. 662, 129 S.Ct. at 1949).

The U.S. Supreme Court applies a "two-prong approach" to address dismissal:

First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . . Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. 662, 129 S.Ct. at 1949-1950.

Moreover, a court may consider exhibits submitted with the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9^th Cir. 1987); Van Winkle v. Allstate Ins. Co., 290 F.Supp.2d 1158, 1162, n. 2 (C.D. Cal. 2003). A "court may consider evidence on which the complaint 'necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion." Marder v. Lopez, 450 F.3d 445, 448 (9^th Cir. 2006). A court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." United Statesv. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). Such consideration prevents "plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting reference to documents upon which their claims are based." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9^th Cir. 1998).² A "court may disregard allegations in the complaint if contradicted by facts established by exhibits attached to the complaint." Sumner Peck Ranch v. Bureau of Reclamation, 823 F.Supp. 715, 720 (E.D. Cal. 1993) (citing Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987)).

With these standards in mind, this Court turns to defendants' challenges to Ms. Digg's pursuit of the complaint.

Appearance Through Counsel

Comcast contends that WD Research cannot appear pro se through Ms. Diggs and must appear through counsel.

"Corporations and other unincorporated associations must appear in court through an attorney." In re America West Airlines, 40 F.3d 1058, 1059 (9th Cir.1994); see C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697-98 (9th Cir.1987); Church of the New Testament v. United States, 783 F.2d 771, 773-74 (9th Cir.1986); see also Eagle Assocs....