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Roberts v. UTC Fire & Security Americas Corporation, Inc.

United States District Court, D. South Carolina

January 11, 2016

Brian T. Roberts, Plaintiff,
v.
UTC Fire & Security Americas Corporation, Inc., Defendant.

          REPORT AND RECOMMENDATION

          JACQUELYN D. AUSTIN, Magistrate Judge.

         Brian T. Roberts ("Plaintiff"), proceeding pro se, brings this civil action attempting to allege a violation of a federal law. Plaintiff is a non-prisoner, and he files this action in forma pauperis under 28 U.S.C. § 1915. The Complaint is subject to summary dismissal.

         BACKGROUND

         Plaintiff alleges the following facts. Defendant has harassed Plaintiff on multiple occasions (approximately twelve) during October, November, and December of 2015 by calling his telephone number using "Robo Calling" and "Phone Spoofing." [Doc. 1.] Defendant has identified itself as "GE Home Security, " on the telephone calls, but the calls are made by a computer (not a natural born person). [ Id. ] Plaintiff placed his telephone number on the "FTC Do Not Call' list" in 2011, and he has maintained that status. [ Id. ] Therefore, he is not supposed to receive "any telemarketing calls." [ Id. ]

         The unwanted telephone calls have caused Plaintiff physical and emotional distress. [ Id. ] The telephone calls are unwanted and a nuisance. [ Id. ] Despite Plaintiff's attempts to reach a person to request placement on an internal "do not call" list, he has been unable to reach a person. [ Id. ]

         Plaintiff is domiciled in South Carolina. [ Id. ] Defendant is a corporation physically located in Farmington, Connecticut, and it is incorporated in Delaware. [ Id. ] Defendant purchased GE Home Security in 2009. [ Id. ]

         Based on these facts, Plaintiff alleges "Defendant willfully and intentionally violated FCR § 310.4 Abusive telemarketing acts or practices." [ Id. ] He alleges this is a "civil action for breaches of FCR § 310.4 Abusive telemarketing acts or practices." [ Id. ] Plaintiff seeks at least $10 million in damages. [ Id. ]

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(e) DSC, the undersigned is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action "fails to state a claim on which relief may be granted, " is "frivolous or malicious, " or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

         As a pro se litigant, Plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam ). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         DISCUSSION

         This action should be dismissed because Plaintiff fails to allege a plausible claim upon which relief may be granted, and this Court lacks subject matter jurisdiction. Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, the Complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 131 S.Ct. 1289 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory).

         Federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998); see also Nat'l Fed. of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2576 (2012) (explaining that the federal government possesses only limited powers). Because federal courts have limited subject matter jurisdiction, there is no presumption that the Court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999). Accordingly, a federal court is required sua sponte to determine if a valid basis for its jurisdiction exists, "and to dismiss the action if no such ground appears." Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").

         "[T]he facts providing the court jurisdiction must be affirmatively alleged in the complaint." Pinkley, Inc., 191 F.3d at 399. To this end, Federal Rule of Civil Procedure 8(a)(1) requires that the complaint provide "a short and plain statement of the grounds for the court's jurisdiction[.]" If, however, the Complaint does not contain "an affirmative pleading of a jurisdictional basis[, ] a federal court may find that ...


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