United States District Court, D. South Carolina, Charleston Division
Heather C. Hoffman, Plaintiff,
Charter Communications, Defendant.
REPORT AND RECOMMENDATION
GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
Heather Hoffman has filed this civil action under the South
Carolina Unfair Trade Practices Act (“SCUPTA”),
challenging her cable bills from Charter Communications.
Plaintiff is a nonprisoner litigant proceeding pro
se and in forma pauperis (“IFP”).
Pursuant to the provisions of 28 U.S.C. §636(b)(1), and
Local Rule 73.02(B)(2), the Magistrate Judge is authorized to
review the complaint and to submit findings and
recommendations to the District Judge. After careful review,
the Magistrate Judge recommends that the Complaint be
dismissed for lack of subject matter
jurisdiction, without issuance and service of
process, for the following reasons:
The Complaint's Allegations
April 26, 2018, Plaintiff filed the present Complaint in this
federal court, asserting that the Defendant allegedly
violated several regulations of the Federal Communications
Commission (“FCC”), and therefore, committed an
unfair trade practice under state law. (DE# 1, Complaint).
She indicates in her Complaint that she is proceeding under
“federal question” jurisdiction. (Id. at
3, ¶ II, “Basis for
Jurisdiction”). She alleges that she purchased cable
television and internet service from “Time Warner
Cable/Spectrum/Charter Communications” beginning May
2014 to the present. (Id. at 7, ¶ 1). Plaintiff
sent a letter to the Clerk of Court to clarify that she is
only suing Charter Communications as a defendant. (DE# 15,
Letter received 05/10/2018, captioned “Clarification of
Defendant(s)”). In her Complaint, Plaintiff alleges
that Charter Communications “has engaged in deceptive,
unlawful and fraudulent billing practices and concealment of
said unlawful billing practices through omission and/or
silence in violation of FCC federal regulations including 47
C.F.R. § 76.1619(a)(b) and 47 C.F.R. §
76.1603(B)(C).” (Id. at 8, ¶ 9).
Complaint, Plaintiff states that she “brings this
action pursuant to the South Carolina Unfair Trade Practices
Act …. to remedy prior and ongoing unfair, deceptive,
fraudulent and unlawful billing practices.” (DE# 1,
citing S.C. Code § 39-5-20(a)). Plaintiff sets forth a
lengthy account of her various billing disputes with this
cable carrier. (Id. at 8, ¶ 11, indicating she
“filed a verbal complaint with a customer service
representative”). She questions several billing
increases (in the amount of $5.00 and $10.00) over the past
few years and contends that such increases were
“non-compliant” with FCC regulations.
(Id. at 8, ¶¶ 11-12). She points to the
following language of 47 C.F.R. § 76.1603 (b)(c):
“Customers will be notified of any changes in rates,
programming services or channel positions as soon as possible
in writing. Notice must be given to subscribers a minimum of
30 days in advance of such changes.” (Id. at
9, ¶ 12). Plaintiff alleges that she did not receive a
thirty (30) day notification from the Defendant.
(Id. at 9).
asserts that she was on a standard rate, not a promotional
rate. (Id. at 9, ¶¶ 13-15). According to
Plaintiff, the regulations specify that “bills must be
clear, concise and understandable.” (Id. at 9,
¶ 16). She claims that Charter Communications
“deliberately lied” about the reason for her rate
increase. (Id.). She also alleges that Charter
Communications did not give her an explanation for the rate
increase. (Id. at 10, ¶¶ 18-19). Plaintiff
then presents a long list of her contacts (i.e., emails,
calls, letters, and numerous “rebuttal letters”)
with the cable carrier (and the FCC) about her cable bills,
and any responses she received. (Id. at 10-17,
¶¶ 20-64). According to Plaintiff, this shows a
“pattern and practice of unlawful, deceptive and unfair
acts and business practices by Charter Communications
… in continuing violation of S.C. Code Ann. §
39-5-20(a).” (Id. at 17, ¶ 69).
Complaint, Plaintiff alleges that Charter Communications
violated certain FCC regulations and asserts that this
constitutes a violation of South Carolina state law (SCUPTA).
(DE#1 at 17, ¶¶ 70, 72-74). Plaintiff complains
(verbatim) that: “in remaining silent, management
and/or supervisory staff and/or corporate has refused to
respond noncompliant (sic) to 47 C.F.R. § 76.1919(b)
and/or take corrective action thereby acting in continuing
violation of S.C. Code Ann. § 39-5-20(a).”
(Id., ¶ 74).
relief, Plaintiff demands an injunction and/or a “cease
and desist order” enjoining Charter Communications from
engaging in practices that violate SCUPTA and FCC
regulations. (DE#1 at 18, ¶ 76). She points to the
treble damages provision of SCUPTA. (Id., ¶
77). She says her damages are $322.67, and therefore she
wants treble damages in the amount of $968.01. (Id.,
se pleadings are liberally construed and are held to a
less stringent standard than formal pleadings drafted by
attorneys. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). However, “[t]he ‘special
judicial solicitude' with which a district court should
view ... pro se complaints does not transform the
court into an advocate. United States v. Wilson, 699
F.3d 789, 797 (4th Cir. 2012), cert. denied, 133
S.Ct. 2401 (2013). Only those questions which are squarely
presented to a court may properly be addressed. Weller v.
Dept. of Soc. Servs. for City of Baltimore, 901 F.2d
387, 391 (4th Cir. 1990). Giving “liberal
construction” does not mean that the Court can ignore
a pro se plaintiff's clear failure to allege
facts that set forth a cognizable claim. “Principles
requiring generous construction of pro se complaints
... [do] not require ... courts to conjure up questions never
squarely presented to them.” Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) cert.
denied, 475 U.S. 1088 (1986).
Complaint asserts a cause of action under South Carolina
state law (“SCUPTA”). SCUPTA provides
that“[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or
commerce are hereby declared unlawful.” S.C. Code
§ 39-5-20(a). Plaintiff alleges a cause of action under
SCUPTA based on the Defendant's alleged violation of
federal regulations with respect to Plaintiff's personal
cable bill. Plaintiff invokes FCC regulations as one element
of her state-law unfair trade practices claim under state
law. Plaintiff's Complaint seeks to proceed in federal
court under “federal question jurisdiction.”
Federal Question Jurisdiction
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). A federal court may sua
sponte determine if a valid basis for its jurisdiction
exists, and must “dismiss the action if no such ground
appears.” Id. at 352. Rule 12(h)(3) of the
Federal Rules of Civil Procedure provides that “[i]f
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3). A federal court possesses the inherent
authority to ensure that federal jurisdiction exists for a
case before it. See Carter v. Ervin, No.
0:14-cv-00865-TLW-PJG, 2014 WL 2468351, *3 (D.S.C. June 2,
2014), appeal dism'd, 585 Fed.Appx. 98 (4th Cir.
2014); Davis v. Wilson, No. ...