Opinion
No. 5:18-cv-00418-FL
11-13-2018
Natia C. Ridges and Timely Transportation & Logistics, Inc. Plaintiffs, v. Diamond Truck Sales, et al., Defendants.
Order & Memorandum & Recommendation
Natia Ridges, a North Carolina resident, recently filed a complaint on behalf of herself and Timely Transportation & Logistics, Inc., along with a motion to proceed in forma pauperis ("IFP motion"). Her filings allege that either she or her company, Timely Transportation & Logistics, Inc. purchased three tractor trailers from Diamond Truck Sales, a South Carolina company. She purchased two trucks in August 2017 and another one in August 2018. She also purchased warranties for the vehicles from Diamond. Each vehicle suffered a major engine failure that rendered it inoperable shortly after she took possession of it. Repairs to the vehicles cost well over $150,000. She then learned that the warranties Diamond sold her did not cover major engine failures.
Ridges's Complaint claims that Diamond violated the Magnuson-Moss Warranty Act ("MMA") and North Carolina's prohibition on unfair or deceptive trade practices ("UDTP"). See 15 U.S.C. 2301 & N.C. Gen. Stat. § 75-1.1. She seeks $425,000 in damages. After reviewing her Complaint and IFP motion, the court will grant the motion and allow her complaint to proceed against Diamond. All other claims against any other entities should be dismissed without prejudice.
Ridges' complaint also refers to several state and federal jurisdictional statutes, but none of those statutes provide a cause of action. --------
I. Motion to Proceed Without Prepayment of Fees
A party seeking to file a complaint without paying the filing fee must submit an affidavit explaining their monthly income and expenses. A review of Ridges's affidavit shows that her monthly expenses exceed her monthly income. Id. The court therefore finds that Ridges lacks sufficient resources to pay the required filing fee and other costs associated with litigation. The court thus grants Ridges' IFP Motion, D.E. 1., and allows her to proceed without full prepayment of costs.
II. Dismissal of Unrepresented Corporation
Previously, the court noted that Timely Transportation appeared as a plaintiff in some documents filed with the court, but it was not represented by an attorney. The court noted that "[i]t has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel." Rowland v. Cal. Men's Colony, 506 U.S. 194, 201-02 (1993). The court informed Ridges that if an attorney did not appear on behalf of the corporation by mid-October 2018, the undersigned would recommend that the unrepresented corporation be dismissed without prejudice.
Ridges responded by saying that she was representing herself and that Timely Transportation was no longer an active corporation. D.E. 4. Considering Ridges's response and the fact that no attorney has appeared no behalf of Timely Transportation within the time allotted by the court, the district court should dismiss Timely Transportation from this action without prejudice.
III. Screening Under 28 U.S.C. § 1915
In addition to determining whether Ridges is entitled to IFP status, the court must also analyze the viability of the claims in her Complaint. 28 U.S.C. § 1915(e). The court reviews a complaint to eliminate those claims that unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss any portion of the complaint it determines is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. § 1915(e)(2)(B).
Ridges first asserts that Diamond violated the North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1 et seq. The Act provides that "[u]nfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful." N.C. Gen. Stat. § 75-1.1(a); see also N.C. Gen. Stat. § 75-16 (providing for a private cause of action). To state a claim for unfair and deceptive trade practices, a plaintiff must allege sufficient facts showing: (1) that a defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) that the act proximately injured plaintiff. Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001). An unfair act or practice "offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). A deceptive act or practice "has the capacity or tendency to deceive." Id. An act is in or affecting commerce if it is in or affects "all business activities, however denominated" except for "professional services rendered by a member of a learned profession." N.C. Gen. Stat. § 75-1.1(b). Finally, the act must cause a legally cognizable injury, not an injury that is "speculative and illusory." Coker v. DaimlerChrysler Corp., 172 N.C. App. 386, 397, 617 S.E.2d 306, 313-14 (2005).
Ridges alleges that Diamond sold her trucks with severe engine issues that rendered them inoperable shortly after purchase and sold her warranties that would not cover those shortcomings. Considering the lenient standard afforded to pro se litigants, the court will find that Ridges has stated a claim for a violation of North Carolina's UDTP against Diamond.
But the court cannot reach the same conclusion about Ridges's MMA claim. The MMA provides a federal breach of warranty remedy for consumers "of any consumer product." 15 U.S.C. § 2301(3). The MMA defines a "consumer product" as "any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes." Id. § 2301(1). The allegations here do not relate to personal property normally used for personal, family, or household purposes. Instead, it deals vehicles purchased for business purposes. Ridges cannot state a claim for a violation of MMA, and thus the district court should dismiss this claim.
The complaint seems to name several other businesses as defendants. See Compl. at 2-3. But it contains no factual allegations against these entities. Thus, Ridges has not stated a claim against them and the district court should dismiss them from this action.
IV. Conclusion
Ridges's IFP motion is granted and her UDTP claim against Diamond can proceed. The Clerk of Court will issue the summons Ridges submitted for Diamond. The United States Marshal shall serve the summons on the address provided on the summons.
The undersigned recommends that the district court dismiss Timely Transportation from this action without prejudice, dismiss Ridges's MMA claim with prejudice, and dismiss all remaining claims against any remaining defendants without prejudice.
The Clerk of Court must serve a copy of this Order and Memorandum and Recommendation ("O&M&R") on each party who has appeared in this action. Any party may file a written objection to the O&M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the O&M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the O&M&R (or a later decision based on the O&M&R) reviewed by the Court of Appeals. Dated: November 13, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge