Opinion
1:23-CV-570-DII
03-28-2024
JAMES GREEN, Plaintiff, v. T-MOBILE US, INC. et al., Defendants.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN, UNITED STATES DISTRICT JUDGE:
Before the court is Defendant T-Mobile US, Inc. and Peter Osvaldik's Motion to Dismiss Plaintiff's Fourth Amended Complaint for Failure to State a Claim or in the Alternative for More Definite Statement and all related briefingAfter reviewing the pleadings and the relevant case law, and determining that a hearing is unnecessary, the undersigned submits the following Report and Recommendation to the District Court.
United States District Judge Robert Pitman referred the Motion to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Text Order, Feb. 1, 2024.
I. Background
Proceeding pro se, Plaintiff James Green purports to sue T-Mobile US, Inc. and T-Mobile's CFO, Peter Osvaldik (together “T-Mobile”). Dkt. 18 at 1.
Green's Fourth Amended Complaint asserts one claim for breach of contract. Id. at 2. In its entirety, the claim is:
On 12-15-2021 the plaintiff entered into a legally binding contract agreement with T-MOBILE US, INC. On February 27 2023 the plaintiff sent a certified letter to Mr. Peter Osvaldik C.F.O of T-MOBILE US, INC to do his fiduciary duties and he
refused to responded. The Plaintiff wrote to defendant Mr. Osvaldik on 03-21-2023 to cure the issue A \ JAMES GREEN and the defendant Peter Osvaldik \ T-MOBILE US,INC had a written agreement or contract and under that agreement or Contract the Parties were required to: the plaintiff was to accept and do the endorsement process of the bill. And the defendant was to do his fiduciary duties and apply the principal's credits to the principal's account. The defendant(s) allegedly received Federal Reserve notes for the account and refuses to add the credits to the account. The defendant not doing his fidicuary duties has caused the plaintiff emotional, financial distress and has deprived the Plaintiff of his benefits.Id.
Green asserts that the amount in controversy is $18 million. Id. The relief he seeks is:
The plaintiff would like for Your Honor to order the Defendants(s) to reconnect the service, add the principal's credits to the principal's account for a set-of and zero out this account. Also send a prompt refund to the plaintiff of the payments made out of pocket on this account. The Plaintiff gave instructions to the defendant on how to handle the account and the defendant failed to respond to the plaintiff and denied the endorsed payment of the bill. This puts the defendant in a civil money penalty of the Federal Reserve Act section 29 tier 3 because the defendant committed a pattern of the violation and willing and knowingly of the violation he committed.Id. at 3.
T-Mobile now moves to dismiss the Amended Complaint for failure to state a claim under Rule 12(b)(6). Dkt. 19.
T-Mobile also asks the court to dismiss Green's Fourth Amended Complaint for violating Rule 15(a)(2) because he filed the instant complaint-the Fourth Amended Complaint-without leave. Dkt. 19 at 6-7. The undersigned declines to recommend dismissal on this basis. The District Court referred the Motion to the undersigned and courts “generally prefer that cases be resolved on the merits.” Stelly v. Duriso, 982 F.3d 403, 406 (5th Cir. 2020).
II. Legal Standard-RULE 12(b)(6)
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded must be taken as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570.
The Supreme Court has made clear this plausibility standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided by “[t]wo working principles.” Id. First, although “a court must ‘accept as true all of the allegations contained in a complaint,' that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Second, “[d]etermining 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.” Id. at 679. Thus, in considering a motion to dismiss, the court must first identify pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
While pro se complaints are generally “construed liberally in favor of the plaintiff,” “pro se status does not offer him an ‘impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.'” Melendez v. Arnold, No. 1:21-CV-622-RP, 2023 WL 3794528, at *2-3 (W.D. Tex. May 3, 2023) (Lane, J.) (quoting Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986)).
III. Analysis
T-Mobile argues Green's Amended Complaint does not “state[] a claim for relief against any Defendant.Dkt. 19 at 6. T-Mobile argues that “[i]t is not clear from the Fourth Amended Complaint what wrong Defendants committed, which of the Defendants committed the wrongdoing, and what claims are even at issue.” Id.
T-Mobile also argues former Defendant Mike Sievert be dismissed from the case. Dkt. 19 at 6. Sievert and Osvaldik were terminated from the case on November 27, 2023. Osvaldik was reinstated as a defendant because he is named in the Fourth Amended Complaint.
Green asserts only one argument in his two-page Response (Dkt. 20): “The Plaintiff did file a complaint which [sic] relief could be granted.” Dkt. 20 at 1. The Response goes on briefly to recount correspondence Green set to T-Mobile. Id. at 1-2.
The docket in this case ties Green's Response (Dkt. 20) to a previous Motion to Dismiss (Dkt. 15). The undersigned assumes Dkt. 20 pertains to the Motion at Dkt. 19 because the Motion to Dismiss at Dkt. 15 was mooted by text order on December 14, 2023 before Green filed Dkt. 20.
The correspondence comprises three letters. Id. One letter “is simply an instruction letter asking him to apply credits to an account for a set-off; there does not appear to be any evidence contract to which T-Mobile or Mr. Osvaldik agreed to perform any duties.” Dkt. 21 at 3. That letter included a “document [that] appears to be a bill from T-Mobile to Plaintiff for $597.62 with handwritten markings on it that appear to try and make it look like T-Mobile owes Plaintiff $597.62.” Id. (emphases omitted). The other two letters “are further complaints of T-Mobile not accepting the billing statement [T-Mobile] sent to Plaintiff as a payment for Plaintiff's account.” Id. The letters do not constitute a contract. And without a contract, there can be no breach.
Under both Texas and Washington state law, to prevail on a breach of contract, a plaintiff must allege and prove the existence of, among other things, a valid contract and that the defendant breached the contract. S&S Emergency Training Sols. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) Millies v. LandAmerica Transactions, 185, Wash.2d 302, 309 (Wash. 2016). Thus, Green's Fourth Amended Complaint fails to allege the elements of breach of contract. Accordingly, Green failed to state a claim for breach of contract.
As T-Mobile notes: “This Court provided Plaintiff with four specific deficiencies that he needed to cure to sufficiently state a claim. See ECF No. 4. Yet, despite the Court's detailed roadmap to cure his deficiencies, and now multiple amendments, Plaintiff's Fourth Amended Complaint remains deficient. Compare ECF No. 1 with ECF No. 18.” Dkt. 19 at 7. Accordingly, the undersigned declines to recommend Green be given another opportunity to file a more definite statement.
IV. Recommendations
For the reasons given above, the undersigned RECOMMENDS that T-Mobile's Motion to Dismiss (Dkt. 19) be GRANTED and the Fourth Amended Complaint be DISMISSED WITH PREJUDICE.
V. Objections
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within 14 days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).