Silvious v. Coca-Cola Company

893 F. Supp. 2d 233

D.D.C.

2012

Check Treatment

Docket

Owen F. SILVIOUS, Plaintiff, v. COCA-COLA COMPANY, et al., Defendants.

Civil Action No. 11-2113 (RBW)

United States District Court, District of Columbia.

Sept. 28, 2012.

888 F. Supp. 2d 233

REGGIE B. WALTON, District Judge.

As framed, Count I does not allege an injury to WaMu, but to the Bondholders. Through the described conduct, JPMC allegedly breached a legal duty to the Bondholders, i.e., not to interfere willfully with their contracts. Such injuries are particular to the Bondholders, are not generalized harms to the corporation, and, as a result, are not derivative in nature.

FDIC-Receiver and JPMC hyperventilate over such а conclusion, predicting the end of FIRREA‘s purposes and goals if creditors are allowed to escape the confines of the statutory scheme. With the insight provided by the Circuit, this Court is not persuaded. Count I of the Amended Complaint charges JPMC with underhanded commercial activities that predate FDIC‘s involvement (much less FDIC-Receiver) but are alleged to have directly injured these Bondholders intentionally. Neither WаMu nor its assets is affected by the Bondholders’ Count I. These conclusions open no Pandora‘s Box: one presumes that underhanded commercial activities designed to drive an acquisition target into FDIC receivership are rare; the nature of the Bondholders’ specialized contractual relationship with WaMu distinguishes them from other creditors; and it does not shock the conscience if misconduct breeds its own rewards.⁷

IV. CONCLUSION

For the reasons set forth above, the motions to dismiss will be granted in part and denied in part. The motions to dismiss, Dkts. 132, 133, will be granted as to Counts II and III of the Amended Complaint, which will be dismissed. The motions will be denied as tо Count I. The parties shall meet and confer and submit a proposed discovery schedule no later than October 15, 2012. The Courtroom Deputy shall set a scheduling conference for soon thereaftеr. A memorializing Order accompanies this Opinion.

Owen F. Silvious, Butner, NC, pro se.

Judith L. O‘Grady, Shook, Hardy & Bacon, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

In this action filed pro se in the Superior Court of the District of Columbia (“Superior Court“) on October 20, 2011, the plaintiff is a prisoner at the Federal Correctional Institution in Butner, North Carolina, suing thе Coca-Cola Company and the Mid-Atlantic Coca-Cola Bottling Company for alleged fraudulent labeling of its Coca-Cola soda cans and bottles in violation of the District of Columbia Consumer Proteсtion Procedures Act (“D.C. Consumer Protection Act“), D.C.Code §§ 28-3901-13 (2007). See generally Amended Complaint (“Am. Compl.“) [Dkt. # 15]. The plaintiff seeks damages exceeding $750 million. Id. at 8. On November 28, 2011, the defendants, invoking this Court‘s diversity jurisdiction, removed the case from Supеrior Court to this Court. See Notice of Removal [Dkt. # 1] ¶ 6. The defendants now move to dismiss the Amended Complaint for lack of subject matter jurisdiction and for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍failure to state a claim upon which relief can be granted. The Coca-Cola Company‘s Motion to Dismiss Plaintiff‘s Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) and 28 U.S.C. § 1915 (“Def.‘s Mot.“) [Dkt. # 8]; see also The Coca-Cola Company‘s Status Report to the Court Regarding Whether Its Motion to Dismiss Will Require Supplementation in Light of the Amended Complaint [Dkt. # 19] (аdopting “in full its prior Motion to Dismiss the original Complaint with respect to the Amended Complaint ...“).¹

Upon consideration of the defendant‘s motion, the Plaintiff‘s Opposition to Defendant‘s Status Report (Response) to the Court Whether It‘s [sic] Motion to Dismiss Will Require Supplementation in Light of the Amended Complaint (“Pl.‘s Opp‘n“) [Dkt. # 24], which includes counterarguments to the defendant‘s arguments for dismissal, and the defendant‘s Reply in Support of the Coca-Cola Company‘s Motion to Dismiss Plaintiff‘s Amended Complaint (“Def.‘s Reply“) [Dkt. # 29], the Court finds that the plaintiff has not established that he has standing to bring this lawsuit and that he, as a pro se plaintiff, cannot pursue the claims of another individual. Hence, the Court will grant the defendant‘s motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction.²

I. BACKGROUND

The plaintiff contends that he is a citizen of Virginia pursuing this case in his own right and as assignee for “Ethan Clay [who] is a citizen of the District of Columbia.” Am. Compl. ¶ 3. The plaintiff аlleges that “[t]he term plaintiff means Silvious and the Assignor whose shoes Silvious has stepped in as a result of the Assignment [and] as that term is defined[,] [the plaintiff] purchased defendant‘s product in the District of Columbia during the pеriod of September 8, 2008 and August 6, 2010[,] well within the three year statute of limitations. Id. The plaintiff asserts that the “defendant[] sold and continues to sell Coca-Cola in cans and bottles which state very ‘Coke Classic Original Formula’ on it‘s [sic] cans and ‘Coke Original Formula’ on the bottles which bear the name The Coca-Cola Company, Atlanta, Georgia.” Id. ¶ 7. The plaintiff asserts further that the “Coca-Cola in the cans and bottles does nоt contain the ‘Original Formula’ that was invented by a Chemist by the name of J. Pemberton in Atlanta, Georgia in 1886[,]” id. ¶ 8, and that Coca-Cola “has not manfactured [sic], produced or used the ‘Original Formula’ invented by Dr[.] Pemberton in 1886 since at least 1899.” Id. ¶ 9.

II. DISCUSSION

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) presents “a threshold challenge ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the court‘s jurisdiction.” Morrow v. United States, 723 F.Supp.2d 71, 75 (D.D.C.2010) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987)). The plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Aсcordingly, “the [p]laintiff‘s factual allegations in the complaint ... will bear closer scrutiny in resolving [the motion],” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C.2001) (internal citation omitted), and “the court need not limit itself to the allegations of the complaint,” id. at 14. Instead, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction [in] the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000).

“The defect of standing is a defeсt in subject matter jurisdiction.” Haase, 835 F.2d at 906; accord Stein v. Bank of Am. Corp., No. 11-1400(RBW), 887 F.Supp.2d 126, 129, 2012 WL 3671009, at *2 (D.D.C. Aug. 28, 2012) (citation omitted). “The ‘irreducible constitutional minimum of standing’ ... requires that three elements be satisfied:

First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, [and] (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before thе court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

Stein, 887 F.Supp.2d at 129-30, 2012 WL 3671009, at *3 (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130).

Unlike in his previous case against Snapple, see Silvious v. Snapple Beverage Corp., 793 F.Supp.2d 414, 416, 417 (D.D.C.2011), the plaintiff does not allege in his amended complaint that he purchased Coca-Cola in the District within the past three years, nor ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍could he credibly assert this since it was previously determined that he has been incarcerated “since at least February 11, 2005.” Id. at 419 (citation and internal quotаtion marks omitted). The plaintiff alleges instead that “Mr[.] Ethan Clay who has assigned his rights under the [D.C. Consumer Protection Act] to plaintiff Silvious, purchased Coca-Cola in the District of Columbia 495 times during the period stated herein.” Am. Cоmpl. ¶ 19; see id., Exhibit (“Ex.“) H (purported Assignment of Claims and Choses of Action DC Code 28-2304 of Ethan Blecher-Clay). But it is long established that a pro se litigant generally cannot represent the interests of other individuals, 28 U.S.C. § 1654; Stoddard v. D.C. Pub. Defender Servs., 535 F.Supp.2d 116, 117 n. 1 (D.D.C.2008), and “[t]he federal courts have consistently rejected attempts at third-party lay representation,” United States ex rel. Rockefeller v. Westinghouse Elec. Co., 274 F.Supp.2d 10, 17 (D.D.C.2003) (alteration in original) (quoting Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982)). There is no reason to permit the plaintiff to do so here. Despite the purported assignment,³ the plaintiff would be representing thе interest of a third party or, as the defendant reasonably surmises from the amended complaint‘s allegations and demand for relief, a class of individuals, in violation of 28 U.S.C. § 1654. See Def.‘s Reply at 3-4; In re Heal, 442 B.R. 137, 139 (Bankr.N.D.Cal.2010) (“The key phrase [in § 1654] is ‘their own cases‘; a non-lawyer may not appear nominally on his own behalf if the outcome might benefit third parties.... The statute may not be circumvented through a purported assignment of claims.“) (citing cases).

III. CONCLUSION

For the foregоing reasons, the Court will grant the defendant‘s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍motion to dismiss the amended complaint under Rule 12(b)(1) for lack of jurisdiction, deny as futile the plaintiff‘s pending motion for leave to file a second amended complaint, аnd dismiss this case with prejudice.⁴

REGGIE B. WALTON

UNITED STATES DISTRICT JUDGE

Notes

The defendants clarify that the Mid-Atlantic Coca-Cola Bottling Company “is wholly owned by the Coca-Cola Company.” Memorandum in Support of the Coca-Cola Company‘s Motion to Dismiss Plaintiff‘s Complaint (“Def.‘s Mem.“) at 1 n. 1. The Court therefore will refer hereafter to the defendant in the singular.

Even if the plaintiff could prosecute this action on his behalf, the defendant correctly argues that this action ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is barred by the District‘s three-year statute of limitations and, thus, is subject to dismissal also under Rule 12(b)(6). See Def.‘s Mem. at 5-8; (finding same in the plaintiff‘s similarly pleaded case against different beverage company). The Court therefore will deny the plaintiff‘s motion for leave to file a second amended complaint [Dkt. # 26] on the ground of futility. See (“Courts may deny a mоtion to amend a complaint as futile ... if the proposed claim would not survive a motion to dismiss.“) (quoting ) (internal quotation marks omitted) (citing cases).

The validity of the assignment document is questionable since it is “Dated [and was executed] this 1st day of May, 2011 at Butner, NC,” whеre the plaintiff is incarcerated, and contains an wholly illegible signature of the purported assignor. Am. Compl., Ex. H. Furthermore, a search of the United States Bureau of Prisons’ inmate locator, http://www.bop.gоv, reveals that an inmate named Ethan Jesse Blecher-Clay is incarcerated at the same Butner facility (FCI Butner Medium II) as is the plaintiff and has a projected release date of June 15, 2014. Since it is a reаsonable assumption that the purported assignor and the BOP inmate are one in the same, the listing of Blecher-Clay‘s address in the purported assignment as a residence in the northwest quadrant of the District of Columbia is seemingly a blatant misrepresentation. The Court therefore will give no credence to this document and will order it stricken from the record. See Fed.R.Civ.P. 12(f) (“The court may strike from a pleading ... any ... impertinent ... matter.“).

A separate final Order accompanies this Memorandum Opinion.

JPMC urges the Court to dismiss Count I, even if not derivative of WaMu rights, because it fails as a matter of law. For purposes of considering the Defendants’ motions to dismiss, the Court applies New York Stаte law because that is the law that expressly governed the bond contracts pursuant to its offering circular, two of the Bondholders have their principal places of business in New York, JPMC is in New York and its allеged conduct centered there. This decision is made without prejudice to any further argument, after discovery, that the parties might wish to make as to what state‘s law applies. The Bondholders have sufficiently alleged a claim for tortious interference under New York law. Compare , with Am. Compl. Count I; . At this point in the litigation, the Court must treat all of the Bondholders’ allegations as true, “even if doubtful in fact.” , 127 S.Ct. 1955. The Bondholders have pled a factual scenario that is “plausible on its face,” , 129 S.Ct. 1937, and satisfied proximate causation concerns raised by JPMC.

Read the detailed case summary