United States District Court, D. New Jersey
ROBERT DOYLE, individually, and all others similarly situated, Plaintiff,
FLORIDA HEALTH SOLUTION, INC., Defendant.
OPINION & ORDER
Michael Vazquez, U.S.D.J.
Robert Doyle seeks to bring this action in forma
pauperis pursuant to 28 U.S.C. § 1915. See
D.E. 1. For the reasons discussed below, the Court
GRANTS Plaintiffs application to proceed
in forma pauperis. Plaintiffs Complaint is
DISMISSED without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B).
Section 1915, this Court may excuse a litigant from
prepayment of fees when the litigant "establish[es] that
he is unable to pay the costs of his suit." Walker
v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d
Cir. 1989). Here, Plaintiff sufficiently establishes his
inability to pay, and the Court grants his application to
proceed in forma pauperis without prepayment of fees
allowing a plaintiff to proceed in forma pauperis,
however, the Court must review the complaint and dismiss the
action if it determines that the action is frivolous,
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune. 28 U.S.C. § 1915(e)(2). When considering
dismissal under § 1915(e)(2)(B)(ii) for failure to state
a claim on which relief can be granted, the Court must apply
the same standard of review as that for dismissing a
complaint under Federal Rule of Civil Procedure 12(b)(6).
Schreane v. Seana, 506 Fed.App'x 120, 122 (3d
Cir. 2012). To state a claim that survives a Rule 12(b)(6)
motion to dismiss, a complaint must contain "enough
facts to state a claim to relief that is plausible on its
face." Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
addition, "[a] federal court is bound to consider its
own jurisdiction preliminary to consideration of the
merits." Kaplan v. Garrison, 2015 WL 2159827,
at *2 (D.N.J. May 6, 2015) (internal quotation marks
omitted). If jurisdiction is lacking, the Court must dismiss
the action. Fed.R.Civ.P. 12(h)(3). A federal court has
jurisdiction in a civil case when "a federal question is
presented on the face of the plaintiffs properly pleaded
complaint, " Hirschbach v. NVE Bank, 496
F.Supp.2d 451, 454 (D.N.J. July 24, 2007), or when there is
diversity of citizenship. A court has federal question
jurisdiction pursuant to 28 U.S.C. § 1331 if the
complaint "establishes that federal law create[s] the
cause of action or that the plaintiffs right to relief
necessarily depends on the resolution of a substantial
question of federal law." ACR Energy Partners, LLC
v. Polo N. Country Club, Inc., 143 F.Supp.3d 198, 202
(D.N.J. Nov. 5, 2015) (internal quotation marks omitted).
Jurisdiction in this matter is based upon federal question
jurisdiction pursuant to 28 U.S.C. § 1331. Because
Plaintiff brings his class claims pursuant to the Telephone
Consumer Protection Act ("TCPA"), 47 U.S.C. §
227. Accordingly, this Court retains federal question
jurisdiction over Plaintiffs Complaint.
important to note that when a plaintiff proceeds pro
se, the Court construes the pleadings liberally and
holds them to a less stringent standard than those filed by
attorneys. Haines v. Kerner, 404 U.S. 519, 520
(1972). Pro se litigants who are attorneys, however,
"are not accorded the same consideration as pro
se litigants who lack substantial legal training."
Turner v. NJ. State Police, 2017 U.S. Dist. LEXIS
48036, at *19, 20 (D.N.J. Mar. 29, 2017) (citing Kenny v.
United States, 2009 U.S. Dist. LEXIS 8322, at *22
(D.N.J. Feb. 5, 2009) (explaining that "although the
Court is generally compelled to construe a complaint
liberally in matters involving pro se litigants,
" an attorney pro se litigant's complaint
will not be so construed as the litigant "has
substantial legal training and professional
experience")); see also Allen v. Aytch, 535
F.2d 817, 821 (3d Cir. 1976) (declining to construe the
complaint of a third year law student liberally because the
student had "substantial legal training"). Instead,
because an attorney pro se litigant "would be
held to the standard of an attorney" in representing
others, "it is not unfair to hold [the litigant] to the
same standard when representing himself."
Turner, 2017 U.S. Dist. LEXIS 48036, at *20.
Accordingly, Plaintiff, who claims to be "an attorney
licensed to practice in the State of New York, " D.E. 1,
(referred to hereinafter as "Compl.") at ¶ 5,
will not be accorded the leniency due to pro se
litigants who lack "substantial legal training."
I. Factual Background
November 29, 2017, Robert Doyle ("Doyle" or
"Plaintiff) filed his initial Complaint in this matter
against Defendant Florida Health Solution, Inc.
("Defendant"). D.E. 1. Plaintiff characterizes his
Complaint as a "nation-wide class action
complaint." Plaintiff alleges that Defendant violated
the TCPA by contacting Plaintiff on his cellular telephone
via an "automatic dialing system." Compl. ¶ 9.
According to Plaintiff, Defendant was "at all relevant
times in the business of selling a health savings and/or
health insurance policy." Id. at ¶ 8.
Plaintiff alleges that he received "[s]o far, on twenty
four (24) occasions... 'robo calls' on his personal
cell phone, by an automated telephone dialing system using a
pre-recorded voice ... offering [the Plaintiff]
retail health savings product." Id. at ¶9.
Plaintiff further alleges that the "Robo Calls"
were for "commercial purposes and did not constitute an
emergency." Id. at ¶ 10. According to
Plaintiff, on each occasion, "a person [eventually] came
to the phone and spoke to [Plaintiff] in Spanish."
Id. at ¶ 12. On some occasions, Plaintiff
states that his wife, Lillian Ganci, "spoke with many of
Defendant's representatives because Ganci speaks Spanish
better than Doyle." Id. at ¶ 13. Further,
Plaintiff contends that he "had no prior relationship
with Defendant and never gave Defendant his personal
information prior to the 'Robo Calls.'"
Id. at ¶ 15. Plaintiff contends that
Defendant's actions violated 47 U.S.C. §
227(b)(1)(B) of the TCPA. Id. at ¶ 11.
claims to be a member, and represent a class consisting of:
All persons within the United States who received messages
soliciting Defendant's services, from Defendant or its
agents, to said person's residential or cell telephone,
initiated by Defendant through the use of an artificial or
prerecorded voice within the four years prior to the filling
[sic] of the Complaint.
Id. at ¶ 17. Plaintiff states that he
"does not know the number of members of the CLASS but
believes the number of CLASS members to be in the tens of
thousands." Id. at ¶ 19. Plaintiff states
that the class members "can be identified through the
records of each of the Defendant [sic], and/or the records or
[sic] its agents." Id. at ¶ 24. While
Plaintiff brings his claims on his own behalf, his Complaint
states that "Plaintiff has retained counsel experienced
in handling class action claims and claims involving
violations of the Telephone Consumer Protection Act."
Id. at ¶33.
Count One alleges negligent violation of the TCPA and
requests $500.00 for "each and every" violation of
the TCPA, "injunctive relief prohibiting [Defendant
from] such conduct in the future, " and any further
relief this Court deems "just, proper, and
equitable." Id. at ¶ 41. Plaintiffs Count
Two alleges "Knowing and/or Wilful [sic] Violations of
the TCP A" and requests $1, 500.00 for "each and
every" violation of the TCP A, "injunctive relief
prohibiting [Defendant from] such conduct in the future,
" and ...