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Doyle v. Florida Health Solution, Inc.

United States District Court, D. New Jersey

March 1, 2018

ROBERT DOYLE, individually, and all others similarly situated, Plaintiff,

         Not for Publication

          OPINION & ORDER

          John Michael Vazquez, U.S.D.J.

         Plaintiff 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).

         Under 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 and costs.

         When 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).

         In 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.

         It is 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

         On 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]

         Defendant's 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.

         Plaintiff 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.

         Plaintiffs 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 ΒΆ 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 ...

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