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Dotson v. Dish Network L.L.C.

United States District Court, S.D. Georgia

April 30, 2019

DISH NETWORK, L.L.C., Defendant.



         Before the Court are Defendant Dish Network, L.L.C.'s Motion to Dismiss, dkt. no. 6, and Motion for Oral Argument, dkt. no. 15, and Plaintiff Robbie Dotson's Motion to Amend his Complaint, dkt. no. 19. These motions have been fully briefed and are ripe for review. For the reasons set forth below, Plaintiff's Motion to Amend is GRANTED. Defendant's Motions are DENIED AS MOOT.


         On December 31, 2018, Plaintiff filed a Complaint in the Magistrate Court of Glynn County seeking damages for alleged violations of the Telephone Consumer Protection Act in an amount not less than $14, 800, punitive damages, and attorney's fees. Dkt. No. 1-1. The Complaint-a two-page document with five paragraphs-states that Defendant "violated the Plaintiff's rights under the Telephone Consumer Protection Act on multiple occasions." Id. ¶ 2. The Complaint continues by alleging that Defendant "failed and refused to cease calls to him, which therefore indicates that Defendant has willfully violated the law and the rights of the Plaintiff." Id. ¶ 3. These two sentences encompass the entire extent of Plaintiff's allegations in the Complaint.

         On February 13, 2019, Defendant filed a notice of removal to this Court. Dkt. No. 1. Following the removal of the case, the clerk's office mailed notice of the removal to Plaintiff's counsel, which included a notification that "PLAINTIFF'S COUNSEL INTENDING TO APPEAR IN THE REFERENCED MATTER MUST ENTER A NOTICE OF APPEARANCE OR A MOTION FOR ADMISSION PRO HAC VICE NO LATER THAN TEN (10) DAYS AFTER THE ISSUANCE OF THIS NOTICE." Dkt. No. 2. On February 18, 2019, Defendant filed a Motion to Dismiss arguing that Plaintiff's Complaint fails to state a claim upon which relief can be granted. Dkt. No. 6. On February 27, 2019, the clerk sent a notice of filing deficiency to Plaintiff's counsel, W. Douglas Adams, for failure to enter a notice of appearance in the case within ten days of the notice of removal. Dkt. No. 13. A week later, on March 6, 2019, W. Douglas Adams filed a notice of appearance on behalf of Plaintiff. Dkt. No. 14. Over three weeks after that, on March 29, 2019, Defendant filed a Motion for Oral Argument requesting oral argument because "no response to DISH's Motion appears in the record, and the Complaint does not suggest any grounds upon which Plaintiff would challenge DISH's Motion." Dkt. No. 15. On April 2, 2019, Defendant indicated to the Court in an Amended Certificate of Service that "[o]n March 29, 2019, counsel for Plaintiff informed attorneys for Defendant that he had not received the [Motion to Dismiss] (Doc. No. 6) through the CM/ECF system." Dkt. No. 16. Counsel for Defendant then certified that as of that day, he sent a copy of the motion to Plaintiff's counsel via mail. Id.

         On April 12, 2019, over a month after the deadline to respond had passed, Plaintiff filed a response to Defendant's Motion to Dismiss, dkt. no. 18, and a Motion to Amend his Complaint, dkt. no. 19. However, Plaintiff gave no explanation for his failure to timely enter a notice of appearance or respond to Defendant's Motion to Dismiss.


         Federal Rule of Civil Procedure 8(a) requires that a plaintiff s complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). When ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), a district court must accept as true the facts set forth in the complaint and draw all reasonable inferences in the plaintiff's favor. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Although a complaint need not contain detailed factual allegations, it 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). The Court accepts the allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347 (11th Cir. 2016). However, the Court does not accept as true threadbare recitations of the elements of the claim and disregards legal conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678-79. At a minimum, a complaint should "contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).


         I. Timeliness

         This is not Plaintiff's counsel's first failure to meet deadlines. See Smith v. Roundtree, 2:15-cv-4, Dkt. 27 at 3-4 (July 28, 2015) ("The Court notes that far too often in his cases before this Court, Plaintiff's counsel has failed to timely serve the complaint and requested additional time for service." (citing Motions, Smith v. Roundtree, 2:15-cv-4, ECF Nos. 6, 16 (S.D. Ga.); Motions, Lewis v. City of Brunwsick, 2:14-cv-122, ECF No's 5, 8, 13, 17 (S.D. Ga); Motions, Jackson v. Glynn County, 2:14-cv-42, ECF Nos. 4, 7 (S.D. Ga.); Motion, Cummings v. Douberly, 2:13-cv-59, ECF No. 5 (S.D. Ga.); Motions, Mitchell v. City of Nahunta, 5:13-cv-12 ECF Nos. 5, 7, 10 (S.D. Ga.); Orders, Alday v. Groover, 2:12-cv-108, ECF Nos. 19, 21 (S.D. Ga.); Order, Cupp v. United States, 5:12-cv-5, ECF No. 5 (S.D. Ga.)). Therefore, although the Court grants Plaintiff's motion to amend in this case, Plaintiff's counsel is on notice that such leeway will not be granted for future failures to meet deadlines in this case, absent some legitimate extenuating circumstance.


         Motion ...

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