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Douce v. Origin ID TMAA 1404-236-5547

February 17, 2009

OLIVER DOUCE, PLAINTIFF,
v.
ORIGIN ID TMAA 1404-236-5547, KATHLEEN BROOM, THE NEW AT&T CINGULAR WIRLESS, DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

On August 31, 2007, pro se plaintiff Oliver Douce ("Douce") filed this action against his cellular telephone service provider, AT&T Mobility LLC ("ATTM"), formerly known as Cingular Wireless, and one of its employees, Kathleen Broom ("Broom"). On April 17, 2008, defendants moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. On July 14, the Court granted Douce leave to amend his complaint to allege facts supporting his assertion of diversity jurisdiction.

Douce filed an amended complaint on August 18. Defendants have renewed their motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. In the alternative, defendants request a stay pending arbitration of Douce's claims.

BACKGROUND

The following facts are taken from Douce's amended complaint and documents on which the complaint relies.*fn1 In 1996, Douce, a resident and citizen of New York, signed a contract with ATTM,*fn2 a Georgia-based company, for provision of services on cellular telephone number ***-7491 (the "7491 Account"). Douce states that he was an ATTM customer for thirteen years, and had twenty-seven years of business connected to the 7491 telephone number.*fn3 He believed that the 7491 Account was his only account with ATTM. On April 11, 2007, Douce received a telephone call from an ATTM employee informing him that he was in arrears on a cellular telephone account bearing his name, but of whose existence he was unaware. The ATTM employee informed Douce that this second account had been opened in March 2007 (the "March 2007 Account").

According to Douce, immediately following the April 11 telephone call, ATTM terminated service for the 7491 Account due to Douce's failure to pay the March 2007 Account bill on time. On May 28, 2007, Douce spoke with Kathleen Broom, a paralegal working for ATTM, to try to resolve the problem. Broom told Douce that he was not responsible for payment on the March 2007 Account. Nonetheless, Broom told Douce, if he paid $130 to ATTM, she would restore service on the 7491 Account. Douce paid the $130, but service on the 7491 Account was never restored. Broom informed Douce that, because his telephone had been disconnected for sixty days, service on the same number could not be restored.

Douce filed a complaint in this action with this Court's Pro Se Office on August 31, 2007, naming a telephone number, Kathleen Broom, and AT&T Wireless as defendants.*fn4 On December 21, 2007, Douce entered into a new two-year Wireless Service Agreement with ATTM (the "December 2007 Contract") for cellular telephone service. The December 2007 Contract incorporates the Terms of Service, which are printed in a separate seventeen-page booklet, by reference. One section of the Terms of Service, entitled "Dispute Resolution by Binding Arbitration," states that "AT&T [Mobility] and you agree to arbitrate all disputes and claims between us."

Defendants moved to dismiss the complaint on April 17, 2008 or, in the alternative, for a stay pending arbitration, pursuant to the arbitration clause in the December 2007 Contract between Douce and ATTM. ATTM, construing the complaint liberally, identified claims for (1) violation of regulations promulgated by the Federal Communications Commission ("FCC"); (2) violation of the Federal Trade Commission Act ("FTCA"); (3) violation of the Fourteenth Amendment, Clause 5; (4) violation of the federal number portability regulation, 47 C.F.R. §52.31; (5) breach of contract; (6) misrepresentation; (7) conversion of property; and (8) concurrent negligence.

A July 14, 2008 Opinion and Order ("the July 14 Opinion") found that Douce failed to state a federal cause of action. Douce v. Origin TMAA 1404-236-5547, No. 08 Civ. 483 (DLC), 2008 WL 2755831, at *2-*3 (S.D.N.Y. Jul. 14, 2008). While diversity jurisdiction over this action could exist if $75,000 or more were in controversy, Douce had not demonstrated a "reasonable probability" that the $75,000 threshold was met. Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) (citation omitted). The July 14 Opinion granted Douce leave to amend his complaint solely for the purpose of alleging facts to support diversity jurisdiction and dismissed his claims brought under federal law. The July 14 Opinion did not address defendants' motion for a stay pending arbitration.

On August 18, Douce filed an amended complaint against "The New AT&T Cingular Wireless" and Kathleen Broom only. The amended complaint alleges that, because of defendants' conduct, Douce's $80,000 restaurant and $40,000 limousine businesses suffered and he was forced to file for bankruptcy. Douce has dropped all claims previously brought under federal law.

Defendants moved to dismiss the amended complaint under Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P. Douce filed a response. Defendants' reply does not pursue the allegation that no diversity jurisdiction exists, but focuses on the arbitration issue and Douce's alleged failure to state a claim.*fn5

DISCUSSION

Defendants argue that Douce's claims must be dismissed for three reasons: there is no subject-matter jurisdiction, his claims are subject to binding arbitration, and he has failed to state a claim for fraudulent misrepresentation, negligence, conspiracy, conversion, or breach of contract. The argument that there is no subject matter jurisdiction because Douce has not demonstrated the "reasonable probability" of $75,000 or more in controversy necessary for diversity jurisdiction will be addressed first, followed by the arbitration issue. ...


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