Tensley v. Sprint / The New T-Mobile

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DARIAN TENSLEY,

Plaintiff,

v. Case No. 8:23-cv-2878-WFJ-CPT

SPRINT / THE NEW T-MOBILE,

Defendant.

/

ORDER

Darian Tensley, a federal prisoner proceeding pro se, initiated this action by filing

a complaint, (Doc. 1), a memorandum of law in support of the complaint, (Doc. 2), a motion

for preliminary injunction, (Doc. 3), and a motion for leave to proceed in forma pauperis,

(Doc. 4). Upon review, see 28 U.S.C. § 1915(e)(2), the Court concludes that the complaint

must be dismissed without prejudice for lack of subject matter jurisdiction. The Court also

denies without prejudice Mr. Tensley’s motion for preliminary injunction and motion for

leave to proceed in forma pauperis.

I. Screening of Complaint

Mr. Tensley alleges that from “the end of 2002” to 2003, he was a customer of

Sprint, which was subsequently acquired by T-Mobile. (Doc. 2 at 2). During that time, he

purchased a cell phone at a Sprint store in Tampa, Florida. (Id.) While he was a Sprint

customer, Mr. Tensley “received numerous correspondence from Sprint,” including

“billing service agreement[s], customer notifications, etc.” (Id.)

In June 2003, Mr. Tensley was arrested on federal drug charges involving the

distribution of “53.8 grams of crack cocaine.” (Id.) From that time to the present, Mr.

Tensley has “diligently corresponded” with Sprint and T-Mobile, asking them to “turn over

phone records for the time period he was a customer with them.” (Id. at 2, 5). Mr. Tensley

claims that his phone records would “prove” that he was “not in the area where th[e] alleged

‘drug buy’ occurred.” (Doc. 1-1 at 8). Despite Mr. Tensley’s repeated requests, Sprint and

T-Mobile have “failed to provide” the requested records, thereby breaching an unspecified

provision of their “prior and current service agreement” with him. (Doc. 2 at 6; Doc. 3 at

2). Because he could not obtain the phone records, Mr. Tensley was allegedly forced to

plead guilty “to a crime [he] was innocent of” and “was sent to federal prison.” (Doc. 1-1

at 8-9). Finally, Mr. Tensley alleges that in August 2023, he attempted to initiate arbitration

against T-Mobile in an effort to resolve the dispute, but he “received no response.” (Id. at

9).

Based on these allegations, Mr. Tensley sues T-Mobile for (1) breach of contract,

(2) violations of the Florida Deceptive and Unfair Trade Practices Act, (3) false advertising

under the Lanham Act, and (4) violations of the Due Process Clause of the federal

constitution. (Doc. 2 at 3-7). Mr. Tensley seeks $30 million in damages. (Doc. 1 at 4).

Mr. Tensley’s complaint must be dismissed without prejudice because it fails to

adequately invoke this Court’s subject matter jurisdiction. “Federal courts are courts of

limited jurisdiction and are required to inquire into their jurisdiction at the earliest possible

point in the proceeding.” Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1279-80 (11th

Cir. 2001). “In a given case, a federal district court must have at least one of three types of

subject matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal

question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to

28 U.S.C. § 1332(a).” Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir.

1997).

Mr. Tensley purports to invoke this Court’s federal question jurisdiction, (Doc. 1 at

3), but his allegations are insufficient to confer jurisdiction on that basis. “Not every

complaint alleging a federal claim invokes federal question jurisdiction.” Rubinstein v.

Yehuda, 38 F.4th 982, 993 (11th Cir. 2022). “A federal claim fails to invoke federal

jurisdiction where it is either immaterial and made solely for the purpose of obtaining

jurisdiction or wholly insubstantial and frivolous.” Id. “A claim is insubstantial and

frivolous if it is obviously without merit or clearly foreclosed by Supreme Court

precedent.” Id.

Mr. Tensley attempts to assert two federal causes of action: a false advertising claim

under Section 1125(a) of the Lanham Act, and a federal due process claim. (Doc. 2 at 3).

Section 1125(a) of the Lanham Act “extends only to plaintiffs whose interests fall within

the zone of interests protected by” that statute. Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 129 (2014). “[T]o come within the zone of interests in a

suit for false advertising under § 1125(a), a plaintiff must allege an injury to a commercial

interest in reputation or sales.” Id. at 131-32. Mr. Tensley alleges no such injury. Because

the Lanham Act claim “is clearly foreclosed by Supreme Court precedent,” it fails to invoke

federal question jurisdiction. Rubinstein, 38 F.4th at 993.

The same is true of Mr. Tensley’s due process claim. “To state a claim under [42

U.S.C.] § 1983, a plaintiff must allege the violation of a right secured by the Constitution

and laws of the United States, and must show that the alleged deprivation was committed

by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)

(emphasis added). “[T]he under-color-of-state-law element of § 1983 excludes from its

reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). Mr. Tensley alleges no facts showing that

Sprint or T-Mobile acted under color of state law. For that reason, the due process claim is

“obviously without merit” and thus insufficient to confer federal question jurisdiction.

Rubinstein, 38 F.4th at 993.

Mr. Tensley likewise fails to invoke this Court’s diversity jurisdiction. “Diversity

jurisdiction exists where the suit is between citizens of different states and the amount in

controversy exceeds the statutorily prescribed amount, in this case $75,000.” Williams v.

Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001) (citing 28 U.S.C. § 1332(a)). A

person is a citizen of the state where he is domiciled—that is, “the place of his true, fixed,

and permanent home and principal establishment, and to which he has the intention of

returning whenever he is absent therefrom.” McCormick v. Aderholt, 293 F.3d 1254, 1258

(11th Cir. 2002). A corporation is a citizen of both its state of incorporation and the state

where it has its principal place of business. 28 U.S.C. § 1332(c)(1); Hertz Corp. v. Friend,

559 U.S. 77, 88 (2010).

Mr. Tensley asserts that “Sprint/T-Mobile” is incorporated under the laws of

Florida, but he does not allege its principal place of business. (Doc. 1 at 4). For that reason

alone, the complaint fails to establish diversity of citizenship. See Yeh Ho v. Merrill Lynch

Pierce Fenner & Smith Inc., No. 22-11521, 2023 WL 2017380, at *2 (11th Cir. Feb. 15,

2023) (“The second amended complaint failed to establish diversity of citizenship because

it failed to allege Merrill Lynch’s principal place of business.”). But the complaint is

deficient for another reason as well: Mr. Tensley fails to allege facts establishing his own

citizenship. The complaint notes that he is currently incarcerated in Louisiana. (Doc. 1 at

1). But “[a] prisoner’s place of incarceration . . . does not establish his citizenship.” Heard

v. Publix Supermarkets Inc., No. 4:19-cv-111-RH-HTC, 2019 WL 13440625, at *2 (N.D.

Fla. July 15, 2019). Instead, a prisoner is ordinarily “a citizen of the state where he was

domiciled prior to incarceration.” Horn v. Est. of Camacho, 817 F. App’x 872, 875 (11th

Cir. 2020) (citing Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1314

(11th Cir. 2002)). Mr. Tensley fails to plead facts establishing his domicile prior to

incarceration. Although he states that he “resided” in Tampa, Florida before his arrest,

(Doc. 1-1 at 8), “[d]omicile is not synonymous with residence,” because “one may

temporarily reside in one location, yet retain domicile in a previous residence.”1 Molinos

Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1341-42 (11th Cir. 2011); see also

Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013) (“[D]omicile requires

both residence in a state and an intention to remain there indefinitely.”).

For these reasons, Mr. Tensley has failed to meet his burden “to allege with

sufficient particularity the facts creating jurisdiction.” Morrison v. Allstate Indem. Co., 228

1 The Court notes that, if Mr. Tensley was in fact domiciled in Florida before his incarceration, he would

not be diverse from T-Mobile, which is alleged to be incorporated in Florida.

F.3d 1255, 1273 (11th Cir. 2000). Accordingly, the complaint is dismissed without

prejudice.

II. Motion for Preliminary Injunction

Mr. Tensley filed a motion for preliminary injunction, seeking an order that would

require T-Mobile to “turn over the [requested] records.” (Doc. 3 at 2). Because Mr. Tensley

fails to adequately invoke this Court’s subject matter jurisdiction, his motion for

preliminary injunction must be denied without prejudice. See Morbark, LLC v. Beckowitz,

No. 4:23-cv-116-MW-MJF, 2023 WL 4358749, at *2 (N.D. Fla. May 3, 2023) (denying

motion for preliminary injunction where plaintiff “failed to sufficiently invoke th[e]

Court’s subject matter jurisdiction”).

Jurisdiction aside, the motion fails to comply with Local Rule 6.02, which governs

proceedings for preliminary injunctions in this Court. First, the motion does not include “a

proposed order.” Local Rule 6.01(a)(5); see also Local Rule 6.02(a)(1) (incorporating all

requirements for Local Rule 6.01 governing temporary restraining orders into the

requirements for preliminary injunctions). Second, it does not indicate that Mr. Tensley

“notif[ied] each affected party as soon as practical,” or that “an extraordinary

circumstance” supported “not requiring notice.” Local Rule 6.02(b). Mr. Tensley’s pro se

status does not excuse him from complying with the Local Rules of this Court. See Tri-

Pharma, Inc. v. Safe Harvest Med., LLC, No. 8:20-cv-3083-CEH-TGW, 2022 WL

2667848, at *2 (M.D. Fla. July 11, 2022) (“The Local Rules apply equally to all parties

who litigate in this Court, including pro se parties.”).

III. Motion for Leave to Proceed In Forma Pauperis

Finally, Mr. Tensley’s motion for leave to proceed in forma pauperis, (Doc. 4), must

be denied without prejudice because it is incomplete. Specifically, Mr. Tensley failed to

submit a certificate “completed by the warden or other authorized officer at the place of

[his] confinement, showing the amount of money or securities that [he has] in any account

in the institution.” (Id. at 5). If Mr. Tensley wishes to proceed in forma pauperis in this

action, he must submit a properly completed Affidavit of Indigency and a copy of his

inmate trust account statement for the six-month period preceding the filing of his

complaint.

IV. Conclusion

Accordingly, it is ORDERED that:

1. Mr. Tensley’s complaint, (Doc. 1), is DISMISSED without prejudice for

lack of subject matter jurisdiction.

a. If Mr. Tensley wishes to amend, he shall file an amended complaint

within THIRTY DAYS of the date of this order.

b. To amend, Mr. Tensley should complete a new civil rights complaint

form, titling it “Amended Complaint.” The amended complaint must

include all of Mr. Tensley’s claims that he wishes to pursue and may not

refer back to, or incorporate, the complaint. The amended complaint shall

supersede the complaint. Malowney v. Fed. Collection Deposit Group,

193 F.3d 1342, 1345 n.1 (11th Cir. 1999).

2. If Mr. Tensley fails to file an amended complaint by the above deadline, or

fails to seek an extension of time to do so, this order dismissing the complaint

will become a final judgment. “[A]n order dismissing a complaint with leave

to amend within a specified time becomes a final judgment if the time

allowed for amendment expires without the plaintiff [amending his

complaint or] seeking an extension. And when the order becomes a final

judgment, the district court loses ‘all its prejudgment powers to grant any

more extensions’ of time to amend the complaint.” Auto. Alignment & Body

Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 720-71 (11th Cir.

2020) (quoting Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126 (11th

Cir. 1994)).

3. Mr. Tensley’s motion for preliminary injunction, (Doc. 3), is DENIED

without prejudice.

4. Mr. Tensley’s motion for leave to proceed in forma pauperis, (Doc. 4), is

DENIED without prejudice.

a. Within THIRTY DAYS of the date of this order, Mr. Tensley must either

(1) file a fully completed Affidavit of Indigency form (if Mr. Tensley

desires to proceed as a pauper and incur the pauper’s filing fee of $350)

or (2) pay the $405.00 filing fee (if Mr. Tensley does not desire to proceed

as a pauper). Failure to comply with this directive may result in the

dismissal of this case without further notice.

5. Mr. Tensley must advise the Court of any change of address. He must entitle

the paper “Notice to the Court of Change of Address” and must exclude any

motions from the notice. Failure to inform the Court of an address change

may result in the dismissal of this case without further notice.

6. The Clerk is DIRECTED to mail to Mr. Tensley an Affidavit of Indigency

form and the standard form for pro se civil complaints.

DONE and ORDERED in Tampa, Florida, on December 19, 2023.

lieth,

UNITED STATES DISTRICT JUDGE

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