Jerman v. AT&T Corporation

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:20-cv-384-MOC-DSC

MELVIN MCCOY JERMAN, )

)

Plaintiff, pro se, )

)

vs. ) ORDER

)

AT&T CORPORATION, )

)

Defendant. )

___________________________________ )

THIS MATTER is before the Court on Defendant’s Motion for Judgment on the

Pleadings, (Doc. No. 19), and on Plaintiff’s Motion to Strike Defendant’s Motion for Judgment

on the Pleadings, (Doc. No. 22).

I. BACKGROUND

Pro se Plaintiff Melvin McCoy Jerman filed this action against Defendant AT&T on July

12, 2020, seeking $6 million in damages. (Doc. No. 1). Plaintiff alleges federal jurisdiction under

15 U.S.C. § 1592, which is part of the Tariff Act of 1930, and attempts to assert one or more

common law claims under North Carolina law. (Id.).

The following allegations are taken as true for the purposes of the motion for judgment

on the pleadings. Sometime before this suit, Plaintiff opened a DirecTV account. (Doc. No. 1 at

p. 4). In July 2017, he “cancelled his authorized services with DirecTV, a wholly-owned

subsidiary of AT&T Corporation, after he was informed, that DirecTV was not authorized to

offer customers the service deal he had accepted.” (Id.). He further contends he “was informed

he needed to return all devices in order to cancel his services, and not be charged any fees.” (Id.).

Plaintiff alleges he “returned all devices” and “received a statement from DirecTV, showing his

total amount due was $0.00…” He then alleges “[u]nknown to Plaintiff and unauthorized,

Defendant opened an AT&T account, and sent a bill…for $501.56, asking for payment in full by

09/25/2017.” (Id.).

Plaintiff did not pay the bill and AT&T assigned the defaulted amount to Sunrise Credit

Services, Inc. for collection. (Id. at 6). Despite being called by Sunrise Credit Services regarding

the account, Plaintiff never paid the bill. (Id. at 7). Instead, he contacted the Federal

Communication Commission and the North Carolina Department of Justice and filed a fraud

report with the Charlotte-Mecklenburg Police Department. (Id.).

On March 19, 2021, Defendant filed the pending motion for judgment on the pleadings.

(Doc. No. 19). On the same day, the Court issued a notice to Plaintiff of Plaintiff’s right to

respond the motion for judgment on the pleadings. (Doc. No. 20). On April 30, 2021, Plaintiff

filed the pending motion to strike Defendant’s motion for judgment on the pleadings. (Doc. No.

22). Defendant has responded to Plaintiff’s motion to strike, and this matter is ripe for

disposition.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the

pleadings when it would not delay trial. Fed. R. Civ. Pro. 12(c). “A motion for judgment on the

pleadings under Rule 12(c) is assessed under the same standards as a motion to dismiss under

Rule 12(b)(6).” Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013) (citing Edwards v.

City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Therefore, under Rule 12(c), a claim must

be dismissed when a claimant’s allegations fail to set forth a set of facts which, if true, would

entitle the claimant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible in order to

survive a motion to dismiss). When considering a motion to dismiss, the Court is “obliged to

accept the complaint’s factual allegations as true and draw all reasonable inferences in favor of

the plaintiffs.” Feminist Majority Found. v. Hurley, 911 F.3d 674, 685 (4th Cir. 2018).

“However, the court need not accept the legal conclusions drawn from the facts, and need not

accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Monroe v. City

of Charlottesville, Va., 579 F.3d 380, 385–86 (4th Cir. 2009) (internal citations and quotations

omitted).

Additionally, “[f]ederal courts are obliged to liberally construe filings by pro se litigants.”

U.S. v. Brown, 797 Fed. Appx. 85, 89 (4th Cir. 2019) (citing Haines v. Kerner, 404 U.S. 519,

520 (1972)). However, even a pro se litigant’s complaint should be dismissed when “it appears

beyond doubt that the litigant can prove no set of facts in support of his claim that would entitle

him to relief.” Barefoot v. Polk, 242 Fed. Appx. 82, 83 (4th Cir. 2007) (citing Gordon v. Leeke,

574 F.2d 1147, 1151 (4th Cir. 1978)).

III. DISCUSSION

In his Complaint, Plaintiff alleges the Court has jurisdiction under 19 U.S.C. § 1592. (Doc.

No. 1 at p. 3). This statute identifies penalties for fraud, gross negligence, and negligence under

the Tariff Act of 1930. It is well established that the Tariff Act of 1930 “does not provide for a

private right of action.” Potter v. Toei Animation Inc., 839 F. Supp. 2d 49, 53 (D.D.C. 2012). As

Plaintiff attempts to bring his claims under a statute that does not provide for a private right of

action, his claim under 19 U.S.C. § 1592 is dismissed with prejudice.

Next, liberally construing Plaintiff’s Complaint, it appears that Plaintiff is also attempting

to bring claims for common law negligence, gross negligence, fraud, and potentially breach of

contract. Given that Plaintiff is proceeding pro se and given the lenient pleading standards of

Iqbal and Twombly, the Court will deny Defendant’s motion for judgment on the pleadings as to

Plaintiff's remaining claims at this time.

IT IS, THEREFORE, ORDERED that:

1. Defendant’s Motion for Judgment on the Pleadings, (Doc. No. 19), is

GRANTED as to Plaintiff's claim under 19 U.S.C. § 1592 and DENIED as

to Plaintiff's remaining claims.

2. Plaintiffs Motion to Strike Defendant’s Motion for Judgment on the

Pleadings, (Doc. No. 22), is DENIED.

Signed: June 18, 2021

i )

pr-ervrnca

Max O. Cogburn i yg

United States District Judge Fe gat