United States District Court, D. Maryland, Southern Division
ANNE L. AYERS, Plaintiff,
HANS VESTBERG, Defendant.
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
Anne Ayers, an elderly handicapped woman proceeding pro se,
filed suit against Defendant Hans Vestberg, as CEO of Verizon
Communications, Inc., alleging that Verizon has blocked
caller identification information on her home land-line,
violating her rights under the Federal Medical Privacy Act,
the Americans with Disabilities Act, and Federal
Communications Commission (FCC) rules and regulations. Am.
Compl. at 2, ECF No. 9. Plaintiff seems to be upset by
telemarketers and robocalls, which she alleges that she
cannot accurately identify and avoid because of Verizon's
failure to display caller identification information at the
time of the call and further failure to provide her with
telephone numbers upon her subsequent request. Am. Compl. at
2-3. Plaintiff asserts that calls from these unidentifiable
sources are “unsolicited, unwanted, and invasions of
her medical privacy rights.” Am. Compl. at 2. Plaintiff
further alleges that Verizon has discriminated against her
based on her age, sex, and handicap, because “[w]hat
Verizon enabled to be done to her would never have been done
to a younger, non-handicapped man.” Am. Compl. at 3.
before the Court is Defendant's Motion to Dismiss for
failure to state a claim and for lack of subject matter
jurisdiction. Def.'s Mot. at 1, ECF No. 19. Defendant
contends that Plaintiff's complaint does not give rise to
a cause of action, because no law requires a telephone
company to provide caller identification, and only the
telemarketing caller is obligated to do so. Def.'s Mot.
at 4. Alternatively, Defendant argues that the Court does not
have subject matter jurisdiction because the Plaintiff fails
to raise a federal question via her allegations against the
Defendant. Def.'s Mot. at 4. Because Plaintiff has failed
“to state a claim upon which relief can be granted,
” Fed.R.Civ.P. 12(b)(6), I will dismiss her complaint.
The motion has been briefed, ECF Nos. 19, 22, 23, and a
hearing is not necessary. See Loc. R. 105.6 (D. Md.
SUBJECT MATTER JURISDICTION
jurisdiction must “be established as a threshold
matter, ” I will first consider the Defendant's
contention that this Court lacks subject matter jurisdiction.
Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 94-95 (1998).
Rule of Civil Procedure 12(b)(1) allows a defendant to move
for dismissal of a plaintiff's complaint due to lack of
subject matter jurisdiction, asserting, in effect, that the
plaintiff lacks any “right to be in the district court
at all.” Holloway v. Pagan River Dockside Seafood,
Inc., 669 F.3d 448, 452 (4th Cir. 2012).
“Jurisdiction of the lower federal courts is . . .
limited to those subjects encompassed within a statutory
grant of jurisdiction.” Ins. Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 701
(1982). Because subject matter jurisdiction involves the
court's power to hear a case, it cannot be waived or
forfeited, and courts have an independent obligation to
ensure that subject matter jurisdiction exists. Arbaugh
v. Y & H Corp., 546 U.S. 500, 514 (2006). The burden
of establishing subject matter jurisdiction rests with the
plaintiff. Evans v. B.F. Perkins Co., 166 F.3d 642,
647 (4th Cir. 1999). The district court should grant the
12(b)(1) motion “only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law.” Balfour Beatty
Infrastructure, Inc. v. Mayor & City Council of
Balt., 855 F.3d 247, 251 (4th Cir. 2017) (quoting
Evans, 166 F.3d at 647).
in the instant motion, the Defendant's challenge as to
subject matter jurisdiction is essentially a reiteration of
his challenge to the sufficiency of the Plaintiff's
claim. Def.'s Mot. Mem. at 4, ECF No. 19-1. Though it is
possible that the Plaintiff's claims under the Federal
Medical Privacy Act, the Americans with Disabilities Act, and
FCC rules and regulations might be better levied against
another defendant, Plaintiff does at least seem to allege
that this Defendant has somehow violated her “Federal
legal rights” pursuant to those statutes. Am. Compl. at
3. Plaintiff, though she does not cite the specific source of
the right, further invokes her federal right to not be
discriminated against based on her age, sex, or handicap. Am.
Compl. at 3. Therefore, the Court has subject matter
jurisdiction, because Plaintiff's claims “aris[e]
under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Whether Plaintiff's
claims are adequate or properly directed is better addressed
as a challenge to the sufficiency of the claim under Federal
Rule of Civil Procedure 12(b)(6), rather than a challenge to
the Court's subject matter jurisdiction under Federal
Rule 12(b)(1). See Holloway, 669 F.3d at 453 (When a
plaintiff's claim arises under the laws of the United
States, “deficiencies of the claim should be addressed
by other mechanisms provided by the federal rules.”). I
will next consider this question.
FAILURE TO STATE A CLAIM
Rule of Civil Procedure 12(b)(6) allows a defendant to move
to dismiss a complaint due to a plaintiff's
“failure to state a claim upon which relief can be
granted.” Under Federal Rule of Civil Procedure
8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Notably, although a complaint “does
not need detailed factual allegations, ” Rule 8
requires “more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). “To survive a motion to dismiss pursuant to
Rule 12(b)(6), plaintiffs' ‘[f]actual allegations
must be enough to raise a right to relief above the
speculative level,' thereby ‘nudg[ing] their claims
across the line from conceivable to plausible.'”
Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.
2011) (quoting Twombly, 550 U.S. at 555). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept the material facts alleged in the complaint
as true, though statements of legal conclusions are not
afforded the same assumption of truth. Iqbal, 556
U.S. at 678; Aziz, 658 F.3d at 391. Further, a
dismissal may not be based merely on “a judge's
disbelief of a complaint's factual allegations.”
McLean v. United States, 566 F.3d 391, 399 (4th Cir.
pro se complaints are “liberally construed” and
are “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, the Court
“cannot allow patently frivolous or baseless claims to
proceed simply because the movant is pro se.”
Ringdahl v. Afsharjavan, No. 8:18-cv-01006-PX, 2019
WL 2270693, at *1 (D. Md. May 24, 2019) (citing Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Weller v. Dep't of
Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990)).
argues that no law requires a telephone company to provide
caller identification information for every call made to
Plaintiff's home. Def.'s Mot. Mem. at 4. To the
contrary, says the Defendant, pursuant to federal regulations
and FCC rules, a telephone company must refrain from
providing caller identification information upon the
caller's request, unless a call is threatening and the
report of the threat comes from a law enforcement officer.
Id. Accordingly, the Defendant maintains, none of
Plaintiff's allegations can “be the basis of a
valid cause of action.” Id. Further, the
Defendant notes that it is unclear exactly what remedy the
Plaintiff is seeking, though she appears to be requesting
that the Court issue a subpoena. Id. at 2.
when the Complaint is “liberally construed, ”
Erickson, 551 U.S. at 94, Verizon's only
apparent wrongful acts or omissions are its alleged failures
to transmit caller identification information to the
Plaintiff at the time of the calls in question and to produce
the same caller identification information upon the
Plaintiff's subsequent request. While it is undeniable
that robocalls and telemarketers often are annoying and
unwelcome, Plaintiff has failed to show that Verizon was
under any legal obligation to furnish caller identification
information either during or after those calls. To the
contrary, as the Defendant points out, Verizon must refrain
from passing along caller identification information upon the
caller's request, unless there is a threatening call
reported by a law enforcement officer. 47 C.F.R. §
64.1601(b), (f). Though telemarketers are required to
transmit their caller identification information and may not
block recipients of the call from viewing it, the rule places
that obligation on the telemarketer, not the telephone
company. 47 C.F.R. § 64.1601(e).
also alleges violations of various federal laws. Namely,
Plaintiff perceives the telemarketers' requests for
medical information and the police officer's suggestion
to simply not answer the phone as violations of the Federal
Medical Privacy Act and the Americans with Disabilities Act,
as well as FCC rules and regulations. Am. Compl. at 2.
However, Plaintiff again provides no cognizable basis for
imputing these alleged violations to her telephone company.
Plaintiff alleges that Verizon, in violation of her
“federal rights” permitted her to be harassed
based on her age, sex, and handicaps. Am. Compl. at 3. Even
assuming all of the facts in the pleadings are true,
Iqbal, 556 U.S. at 678, this claim too finds no
support. There is no indication in the pleadings that Verizon
instigated, endorsed, or enabled the objectionable phone
calls. Further, Plaintiff provides nothing more than an
“unadorned . . . accusation” that Verizon
harassed or discriminated against her based on her protected
characteristics. Am. Compl. at 3; see Iqbal, 556
U.S. at 678. There is nothing beyond mere speculation that
Verizon, based on the Plaintiff's age, sex, or handicaps,
treated Plaintiff any differently than they have anyone else
who makes a similar complaint. Indeed, in complying with the
federal regulations cited herein, the most plausible
explanation is that Verizon refrains from passing on the same