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Owen F. Silvious v. Coca-Cola Company et al


September 28, 2012


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


In this action filed pro se in the Superior Court of the District of Columbia ("Superior Court") on October 20, 2011, the plaintiff is a prisoner at the Federal Correctional Institution in Butner, North Carolina, suing the Coca-Cola Company and the Mid-Atlantic Coca-Cola Bottling Company for alleged fraudulent labeling of its Coca-Cola soda cans and bottles in violation of the District of Columbia Consumer Protection Procedures Act ("D.C. Consumer Protection Act"), D.C. Code §§ 28--3901-13 (2007). See generally Amended Complaint ("Am. Compl.") [Dkt. # 15]. The plaintiff seeks damages exceeding $750 million. Id. at 8. On November 28, 2011, the defendants, invoking this Court's diversity jurisdiction, removed the case from Superior Court to this Court. See Notice of Removal [Dkt. # 1] ¶ 6. The defendants now move to dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The Coca-Cola Company's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(B)(1) and 12(B)(6) and 28 U.S.C. § 1915 ("Def.'s Mot.") [Dkt. # 8]; see also The Coca-Cola Company's Status Report to the Court Regarding Whether Its Motion to Dismiss Will Require Supplementation in Light of the Amended Complaint [Dkt. # 19] (adopting "in full its prior Motion to Dismiss the original Complaint with respect to the Amended Complaint . . . ").*fn1

Upon consideration of the defendant's motion, the Plaintiff's Opposition to Defendant's Status Report (Response) to the Court Whether It's [sic] Motion to Dismiss Will Require Supplementation in Light of the Amended Complaint ("Pl.'s Opp'n") [Dkt. # 24], which includes counterarguments to the defendant's arguments for dismissal, and the defendant's Reply in Support of the Coca-Cola Company's Motion to Dismiss Plaintiff's Amended Complaint ("Def.'s Reply") [Dkt. # 29], the Court finds that the plaintiff has not established that he has standing to bring this lawsuit and that he, as a pro se plaintiff, cannot pursue the claims of another individual. Hence, the Court will grant the defendant's motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction.*fn2


The plaintiff contends that he is a citizen of Virginia pursuing this case in his own right and as assignee for "Ethan Clay [who] is a citizen of the District of Columbia." Am. Compl. ¶ 3. The plaintiff alleges that "[t]he term plaintiff means Silvious and the Assignor whose shoes Silvious has stepped in as a result of the Assignment [and] as that term is defined[,] [the plaintiff] purchased defendant's product in the District of Columbia during the period of September 8, 2008 and August 6, 2010[,] well within the three year statute of limitations. Id. The plaintiff asserts that the "defendant[] sold and continues to sell Coca-Cola in cans and bottles which state very 'Coke Classic Original Formula' on it's [sic] cans and 'Coke Original Formula' on the bottles which bear the name The Coca-Cola Company, Atlanta, Georgia." Id. ¶ 7. The plaintiff asserts further that the "Coca-Cola in the cans and bottles does not contain the 'Original Formula' that was invented by a Chemist by the name of J. Pemberton in Atlanta, Georgia in 1886[,]" id. ¶ 8, and that Coca-Cola "has not manfactured [sic], produced or used the 'Original Formula' invented by Dr[.] Pemberton in 1886 since at least 1899." Id. ¶ 9.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) presents "a threshold challenge to the court's jurisdiction." Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). The plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Accordingly, "the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving [the motion]," Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13--14 (D.D.C. 2001) (internal citation omitted), and "the court need not limit itself to the allegations of the complaint," id. at 14. Instead, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction [in] the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000).

"The defect of standing is a defect in subject matter jurisdiction." Haase, 835 F.2d at 906; accord Stein v. Bank of Am. Corp., No. 11-1400 (RBW), ___ F. Supp. 2d ___, 2012 WL 3671009, at *2 (D.D.C. Aug. 28, 2012) (citation omitted). "The 'irreducible constitutional minimum of standing' . . . requires that three elements be satisfied:

First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, [and] (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Stein, 2012 WL 3671009, at *3 (quoting Lujan, 504 U.S. at 560-61).

Unlike in his previous case against Snapple, see Silvious v. Snapple Beverage Corp. 793 F. Supp. 2d 414, 416, 417 (D.D.C. 2011), the plaintiff does not allege in his amended complaint that he purchased Coca-Cola in the District within the past three years, nor could he credibly assert this since it was previously determined that he has been incarcerated "since at least February 11, 2005." Id. at 419 (citation and internal quotation marks omitted). The plaintiff alleges instead that "Mr[.] Ethan Clay who has assigned his rights under the [D.C. Consumer Protection Act] to plaintiff Silvious, purchased Coca-Cola in the District of Columbia 495 times during the period stated herein." Am. Compl. ¶ 19; see id., Exhibit ("Ex.") H (purported Assignment of Claims and Choses of Action DC Code 28-2304 of Ethan Blecher-Clay). But it is long established that a pro se litigant generally cannot represent the interests of other individuals, 28 U.S.C. § 1654; Stoddard v. D.C. Pub. Defender Servs., 535 F. Supp. 2d 116, 117 n.1 (D.D.C. 2008), and "[t]he federal courts have consistently rejected attempts at third-party lay representation," United States ex rel. Rockefeller v. Westinghouse Elec. Co., 274 F. Supp. 2d 10, 17 (D.D.C. 2003) (alteration in original) (quoting Herrera--Venegas v. Sanchez--Rivera, 681 F.2d 41, 42 (1st Cir. 1982)). There is no reason to permit the plaintiff to do so here. Despite the purported assignment,*fn3 the plaintiff would be representing the interest of a third party or, as the defendant reasonably surmises from the amended complaint's allegations and demand for relief, a class of individuals, in violation of 28 U.S.C. § 1654. See Def.'s Reply at 3-4; In re Heal, 442 B.R. 137, 139 (Bankr. N.D. Cal. 2010) ("The key phrase [in § 1654] is 'their own cases'; a non-lawyer may not appear nominally on his own behalf if the outcome might benefit third parties . . . . The statute may not be circumvented through a purported assignment of claims.") (citing cases).


For the foregoing reasons, the Court will grant the defendant's motion to dismiss the amended complaint under Rule 12(b)(1) for lack of jurisdiction, deny as futile the plaintiff's pending motion for leave to file a second amended complaint, and dismiss this case with prejudice.*fn4

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