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Smith v. Comcast Corp.

United States District Court, S.D. Alabama, Southern Division

July 17, 2018

COMCAST CORPORATION, et al., Defendants.



         This matter is before the Court on motions to dismiss filed by defendants Helmsman Management Services, LLC (“Helmsman”), Liberty Mutual Insurance Company (“Liberty”), and Joy Howard (collectively, “the Helmsman defendants”). (Docs. 59, 88). The plaintiff has filed responses, (Docs. 80, 91), and the movants replies, (Docs. 84, 92), and the motions are ripe for resolution. After careful consideration, the Court concludes the motions are due to be granted.


         The plaintiff filed his pro se complaint, (Doc. 1-1 at 6-25), in state court. Helmsman and co-defendant Comcast Corporation (“Comcast”) removed the action on the basis of diversity of citizenship. (Doc. 1). The notice of removal and its accompanying evidentiary materials reflected that complete diversity existed but, because the complaint preemptively argued that removal would be improper because multiple (unidentified) Alabama citizens had been sued, (Doc. 1-1 at 12), the Court ordered the plaintiff to present whatever material he deemed appropriate to support his position. (Doc. 8). After full briefing, the Court confirmed that diversity jurisdiction exists. (Doc. 15). Specifically, the Court ruled that, based on the evidence presented, six of the eight named defendants are citizens of states other than Alabama and the other two do not exist. The citizenship of the two fictitious defendants was disregarded in compliance with 28 U.S.C. § 1441(b). (Doc. 15 at 3-5).

         After full briefing, the Court then ruled on the motions to dismiss filed by Helmsman and Howard. The Court granted the motions due to the plaintiff's failure to satisfy Rule 8(a)(2) as construed by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). (Doc. 34 at 12-14). The Court detailed at length not only the problems with the complaint's pleading as to Helmsman and Howard but also its myriad additional pleading deficiencies. (Id. at 12-16). The Court, after providing clear instructions and warnings as to the crafting of an amended complaint, dismissed the complaint under Rules 12(b)(6) and 12(e) with leave to amend. (Id. at 16-17).

         The plaintiff thereafter filed an amended complaint. (Doc. 40). The Helmsman defendants seek dismissal of all claims against them for failure to state a claim upon which relief can be granted.[1]


         One of the many problems with the original complaint was its failure to identify clearly what cause or causes of action were being asserted. (Doc. 34 at 15). To remedy this defect, the amended complaint sets forth eight counts. (Doc. 40 at 4-7). Despite the Court's direction to do so, (Doc. 34 at 15), the plaintiff provides no headings identifying the cause of action asserted under any count, so the movants (and the Court) must tease out the claim from the text of the count.

         The Court, echoing the movants, concludes that the amended complaint asserts the following causes of action:

• Count I Intentional infliction of emotional distress[2]
• Count II Fraudulent removal
• Count III Fraudulent concealment
• Count IV Fraud/misrepresentation
• Count V Willfully negligent hiring, training and supervision
• Count VI Fraudulent billing
• Count VII Intentional infliction of emotional distress
• Count VIII Fraudulent falsification of records The plaintiff offers no disagreement with this catalog.[3]

         The Court instructed the plaintiff that any amended complaint should, in addition to presenting each legal claim as a count, “clearly identify the factual numbered paragraphs that apply to that count, and clearly explain how the legal right implicated by that count was violated.” (Doc. 34 at 16). The amended complaint does not do so. While it does break some of its predecessor's mammoth paragraphs into shorter, numbered paragraphs, no count identifies any paragraph of factual allegations that apply to the count. Further, most of the counts fail to explain how the plaintiff's legal right was violated.

         The amended complaint could justifiably be stricken as a shotgun pleading on this ground alone. The movants, however, argue that the eight counts fail to state claims against them even if all the factual allegations found within the amended complaint are considered. (Doc. 59 at 6).[4]

         I. Intentional Infliction of Emotional Distress.

         Count One alleges that the defendants “set out to cause me such anguish, stress so to impair my abilities to seek redress, ” specifically by “send[ing] two men [the fictitious defendants] to my home to physically intimidate me.” (Doc. 40 at 4).

         The movants argue that Count I fails to identify any conduct by any of them that could support an outrage claim. (Doc. 59 at 8). The Court agrees. Count I by its terms is limited to the conduct of the two fictitious defendants and of any defendant responsible for sending them. The amended complaint, however, identifies no connection of the Helmsman defendants to this challenged conduct; on the contrary, it negates such a connection.

         According to the amended complaint's statement of facts, the seeds of this lawsuit were sown when a “Comcast”[5] technician connected the wrong size cable to the Ethernet port on the plaintiff's laptop at his home, permanently disabling the port. The plaintiff contacted “Comcast” for tech support, was assigned an escalation number, and received a visit from a second technician, who confirmed the damage. Unknown to the plaintiff, his escalation number was then canceled out. Eventually, the plaintiff contacted tech support again, resulting in a third technician visiting his home and again confirming the damage. The plaintiff then called tech support again and was told an area supervisor would come out and make it right. The two fictitious defendants (both of them area supervisors) arrived and engaged in the conduct on which Count I is based. (Doc. 40 at 12-14).

         The amended complaint divides the defendants into two groups: the “Comcast defendants” and the “Helmsman defendants.” (Doc. 40 at 2-3). The fictitious defendants are among the former group, while all three movants are in the latter group. (Id.). The amended complaint alleges that it was the “Comcast defendants, ” not the Helmsman defendants, that dispatched the area supervisors to the plaintiff's home. (Id. at 23; accord id. at 18-20).

         Count I's only reference to the Helmsman defendants is the allegation that they are “surrogates” for the Comcast defendants. (Doc. 40 at 4). A surrogate is “one appointed to act in the place of another” or “one that serves as a substitute.” Merriam Webster's Collegiate Dictionary 1187 (10th ed. 1994). While Count I thus may allege that the Helmsman defendants act for the Comcast defendants, it does not allege that the Comcast defendants act for the Helmsman defendants so as to even possibly implicate any concept of indirect liability.[6]

         In any event, as explained in the Court's order granting Comcast's motion to dismiss, (Doc. at), the amended complaint fails to state a claim of outrage based on the fictitious defendants' conduct.

         For the reasons set forth above, the Helmsman defendants' motion to dismiss Count ...

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