Cobarrubia v. Keefe Grp.

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LUIS COBARRUBIA, Plaintiff, v. KEEFE GROUP, LLC., Defendant.

No. 22-cv-0194 MV-GBW

United States District Court, D. New Mexico

March 30, 2023

MEMORANDUM OPINION AND ORDER

HONORABLE MARTHA VAZQUEZ SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant's Motion to Dismiss or for a More Definite Statement (Doc. 2) (Motion). Defendant, a prison commissary provider, argues that Plaintiff's pro se Prisoner Complaint for Violations of the Unfair Practices Act and Price Discrimination Act (Doc. 1-1) (Complaint) fails to state a cognizable claim and/or provide sufficient facts. Having reviewed the matter under 28 U.S.C. § 1915A and Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court will deny the Motion, in part, and direct Defendant to answer certain the cognizable claim.

I. Background

Plaintiff is currently incarcerated at the Lea County Correctional Facility (“LCCF”). See Doc. 1-1 at 4. Defendant Keefe Group, LLC sells Android tablets to the inmates at LCCF. Id. Plaintiff purchased a tablet which contains an application (or “app”) called Media Store. Id. The Media Store app states that the price for each song is $1.70. Id. The Media Store app further states that the price “includes [the] content price, download fee, taxes, and commission.” Id. Inmates purchase media time from the commissary, which they can use to download music. Id. To purchase songs, the inmates must place their selection in the Media Store app's shopping cart and then connect the tablet to a kiosk within LCCF. Id. Any music in the inmates' shopping cart is automatically downloaded upon connecting the tablet to the kiosk, assuming that the inmate has sufficient funds to cover the purchase. Id.

Plaintiff purchased about 2,622 songs through the Media Store app. See Doc. 1-1 at 4. He alleges that he is charged $1.90 for each song, rather than the advertised price of $1.70. Id. Plaintiff states that he cannot request a refund, although the reason is unclear. Id. The Complaint further alleges that Defendant pays the New Mexico Corrections Department (“NMCD”) a commission on all sales of tablets, media time, commissary goods, and prepaid phone credits. Id. NMCD purportedly does not provide a service in connection with the sales but acts as an agent on behalf of the inmates.

Based on these facts, Plaintiff raises claims under New Mexico's Unfair Practices Act, N.M.S.A. § 57-12-1, et. seq., (“NMUPA”) and New Mexico's Price Discrimination Act, § 57-141, et. seq. (“NMPDA”). He seeks at least $786,000 in damages from one Defendant: Keefe Group, LLC. See Doc. 1-1 at 3. Plaintiff originally filed the Complaint in New Mexico's Fifth Judicial District Court. Id. Defendant removed the Complaint to this Court based on diversity jurisdiction and filed the instant Motion to Dismiss. See Doc. 1 (citing 28 U.S.C. §§ 1332, 1441(b)); Doc. 2. Plaintiff filed a response (Doc. 3), and the matter is ready for review.

II. Standard of Review

Under Rule 12(b)(6), the Court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). When considering a Rule 12(b)(6) motion, the Court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. See Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009), cert. denied, 558 U.S. 1148 (2010).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). As Iqbal explained:

a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679.

Where, as here, the defendant seeks a more definite statement, relief is only available when the pleading “is so vague or ambiguous that a party cannot reasonably” craft a response. Fed.R.Civ.P. 12(e); see also 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1376 (3d ed. 2022) (Rule 12(e) applies when the pleading is “so vague or ambiguous that the opposing party cannot respond-even with a simple denial-in good faith, without prejudice to him [or her]self”). “Motions for more definite statements under Rule 12(e) ... are generally not favored by the courts because of the liberal pleading requirements embodied in Rule 8(a).” Mullins v. I. C. Sys., Inc., 2007 WL 1795871, at *2 (D. Colo. June 21, 2007). “If the opposing party is able to determine the issues he [or she] must respond to, the pleading is sufficient.” Id.

Finally, because Plaintiff is pro se, his “pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. While pro se pleadings are judged by the same legal standards as others, the Court can overlook the “failure to cite proper legal authority, . confusion of various legal theories, ., or . unfamiliarity with pleading requirements.” Id. Moreover, if the initial complaint fails to state a claim, courts should generally grant leave to amend unless amendment would be futile. Id.

III. Discussion

Construed liberally, the Complaint raises claims for deceptive pricing under the NMUPA and price discrimination/unlawful commissions under the NMPDA. The Court will address each claim below.

A. The Complaint States a Claim Under NMUPA

The NMUPA makes “unfair or deceptive trade practices ... in the conduct of any trade or commerce” unlawful. N.M.S.A § 57-12-3. Generally, the NMUPA is designed to “provide a remedy against misleading identification and false or deceptive advertising.” Lohman v. DaimlerChrysler Corp., 166 P.3d 1091, 1096 (N.M. App. 2007). See also Diversey Corp. v. Chem-Source Corp., 965 P.2d 332, 338 (N.M. App. 1998) (“The gravamen of an unfair trade practice is a misleading, false, or deceptive statement made knowingly in connection with the sale of goods or services.”).

To state a claim under the NMUPA, the plaintiff must allege: “(1) [the] defendant made an oral or written statement that was either false or misleading; (2) the false or misleading representation was knowingly made in connection with the sale of goods or services; (3) the conduct complained of occurred in the regular course of defendant's business; and (4) the representation may, tends to, or does deceive or mislead any person.” Mulford v. Altria Grp., Inc., 242 F.R.D. 615, 621 (D.N.M. 2007); Lohman, 166 P.3d at 1093. “The ‘knowingly made' requirement is met if a party was actually aware that the statement was false or misleading when made, or in the exercise of reasonable diligence should have been aware that the statement was false or misleading.” Stevenson v. Louis Dreyfus Corp., 811 P.2d 1308, 1311-12 (N.M. 1991).

Construed liberally, the Complaint alleges that Defendant sold a device for purchasing music as part of its commissary service, knowingly advertised the price for each song as $1.70, and instead charged inmates $1.90 per song. The Complaint further alleges that the advertised price purports to include “content price, download fee, taxes, and commission,” suggesting that there may not be a legitimate reason for the higher price. Doc. 1-1 at 4. Accepted as true, the allegations show that Defendant falsely advertised the price of music downloads to inmates, in the course of its commissary business, and in a way that would mislead the average person. The Complaint therefore states a claim under the NMUPA.

Defendant argues that Plaintiff should provide a more definite statement, at a minimum, because the Complaint does not include facts relevant to the statute of limitations and other defenses. Defendant also notes that the Complaint does not delineate the elements of Plaintiff's claims identify what advertisements existed or how they were false, or identify the date of any music purchase. As to the statute of limitations, courts can require a more definite statement “when a specific date could support a dispositive defense motion.” Casanova v. Ulibarri, 595 F.3d 1120, 1125-26 (10th Cir. 2010). However, such requests can be denied when the “matter sought is a proper subject for discovery” or where “the movant has knowledge of the information sought.” Id. (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1376 at 336 (3d ed. 2004) and 2 James Wm. Moore, Moore's Federal Practice ¶ 12.36[3] (3d ed. 2009)). Plaintiff contends that his new tablet does not reflect the date of all prior purchases. See Doc. 3 at 3-4. He further alleges that Defendant, as the commissary provider, can access that information. Id. The Court agrees that Defendant is likely better situated to access records regarding inmates' media purchases. The Court therefore declines to require Plai...