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Davut Kilinc v. Tracfone Wireless Inc Delaware Company and Aaron Weiss

December 27, 2010


The opinion of the court was delivered by: McVerry, J.


Pending before the Court is DEFENDANT AARON WEISS' MOTION TO DISMISS WITH PREJUDICE (Document No. 5). Defendant has filed a Memorandum of Law in support of the motion (Document No. 6). The pro se Plaintiff in this case, Davut Kilinc, has filed "Plaintiff Davut Kilinc's Rejection to Motion to Dismiss With Prejudice of Defendant Aaron Weiss" (Document No. 10), as well as several exhibits. Defendant's motion is ripe for disposition.

Factual and Procedural Background

Plaintiff describes himself as a "Turkish businessman" and explains that he is unfamiliar with the laws of the United States. The document which has been construed as a civil Complaint is styled in the form of a letter from Mr. Kilinc, "for and on behalf of Anadisk LLC." In the Complaint, Mr. Kilinc alleges that he was arrested by police officers on "9/27/201"*fn1 and placed in jail for five days. Plaintiff alleges that he was subsequently detained by immigration authorities for 45 days, until his release on bond. It is unclear from the Complaint how these allegations are connected to either of the two named Defendants. The Court gleans from Kilinc's response to the pending motion that he accuses Defendants of having engineered his detention.

Kilinc alleges that while he was in jail, the "Company" (presumably, Defendant Tracfone Wireless, Inc.) ("Tracfone") initiated legal proceedings which alleged that Kilinc and Anadisk LLC were selling and cloning Tracfone products, "flashing," and changing its trademarks. Kilinc avers that his bank accounts have been frozen, that there was a writ of garnishment, that the Company tried to get his properties, and that the Company charged him $12,375,000 in claims. Kilinc denies the Company's allegations of wrongdoing. Plaintiff summarizes: "They destroyed My life and business" and he seeks $100,000,000 in compensation from Tracfone and its lawyer, Aaron Weiss. Attached to the Complaint are what appear to be portions of various filings in the case of Tracfone Wireless, Inc. v. Anadisk LLC and Davut Kilinc, Case No. 09-23670-Civ-King, in the United States District Court for the Southern District of Florida. The Court takes judicial notice that on February 18, 2010 Senior United States District Judge James Lawrence King entered a 26-page Final Judgment and Permanent Injunction in favor of Tracfone and against Anadisk, LLC and Kilinc.

The exhibits submitted by Kilinc (Document No. 9) provide additional explanation of his arrest, his discovery that his accounts had been frozen, and the physical injuries he allegedly suffered as a result, which include kidney, urination problems, memory loss, and "very big, bad affect on my brain, eyes, teeth, left side of chest." The only attached medical record reflects that Kilinc suffered a hernia. The exhibits also reflect that Kilinc filed for bankruptcy under Chapter 7 (Case No. 10-27907) on November 5, 2010.

Plaintiff's response to the motion to dismiss (Document No. 10) denies that Anadisk LLC sold, unlocked, reflashed or trafficked in Tracfone's products and accuses Defendants of "fake evidence." Plaintiff further accuses Defendants of having caused his detention by immigration authorities. Apparently, Kilinc's theory is that after he is deported, Defendants will seize his assets. Finally, attached as an exhibit is a letter which purports to be from two employees of Anadisk, LLC, Doris Roak and Patricia Roak. In essence, the Roaks aver that they have lost their jobs and are facing serious economic consequences, which they attribute to Defendants. The Roaks seek "compensation for me and for my family and kid $1,000,000 from above company and lawyer who makes lots of money with such fake evidences."

Defendant Weiss has filed Notice that a Miscellaneous case (Case No. 10-mc-177) is pending between these parties in this judicial district before Senior District Judge Donetta W. Ambrose.*fn2 In that Miscellaneous Action, Tracfone sought to compel Kilinc to appear at a deposition. On July 6, 2010, Judge Ambrose entered an Order which held Kilinc in contempt of Court and issued a warrant for his arrest and detention until Kilinc agreed to testify at his deposition. On August 26, 2010, Judge Ambrose entered an Order which vacated her July 6 order, and noted that Kilinc had purged himself of contempt by completing his deposition. The Order of Court also reflects that Kilinc was released to a detainer filed by Immigration Customs Enforcement.

Legal Analysis

The pending motion argues, pursuant to Fed. R. Civ. P. 12(b)(5), that the Complaint has not been properly served. Defendants also contend, pursuant to Fed. R. Civ. P. 12(b)(6), that the Complaint should be dismissed with prejudice because it fails to state a cognizable claim and is patently frivolous. The Court will address both of these arguments.

As a preliminary matter, Kilinc is only permitted to assert claims on his own behalf. Anadisk, LLC is apparently a corporation. Therefore, it cannot proceed as a pro se litigant. See Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993). Moreover, only an attorney may represent the interests of a corporation in a federal court. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 883 (3d Cir. 1991). Nor may Kilinc, a non-attorney, represent the interests of Doris Roak and Patricia Roak or assert claims on their behalf. Kilinc is the only proper Plaintiff in this case, and to the extent that he is attempting to assert claims on behalf of Anadisk, LLC, Doris Roak and Patricia Roak, such claims are DISMISSED WITH PREJUDICE.

A. Improper Service

Defendant Weiss is an associate at a law firm in Florida and has served as an attorney on behalf of Defendant Tracfone. Weiss has submitted an Affidavit (Exhibit E) in which he avers that he received one document in this case via certified mail at his work address. Defense counsel represents that Tracfone has not been served at all, and therefore has not responded to the Complaint. Weiss contends that service has been improper because: (1) the method of mail service did not require a receipt signed by him; and (2) he did not receive two separate documents which constituted the Summons and Complaint.

If the validity of service is challenged, the party claiming valid service (in this case, Kilinc) bears the burden of proof. Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476 (3d Cir. 1993) (citing 4A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure ยง 1083 (1987)). Although Fed. R. Civ. P. 4 is to be construed liberally, the ...

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