United States District Court

for the

Southern District of Florida

Geron Brown, Plaintiff,

v.

Metro by T-Mobile, Defendant.

)

)

)

)

)

Civil Action No. 22-22369-Civ-Scola

Order

This matter is before the Court on Defendant T-Mobile USA, Inc. d/b/a 

Metro by T-Mobile’s motion to dismiss. (ECF No. 8.) Plaintiff Geron Brown failed 

to timely respond to T-Mobile’s motion to dismiss. After careful consideration of 

the briefing, the record, and the relevant legal authorities, the Court grants the 

Defendant’s motion. (ECF No. 8.)

1. Background

Plaintiff Geron Brown, proceeding pro se, alleges that Defendant T-Mobile 

negligently failed to secure his personal data, including his “PIN, password, and 

email,” as well as his “medical records,” from a third-party hacker. (Compl., ECF 

No. 1-1, ¶¶ 4-5.) The data breach in question occurred on March 13, 2022. (Id.

¶ 4.) The Plaintiff seeks $25,500,000 in damages for this data breach. (Id. ¶ 1.)

Defendant T-Mobile removed this case from Florida state court on July 28, 

2022, based on diversity jurisdiction over the Plaintiff’s negligence claim (Not. of 

Removal, ECF No. 1) and now moves to dismiss the complaint for failure to state 

a claim upon which relief may be granted. (Mot. at 1.) 

2. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil 

Procedure 12(b)(6), must accept all of the complaint’s allegations as true, 

construing them in the light most favorable to the plaintiff. See Pielage v. 

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only 

contain a short and plain statement of the claim showing that the pleader is 

entitled to relief, a plaintiff must nevertheless articulate “enough facts to state a 

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007). “But where the well-pleaded facts do not permit the court to 

infer more than the mere possibility of misconduct, the complaint has alleged—

but it has not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 

U.S. 662, 679 (2009) (internal punctuation omitted) (quoting Fed. R. Civ. 

P. 8(a)(2)). A court must dismiss a plaintiff’s claims if she fails to nudge her 

“claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

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Regardless of a plaintiff’s allegations, “the court may dismiss a complaint 

pursuant to Federal Rule of Civil Procedure 12(b)(6) when, on the basis of a 

dispositive issue of law, no construction of the factual allegations will support the 

cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 

1171, 1174 (11th Cir. 1993). 

3. Analysis

As an initial matter, the Court can, and does, grant the motion to dismiss 

based on the Plaintiff’s failure to respond to the motion at all. See Local Rule 

7.1(c) (“each party opposing a motion shall file and serve an opposing 

memorandum of law no later than fourteen (14) days after service of the motion. 

Failure to do so may be deemed sufficient cause for granting the motion by

default.”); see also, e.g., Bradshaw v. Integon Nat'l Ins. Co., No. 19-24806-CIV, 

2019 WL 6716364, at *1 n.1 (S.D. Fla. Dec. 10, 2019) (Scola, J.) (“Bradshaw’s 

failure to respond to the complaint constitutes an independent basis to dismiss 

the complaint.”). The Plaintiff failed to respond to the motion by the original 

deadline of August 18, 2022 and failed again to respond to the motion despite the 

Court’s entry of an order requiring a response to the motion not later than August 

30, 2022. (Order, ECF No. 11.) This Order alerted the Plaintiff to the possibility 

that his complaint would be dismissed if he failed to respond. (Id.) The Plaintiff 

did not comply with the Order, but instead filed two discovery requests with the 

Court on August 30. (Mots., ECF Nos. 12, 13.) 

For reasons of judicial efficiency, the Court will also briefly address TMobile’s arguments in its motion to dismiss. T-Mobile argues that Florida does 

not recognize “a common law duty to safeguard information from a criminal 

cyberattack.” (Mot. At 3.) The determination of a duty is ultimately a legal 

question for courts to resolve, and the Court declines to adopt such a duty in the 

absence of Florida case law expounding it. See, e.g., Virgilio v. Ryland Grp., Inc., 

680 F.3d 1329, 1339-41 (11th Cir. 2012) (declining to impose a duty on sellers of 

residential lots regarding disclosure of knowledge affecting fair market value 

where “the [p]laintiffs have found nothing to support such a holding in the Florida 

case law.”). Because the Plaintiff bases his sole claim for negligence on such a 

duty, the complaint also fails to state a claim upon which relief may be granted as 

a matter of law. See, e.g., id. 

4. Conclusion

For the reasons stated above, the Court grants T-Mobile’s motion to 

dismiss (ECF No. 8.) The case is dismissed without prejudice, and with leave to 

file a new civil action. The Clerk is directed to close this case. Any pending 

motions are denied as moot.

Case 1:22-cv-22369-RNS Document 17 Entered on FLSD Docket 09/08/2022 Page 2 of 3
Done and ordered in Miami, Florida, on September 8, 2022.

________________________________

Robert N. Scola, Jr.

United States District Judge

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