United States District Court, D. Connecticut
Elizabeth Schipke, Plaintiff, Pro se, Milford, CT.
Frederick J. Pollak, President of Safelink Wireless, Inc,
Tracfone Wireless, Inc., doing business as Safelink Wireless
doing business as Lifeline, Defendants: Aaron S. Weiss, LEAD
ATTORNEY, PRO HAC VICE, Carlton Fields Jorden Burt, P.A. -
FL, Miami, FL; John Warren Herrington, Carlton Fields Jorden
Burt, P.A., Hartford, CT.
R. Underhill, United States District Judge.
Elizabeth Schipke, appearing pro se, brought this
action in Connecticut state court against TracFone Wireless
and its president, Frederick J. Pollak. The defendants
removed the action to federal court on the basis of federal
question jurisdiction. There are currently three pending
motions: Schipke's motion for a preliminary injunction
(doc. # 10); her motion for an expedited ruling (doc. # 23);
and the defendants' motion for judgment on the pleadings
(doc. # 8). Schipke's motion for an expedited ruling,
insofar as it seeks a ruling on her motion for a preliminary
injunction (but in no other respect), is granted in the form
of the ruling that follows. For the reasons discussed below,
her motion for a preliminary injunction is denied and the
defendants' motion for judgment on the pleadings is
Standard of Review
Rule 12(c) Judgment on the Pleadings
The standard for granting a Rule 12(c) motion for judgment on
the pleadings is identical to that of a Rule 12(b)(6) motion
for failure to state a claim." Patel v. Contemporary
Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir.
2001). Pursuant to that standard, the defendants' motion
will be granted only if " it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations." Hishon v. King &
Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59
(1984). When deciding a motion to dismiss for failure to
state a claim pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, I must accept the material facts alleged
in the complaint as true, draw all reasonable inferences in
favor of the plaintiff, and decide whether the plaintiff has
set forth a plausible claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 677-80, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009); Bell A. Corp. v. Twombly, 550 U.S. 544,
555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Rule 65(a) Preliminary Injunction
The fundamental purpose in granting preliminary injunctive
relief has always been to preserve the court's ability to
later render a meaningful final decision on the merits by
preventing irreparable harm in the interim." H & R
Block Eastern Tax Services, Inc. v. Brooks, 3:00-cv-1332
(JCH), 2000 WL 33124809 *2 (D. Conn. 2000). A preliminary
injunction is appropriate if a litigant demonstrates: "
(1) that it will be irreparably harmed in the absence of an
injunction, and (2) either (a) a likelihood of success on the
merits or (b) sufficiently serious questions going to the
merits of the case to make them a fair ground for litigation,
and a balance of hardships tipping decidedly in its
favor." Forest City Daly Housing, Inc. v. Town of
North Hempstead, 175 F.3d 144, 149 (2d Cir. 1999).
" In ruling on an application for a preliminary
injunction or temporary restraining order, the courts have
taken into account the following four most important factors:
(1) the significance of the threat of irreparable harm to the
plaintiff if the injunction is not granted; (2) the state of
the balance between the aforementioned harm and the harm that
granting the injunction would inflict on the opposing party;
(3) the probability that the plaintiff will succeed on the
merits; and (4) the public interest." Minnesota
Mining & Mfg. Co. v. Francavilla, 191 F.Supp.2d 270, 277
(D. Conn. 2002); Phillip v. National Collegiate Athletic
Ass'n, 960 F.Supp. 552 (D. Conn. 1997).
Lifeline federal benefit program--conceived as means of
ensuring the availability of basic telecommunications
services for all Americans--provides subsidized (and
sometimes free) telephone service to qualifying individuals
and families with low incomes. Lifeline is administered by
the Universal Service Administrative Company and overseen by
the Federal Communications Commission (" FCC" ),
but the telephone service itself (which may be landline
service or, since 2005, cellphone service) is provided by
various third parties. TracFone is one such wireless provider
that participates in Lifeline as an " eligible
telecommunications carrier" (" ETC" ) with its
was a beneficiary of the Lifeline program and user of a
Safelink cellphone until TracFone terminated her service. She
alleges that TracFone terminated her service because she is
homeless, and that doing so therefore violated her state and
federal Constitutional rights, the Americans with
Disabilities Act, and Connecticut's Homeless Person's
Bill of Rights.
has promulgated regulations implementing the Lifeline
program, and among them is a requirement that ETCs ensure
" that their Lifeline subscribers are eligible to
receive Lifeline services." 47 C.F.R. § 54.410(a).
In order to receive Lifeline benefits, subscribers must
establish eligibility both upon enrollment and annually
thereafter by providing certain information to their ETC. 47
C.F.R. § 54.410. The FCC also requires ETCs to de-enroll
any subscriber who fails to respond to the carrier's
attempts to obtain re-certification. 47 C.F.R. §
subscribers are limited to one phone per household, and in
order to enforce that limitation and to detect fraud and
waste, the FCC requires that subscribers provide a
residential address to establish eligibility. 47 C.F.R.
§ 54.410(d)(4). Of course, because the program serves
people with (often severely) limited financial resources, the
FCC anticipates that some will not have ...