2:25-cv-01672•Wagner v. AT&T Services, Inc.
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA FREDDIE L. WAGNER, JR. CIVIL ACTION VERSUS NO. 25-1672 AT&T SERVICES, INC. SECTION: “P” (5) REPORT AND RECOMMENDATION Before the Court is the Motion to Dismiss Plaintiff’s Complaint Pursuant to FRCP 12(b)(6) for Failure to State a Claim (rec. doc. 11) filed by Defendant AT&T Services, Inc. (AT&T). Plaintiff, Freddie L. Wagner, filed an opposition and a supplemental opposition to the motion. (Rec. docs. 10, 13). Having reviewed the pleadings and the case law, the Court recommends as follows. I. Factual Background On July 16, 2025, pro se Plaintiff Freddie L. Wagner filed suit in the 21st Judicial District for the Parish of Tangipahoa. AT&T subsequently removed the matter to this Court based on diversity jurisdiction. (Rec. doc. 1). Plaintiff’s Complaint stems from an alleged trespass on his property at 40009 Olde Mill Lane in Ponchatoula, Louisiana on or about March 23, 2025. (Rec. doc. 1-1 at 4). Specifically, Plaintiff has alleged that an AT&T worker or contractor physically entered his locked, secured backyard without consent; performed unauthorized work; and caused visible property damage. (Id.). Plaintiff asserts a plethora of related harms including property damage, trespass and invasion of privacy, negligence and industry misconduct, and emotional distress and anguish. (Id. at 7-12). Plaintiff seeks monetary damages in the amount of $400,000.00 dollars. (Id. at 13). Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 1 of 13
2 II. Standard for a Motion to Dismiss Under Rule 12(b)(6) Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). It “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the claim must “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading does not comply with Rule 8 if it offers “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “‘naked assertions’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557) (alteration omitted). Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible on the face of the complaint “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. (citing Twombly, 550 U.S. at 556). Plausibility does not equate to probability, but rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “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. Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 2 of 13
3 (quoting Twombly, 550 U.S. at 557). Thus, if the facts pleaded in the complaint “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.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration omitted). When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court employs the two-pronged approach described in Twombly. Clofer v. Connick, No. CV 23-6268, 2024 WL 4855475 (E.D. La. Nov. 21, 2024), appeal dismissed, No. 25-30139, 2025 WL 2020968 (5th Cir. Apr. 29, 2025). The court “can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. However, “[w]hen 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. “‘[The] task, then, is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.’” Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 385 (5th Cir. 2017) (quoting Doe ex rel. Magee v. Covington Cty. Sch. Dist., 675 F.3d 849, 854 (5th Cir. 2012)). A court's review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)) (emphasis added). Courts “liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). This does not mean, however, that a court “will invent, out of whole Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 3 of 13
4 cloth, novel arguments on behalf of a pro se plaintiff in the absence of meaningful, albeit imperfect, briefing.” Jones v. Alfred, 353 F. App'x 949, 952 (5th Cir. 2009). Even a liberally- construed pro se complaint “must set forth facts giving rise to a claim on which relief may be granted.” Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993). III. Law and Analysis AT&T argues that each cause of action alleged by Plaintiff fails to establish factual allegations that raise his right to relief above the speculative level. (Rec. doc. 11-1 at 3). Plaintiff asserts the following causes of action against AT&T: (A) trespass; (B) negligence; (C) property damage; (D) invasion of privacy; (E) emotional distress; (F) unauthorized wiring, liability, and demands for subpoena testimony; (F-1) unauthorized wiring, liability, and demands for subpoena testimony;1 (F-2) pattern of deflection, proxies, and diversion; and (G) retaliation and civil rights violations related to protected reporting. (Rec. doc. 1-1).2 Defendant argues that each claim fails to provide a short and plain statement showing that Plaintiff is entitled to relief because each is speculative, lacks factual support, or accuses unconnected third parties of wrongdoing. (Rec. doc. 11-1 at 4). A. Trespass Regarding his trespass claim, Plaintiff alleges that Defendant, AT&T Services, Inc., through its agents or contractors, entered petitioner's private residential property without notice, consent, or legal justification. This unauthorized entry constitutes trespass under Louisiana law. AT&T had no recorded easement, no right-of-way authorization specific to petitioner's yard, and no permission from the homeowner. The intrusion extended beyond public access points and into petitioner's locked and secured 1 The paragraph numbers (i.e., F-1, F-2, etc.) correspond to those listed in Plaintiff’s Complaint. 2 The lettering is Plaintiff’s, taken from his Complaint. Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 4 of 13
5 backyard, a space known to be routinely restricted even to authorized personnel such as lawn care providers.3 (Rec. doc. 1-1 at 7) (footnote added). The primary elements of proof for trespass are (1) a physical invasion of (2) the plaintiff’s property by a defendant where (3) that invasion was unlawful. Turner v. Murphy Oil USA, Inc., 234 F.R.D. 597, 609 (E.D. La. 2006). Even taking Plaintiff’s allegations as true (that AT&T entered Plaintiff’s property at some point), public record indicates that Plaintiff’s property is encumbered by a utility easement both towards Highway 22 and in the rear of his property. (Rec. doc. 11-3). Plaintiff’s property is identified in his Cash Deed as Lot 1 in the Olde Mill Subdivision. (Rec. doc. 11-2). The attached plat of Olde Mill Subdivision identifies a “utility servitude” located on the side of Plaintiff’s property parallel to Highway 22 as well as a “utility parcel” in the rear 25 feet of Plaintiff’s property. (Rec. doc. 11-3). Access to a utility servitude is given to utility companies, such as AT&T, to install, maintain, and repair essential infrastructure like lines, cables, and equipment on private property for public benefit.4 As Louisiana law provides, the owner of the dominant estate has the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude. La. Civ. Code art. 745. The utility pole at question in the supplemental exhibit to his opposition (rec. doc. 13 at 1-2) is located on the boundary line of the property that falls within the recorded utility servitude and is considered part of that easement. 3 Of note, Plaintiff provides conflicting dates regarding this unauthorized entry. He claims he began noticing unauthorized utility work in or around his property on March 23, 2025. (See rec. doc. 1-1 at 4). However, he then states that fiber optic infrastructure was buried without petitioner’s knowledge, consent, or any formal notice back in 2024. (Id.). Although the alleged unauthorized fiber optic infrastructure work is the basis for his negligence claim, it seems also to be the overall incident at issue for each claim including trespass. (Id.). 4 A utility is a service, such as electricity, water, sewer, gas, telephone, cable, and power and communication networks, of the kind commonly used in the operation of an ordinary household, whether the service is provided to a household or business. La. Civ. Code art. 1281. Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 5 of 13
6 Merely because the utility pole is within Plaintiff’s fenced backyard does not mean it is not part of the utility servitude. Any installation at any time would have been within public utility right of way and therefore not a trespass. As such, an installation by AT&T would be considered preservation of the servitude. As recognized by Plaintiff, servitude rights “are to be exercised in a way least inconvenient for the servient estate.” La. Civ. Code art. 743. A utility company entering a private backyard for servitude use, even if inconvenient, is generally considered a normal, necessary part of exercising the servitude. See La. R.S. § 9:1282. Therefore, Plaintiff has failed to provide a sufficient claim for trespass because there was no unlawful invasion, and therefore there is no entitlement to relief. B. Negligence Next, Plaintiff alleges that AT&T acted negligently by failing to exercise reasonable care in verifying its right of access before conducting fiber optic infrastructure work. He further alleges that AT&T failed to notify him of its access, made no effort to confirm legal entry, and caused direct interference to his private property. Plaintiff claims there is currently a loose fiber optic wire near his residence that is unsecured and potentially hazardous. He also believes the area may contain live power sources, underground poles, or improperly-routed equipment that he claims would pose a danger to individuals and a continued disruption to his home. (Rec. doc. 1-1 at 4). To state a negligence claim under Louisiana law, a plaintiff must allege that (1) the defendant had a duty to conform his conduct to a specific standard; (2) the defendant's conduct failed to conform to that standard; (3) the defendant's conduct was the cause-in-fact of the plaintiff's injuries; (4) the defendant's conduct was a legal cause of the plaintiff's Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 6 of 13
7 injuries; and (5) actual damages. Alexis v. Hilcorp Energy Co., 493 F. Supp. 3d 497, 508 (E.D. La. 2020). Failure to plead a single element with factual plausibility warrants dismissal under Rule 12(b)(6). See Iqbal, 556 U.S. at 678. Here, Plaintiff has failed to allege that actual injury or damages occurred and that they were caused by AT&T. Instead, he points to hypothetical harm such as a “potentially hazardous” loose or exposed fiber optic wire. Additionally, his belief that the area may contain live power sources, underground poles, or improperly-routed equipment is a hypothetical harm of which Plaintiff has no actual knowledge. Accordingly, there is no actual injury or damage found in Plaintiff’s negligence allegations. Therefore, Plaintiff’s negligence claim fails. C. Property Damage Regarding his property damage claim Plaintiff alleges that [a]s a direct result of defendant's unauthorized entry, petitioner discovered a patched section of exterior brickwork, which was evaluated by a licensed masonry contractor and determined to be fresh and improperly repaired. Petitioner asserts that this damage is consistent with unauthorized digging or infrastructure intrusion. Coupled with ongoing electrical irregularities and unacknowledged equipment interference, these findings support petitioner's claim of physical damage and disruption to his residence. (Rec. doc. 1-1 at 7). As mentioned above, to survive a Rule12(b)(6) motion to dismiss, a complaint does not need detailed factual allegations, but plaintiffs do have an obligation to provide the “grounds” of their “entitle[ment] to relief” which requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements. Further, factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true. Twombly, 550 U.S. at 545. Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 7 of 13
8 Here, there are not enough facts to raise a reasonable expectation that discovery will reveal evidence that AT&T caused damage to Plaintiff’s property. There is no factual support that AT&T caused the need for patched brickwork. Instead, Plaintiff merely speculates that this damage is consistent with what he alleges occurred. Therefore, Plaintiff has failed to set forth a cause of action for property damage that raises a right to relief beyond the speculative level. D. Invasion of Privacy Plaintiff also claims that he experienced serious intrusion into the privacy and quiet enjoyment of his home due to unauthorized installation of infrastructure and the presence of residual EMF interference. He believes that these actions also contributed to surveillance- related violations5 that were amplified by AT&T’s failure to disclose the full scope of its activity. In Louisiana, the tort of invasion of privacy can occur in four ways: (1) by appropriating an individual's name or likeness; (2) by unreasonably intruding on physical solitude or seclusion; (3) by giving publicity which unreasonably places a person in a false light before the public; and (4) by unreasonable public disclosure of embarrassing private facts. Bednyak v. Fin. Risk Mitigation, Inc., 739 F. Supp. 3d 353, 372 (E.D. La. 2024) (citing Juge v. Springfield Wellness, L.L.C., 274 So. 3d at 8 (La. Ct. App. 2019) (citing Alessi v. Loehn, 76 So. 3d 1142, 1143 (La. 2011)). Here, Plaintiff has failed to raise any of the four ways in which invasion of privacy can occur. 5 Plaintiff provides an affidavit explaining incidents that led to his feelings of being surveilled and targeted by his neighbors. He also feels as if there could be collaboration between local law enforcement and nearby residents. Plaintiff explains that these incidents align with a broader pattern of increased surveillance, harassment, and institutional misconduct. (Rec. doc. 1-1). Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 8 of 13
9 Even if the installation of infrastructure occurred, such an installation is not considered an unreasonable intrusion on Plaintiff’s physical solitude. As previously mentioned, a utility company such as AT&T has the authority to manage and preserve a utility servitude. Again, Plaintiff’s belief that the actions of AT&T contributed to surveillance- related violations is hypothetical harm based on a conspiracy theory. Even so, the allegations in this case still lack the proper factual support because it is altogether unclear how an outdoor cable installation could lead to a “serious intrusion into the privacy and quiet enjoyment of his home.” Plaintiff’s invasion of privacy claim lacks the proper factual allegations to meet any of the requirements offered by Louisiana law. E. Emotional Distress Plaintiff further alleges that he has endured prolonged mental anguish, stress, and emotional hardship because of AT&T’s conduct, which includes the lack of transparency, refusal to provide justification, and dismissive communication by company representatives. “For a cause of action for intentional or negligent infliction of emotional distress, there must be proof that the defendant violated some legal duty to the plaintiff, and the plaintiff must meet the heavy burden of proving outrageous conduct by the defendant.” Succession of Harvey v. Dietzen, 716 So. 2d 911, 917 (La. Ct. App. 1998). “[P]laintiff must show an ‘especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.’” Doerr v. Mobil Oil Corp., 935 So.2d 231, 237 (La. Ct. App. 2006) (quoting Moresi v. State Through Dep't of Wildlife and Fisheries, 567 So. 2d 1081, 1096 (La. 1990)). Here, there is no allegation of outrageous conduct at all in Plaintiff’s Complaint. Lack of transparency, refusal to provide justification, and dismissive communications by company Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 9 of 13
10 representatives simply cannot be considered outrageous conduct that would meet the requirements of a negligent infliction of emotional distress claim. And again, any installation by AT&T was justified by way of its utility servitude. It is again unclear from Plaintiff’s Complaint how the outdoor installation of fiber optic infrastructure from a utility company could lead to “endured, prolonged mental anguish.” Accordingly, Plaintiff fails to assert a claim for any infliction of emotional distress beyond mere belief or speculation. F. Other Claims Finally, the remainder of Plaintiff’s Complaint (subparagraphs F through G) fails to set forth a cause of action and instead makes allegations about a hypothetical conspiracy that are completely irrelevant to any trespass claim. First, Plaintiff requests that this Court subpoena representatives from AT&T, Charter Communications (Spectrum), and Entergy to explain whether they are the utility company responsible for installation of a live line connected to Petitioner’s AT&T box and telecom junction box. He is interested in this information because he claims to rely exclusively on cellular data and has no landline or wired telecom of any kind. (Rec. doc. 1-1 at 9-12). Further, Plaintiff seeks to inquire whether surveillance or covert data transmission could occur through such infrastructure and whether such installation poses any electric or public safety hazard to the homeowner. (Id.). Here, Plaintiff offers no factual support for his belief that AT&T installed wiring without authorization. Instead, he wants to use this Court to find out whether the line connected to his AT&T box and telecom junction could be used for the purposes of surveillance or covert data and whether he has a claim against AT&T to bodily harm. These inquiries are based upon pure speculation with no other foundation and do not present a valid claim; they are completely irrelevant to any trespass claim. Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 10 of 13
11 Second, Plaintiff believes that the act of deflection of topic during a conversation by an AT&T technician when asked about the unauthorized telecom wiring, cable routing, and tampered infrastructure supports the conclusion that contractors tied to these institutions are aware of the “sabotage,” but are attempting to minimize liability or redirect scrutiny. (Id.). Plaintiff does not make a valid claim here because he states these facts as observations that he wants the Court to understand and not as a claim to which he is entitled to relief. Third, Plaintiff claims that following the reporting of child sexual abuse material, he observed a distinct and disturbing change in how he was treated by local law enforcement and surrounding institutions. (Id.). Further, he alleges that he began to experience increased surveillance, deliberate intimidation, and a campaign of psychological manipulation and retaliation designed to discredit and destabilize him. (Id.). These allegations involve entities other than AT&T and do not implicate or support a trespass claim. Further, AT&T does not control local law enforcement. Even accepting these allegations as true, there is no cause of action against AT&T based upon them. For all other claims (subparagraphs F through G), Plaintiff has failed to allege sufficient facts outside of conspiracy and inquiry that properly amount to a claim for relief. Thus, Plaintiff has asserted no legally cognizable claims. G. Leave to Amend The Federal Rules of Civil Procedure provide that leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). However, leave to amend is “by no means automatic.” Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). Instead, the decision to grant or deny leave is one left to the sound discretion of the trial court. In deciding whether leave should be granted, the district court can consider Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 11 of 13
12 factors such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party . . . [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “When the dismissal of a pro se complaint is appropriate, it should generally be done without prejudice in order to allow the plaintiff an opportunity to file an amended complaint.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 423 (5th Cir. 2017) (emphasis added) (citation omitted). “However, a district court may dismiss with prejudice if the plaintiff has been given adequate opportunity to cure the inadequacies in his pleading or if the pleadings ‘demonstrate that the plaintiff has pleaded his best case.’” Id. (quoting Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986) and citing Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009)). Here, Plaintiff was given no “opportunity to cure the inadequacies in his pleading.” Id. And the pleadings demonstrate that he has not pleaded his best case. Plaintiff has not been able to plead crucial elements of a plausible claim because he lacked the necessary facts to allege a claim that is plausible on its face. “With the benefit of more specific allegations, [Plaintiff] may be able to state a claim.” Id. at 423-24. Thus, “the general rule that dismissal should be without prejudice applies.” Id. at 424. The Court therefore recommends that Plaintiff be allowed to amend his Complaint no later than 30 days from any dispositive action by the District Judge. RECOMMENDATION For the foregoing reasons, IT IS RECOMMENDED that the Motion to Dismiss Plaintiff’s Complaint Pursuant to FRCP 12(b)(6) for Failure to State a Claim (rec. doc. 11) be GRANTED. Plaintiffs’ claims Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 12 of 13
13 should be DISMISSED WITHOUT PREJUDICE for failure to state a claim, and he should be allowed 30 days within which to amend his Complaint. NOTICE OF RIGHT TO OBJECT A party’s failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge’s report and recommendation within 14 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United States Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). New Orleans, Louisiana, this __________ day of __________________, 2026. ____________________________________ MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE February 2nd Case 2:25-cv-01672-DJP-MBN Document 20 Filed 02/03/26 Page 13 of 13
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