Wolpert v. Disney ABC Broadcasting Corporation et al

Filing 19

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/6/2020 RECOMMENDING that plaintiff's second amended complaint (ECF No. 18 ) be dismissed without leave to amend, and the Clerk be directed to close the case. Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID ALEXANDER WOLPERT,

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Plaintiff,

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No. 2:18-cv-299-KJM-EFB PS

v.

FINDINGS AND RECOMMENDATIONS

DISNEY ABC BROADCASTING
CORPORATION, NBC CORPORATION,
Defendants.

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The court previously granted plaintiff’s application to proceed in forma pauperis, but
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dismissed his complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). ECF No.
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13. Plaintiff was granted leave to file an amended complaint. Shortly after filing a first amended
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complaint, plaintiff filed a document styled as “Addendum: Amended Complaint,” which the
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court construes as a second amended complaint.1 ECF No. 18. As discussed below, the second

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amended complaint also fails to state a claim and must be dismissed.
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As previously explained to plaintiff, although pro se pleadings are liberally construed, see
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Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be
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dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief
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The addendum includes the allegations contained in the first amended complaint, plus a
few additional allegations. Accordingly, the court construes this recent filing as a second
amended complaint.
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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

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conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual

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allegations must be enough to raise a right to relief above the speculative level on the assumption

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that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate

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based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to

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support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990).

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Under this standard, the court must accept as true the allegations of the complaint in

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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading

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requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a

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complaint to include “a short and plain statement of the claim showing that the pleader is entitled

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to relief, in order to give the defendant fair notice of what the claim is and the grounds upon

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which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Consistent with the original complaint, the second amended complaint has a curious

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premise. It alleges that the television show Saturday Night Live aired a sketch based on

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plaintiff’s relationship with a friend. ECF No. 18 at 1. It also alleges that in an episode from Late

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Night with Seth Meyers, a character was depicted that had similarities to plaintiff. Id. For

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instance, plaintiff claims the character wore an orange hoodie, and that it is commonly known that

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plaintiff also wears an orange hoodie. Id. at 1-2. The character also allegedly said a joke that was

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nearly verbatim to a joke plaintiff posted on social media. Id. at 2. Plaintiff further alleges that

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the show “Fresh Off the Boat” included a character with the same first name as plaintiff. Id. He

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also alleges that in the show “The Goldberg’s,” a song was played that was remarkably “similar

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to an original song that [plaintiff] posted” on YouTube. Id. Plaintiff appears to allege a claim for

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defamation against defendants Disney-ABC Broadcasting and NBC Broadcasting. Plaintiff also
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cites to 28 U.S.C. § 4101 and claims that defendants used his likeness to disparage him and his

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standing in his community. Id. at 1-3.

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Plaintiff’s allegations fail to state a claim for relief. The statute he relies on, 28 U.S.C.

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§ 4101(1), does not create a cause of action. It defines “defamation” for judicial proceedings

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where the court is asked to enforce or recognize a foreign judgment for defamation. But it does

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not provide a private cause of action for defamation. See Nahum v. Boeing Comp., 2020 WL

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1627150, at *4 n.5 (W.D. Wash. Apr. 2, 2020). Furthermore, plaintiff’s allegations do not

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concern a foreign judgment.

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Nor has plaintiff sufficiently alleged facts that would establish a state law defamation

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claim. Under California law, to state a defamation claim a plaintiff must allege: (1) “the

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intentional publication” of (2) “a statement of fact” that (3) is “false” (4) “unprivileged,” and (5)

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“has a natural tendency to injure or which causes special damage.” Smith v. Maldonado, 72 Cal.

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App. 4th 637, 645 (1999). The second amended complaint does not allege that defendants

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intentionally published a false statement of fact.

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More significantly, plaintiff fails to establish subject matter jurisdiction over his state law

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claim. He has not allege a federal cause of action that would permit supplemental jurisdiction

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over his defamation claim. See 28 U.S.C. §§ 1331 (“The district courts shall have original

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jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United

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States), 1367(a) (where the district court has original jurisdiction, it “shall have supplemental

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jurisdiction over all other claims that are so related to claims in the action within such original

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jurisdiction . . . .”). Nor has he alleged that the parties’ citizenship is diverse, and therefore fails

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to establish diversity jurisdiction over his state law claim. See 28 U.S.C. § 1332; Bautista v. Pan

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American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (to establish diversity

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000).

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Accordingly, plaintiff’s second amended complaint must be dismissed. Further, the court

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finds that granting further leave to amend would be futile. Plaintiff has already been afforded an

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opportunity to amend to cure these defects, and his allegations continue to fall far short of stating
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a cognizable claim. Consequently, it is recommended that the dismissal be without further leave

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to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (while the court ordinarily

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would permit a pro se plaintiff to amend, leave to amend should not be granted where it appears

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amendment would be futile).

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Accordingly, it is hereby RECOMMENDED that plaintiff’s second amended complaint

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(ECF No. 18) be dismissed without leave to amend, and the Clerk be directed to close the case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 6, 2020.

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