Fiorani v. Hewlett Packard Corp. et al
MEMORANDUM OPINION re 1 Complaint. Signed by Judge Richard G. Andrews on 4/26/2013. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
a/k/a Rosario A. Fiorani,
Civ. No. 13-121-RGA
HEWLETT PACKARD CORP., et al.,
Ross Fiorani, Kingstowne, Virginia. Pro Se Plaintiff.
Plaintiff Ross Fiorani of Kingstowne, Virginia, filed this action raising state and
federal claims. He appears pro se and has been granted leave to proceed in forma
pauperis. (D. I. 5.) The Court proceeds to review and screen the Complaint pursuant to
28 U.S.C. § 1915(e)(2).
Plaintiff is a frequent filer in the federal courts. His practice of filing frivolous
lawsuits in the United States District Court for the Northern District of Virginia resulted in
a prefiling injunction that prohibits him from "filing [ ] actions in federal district court
without prior leave of court." See Fiorani v. Chrysler-Dodge Corp., 2011 WL 1085034,
at *1 (E. D. Va. May 12, 2000). Plaintiff filed the instant complaint on January 22, 2013.
It contains fifteen counts, all related to the purchase of computers. On March 12, 2012,
Plaintiff filed a similar complaint in the United States District Court for the Northern
District of California, San Francisco Division, Fiorani v. Hewlett-Packard, Civ. No. 121240-JST, followed by a nearly identical amended complaint on January 22, 2013. The
California case remains pending. Because Plaintiff proceeds pro se, his pleading is
liberally construed and his Complaint, "however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks omitted).
This Court must dismiss, at the earliest practicable time, certain in forma
pauperis actions that are frivolous or malicious. See 28 U.S.C. § 1915(e)(2). The
Court must accept all factual allegations in a complaint as true and take them in the
light most favorable to a prose plaintiff. See Phillips v. County of Allegheny, 515 F .3d
224, 229 (3d Cir. 2008).
An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a
court may dismiss a complaint as frivolous if it is "based on an indisputably meritless
legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario.
Neitzke, 490 U.S. at 327-28. "A separate standard for maliciousness is not as well
established." Abdui-Akbarv. DepartmentofCorr., 910 F. Supp. 986 (D. Del. 1995),
aff'd, 111 F.3d 125 (3d Cir. 1997). A court that considers whether an action is malicious
must, in accordance with the definition of the term "malicious," engage in a subjective
inquiry into the litigant's motivations at the time of the filing of the lawsuit to determine
whether the action is an attempt to vex, injure, or harass the defendant. See Deutsch
v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995). Other circuits have offered more
objective instances of malicious claims. For example, a complaint is malicious when it
"duplicates allegations of another federal lawsuit by the same plaintiff." Pittman v.
Moore, 980 F.2d 994, 995 (5th Cir. 1993). See also Harper v. Rudek, 487 F. App'x 467
(101h Cir. 2012).
The claims Plaintiff raise in this District Court were raised by him in the case he
filed in 2012 in the United States District Court for the Northern District of California. An
in forma pauperis complaint that duplicates allegations of another pending federal
lawsuit by the same plaintiff should be dismissed as malicious. See Pittman, 980 F.2d
at 994-95. The Court finds that the instant Complaint falls squarely in the category of
malicious litigation. Therefore, the Complaint will be dismissed as malicious pursuant to
28 U.S.C. § 1915(e)(2)(B)(i).
An appropriate order will be entered.
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