Christian v. Frank Bommarito Olds, Inc. et al

Filing 6

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. 2] is GRANTED. IT IS HEREBY ORDERED that plaintiffs motion to appoint counsel [Doc. 4] is DENIED as moot. IT IS FURTHER ORDERED that the Clerk shall n ot issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 3/14/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRED E. CHRISTIAN,
Plaintiff,
v.
FRANK BONMARITO OLDS, INC.,
et al.,
Defendants.

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No. 4:13CV464 JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Fred Christian for leave to
commence this action without prepayment of the filing fee pursuant to 28 U.S.C.
§ 1915. Upon consideration of the financial information provided with the motion,
the Court finds that plaintiff is financially unable to pay any portion of the filing fee.
As a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. Additionally, the Court has reviewed the complaint and will
dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint
filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune

from such relief. An action is frivolous if it “lacks an arguable basis in either law or
fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S.
25, 31 (1992). An action is malicious if it is undertaken for the purpose of harassing
the named defendants and not for the purpose of vindicating a cognizable right.
Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff’d 826 F.2d 1059
(4th Cir. 1987). A complaint fails to state a claim if it does not plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).
The Complaint
Plaintiff brings this action under Rule 60(b)(3) as an “Independent action in
equity.” Plaintiff sued the same defendants in 2008 for employment discrimination
under Title VII. See Christian v. Bonmarito Infiniti, 4:08CV1423 JCH (E.D. Mo.).
The case went to a jury, and on November 19, 2009, the jury returned its verdict in
favor of defendants. Id. Plaintiff appealed, and on November 29, 2010, the United
States Court of Appeals for the Eighth Circuit affirmed the decision of this Court. Id.
Plaintiff now seeks relief from the 2009 judgment based on his contention that
“Defendants committed fraud upon the Court and prevented Plaintiff from presenting
his case by misrepresenting during motion in limine hearing.” Plaintiff makes no
other statements and alleges no other facts.
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Discussion
Pursuant to Rule 60(c)(1), “A motion under Rule 60(b) must be made within
a reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry
of the judgment or order or the date of the proceeding.” This cause of action under
Rule 60(b)(3) comes more than one year after the jury entered judgment in favor of
defendants. As a result, it is untimely.
Moreover, plaintiff’s allegations are wholly conclusory and fail to allege any
facts, which if proved, would entitle him to relief. As a result, the complaint fails to
state a claim upon which relief can be granted.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 2] is GRANTED.
IT IS HEREBY ORDERED that plaintiff’s motion to appoint counsel [Doc.
4] is DENIED as moot.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint because the complaint is legally frivolous or fails
to state a claim upon which relief can be granted, or both.

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An appropriate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 14th day of March, 2013.

/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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