Toussaint v. Apple Inc. et al

Filing 4

MEMORANDUM & ORDER -- As set forth in the attached Memorandum & Order, Toussaint v. Lyft, No. 23-CV-03750 (DG) (LB), Toussaint v. Home Depot, No. 23-CV-03751 (DG) (LB), Toussaint v. Bank of America, No. 23-CV-03752 (DG) (LB), and Toussaint v. Apple Inc., No. 23-CV-03753 (DG) (LB) are consolidated for the purpose of this Order; Plaintiff's requests to proceed in forma pauperis are granted; the Complaints are dismissed without prejudice, see 28 U.S.C. 1406(a); and Plaintiff is directed to SHOW CAUSE, in writing, by June 23, 2023, why he should not be enjoined from filing any new action seeking in forma pauperis status without first obtaining leave of Court. The Court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore denies in forma pauperis status for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment accordingly and to mail a copy of this Order to Plaintiff. Ordered by Judge Diane Gujarati on 6/2/2023. (KA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
Fritz Gerald Toussaint,
Plaintiff,
-against-

MEMORANDUM & ORDER
23-CV-03750 (DG) (LB)

Lyft,
Defendant.
---------------------------------------------------------------X
Fritz Gerald Toussaint,
Plaintiff,
-against-

23-CV-03751 (DG) (LB)

Home Depot,
Defendant.
---------------------------------------------------------------X
Fritz Gerald Toussaint,
Plaintiff,
-against-

23-CV-03752 (DG) (LB)

Bank of America,
Defendant.
---------------------------------------------------------------X
Fritz Gerald Toussaint,
Plaintiff,
-againstApple Inc., iCloud, and iTunes,
Defendants.
---------------------------------------------------------------X
DIANE GUJARATI, United States District Judge:

23-CV-03753 (DG) (LB)

On May 18, 2023, Plaintiff Fritz Gerald Toussaint, proceeding pro se, filed the four
above-captioned actions, raising various – largely difficult to decipher – allegations against the
various Defendants. 1 Also on May 18, 2023, Plaintiff requested leave to proceed in forma
pauperis in each of the four above-captioned actions. 2
The Court grants Plaintiff’s requests to proceed in forma pauperis in the four abovecaptioned actions and consolidates the four above-captioned actions solely for the purpose of this
Order.
For the reasons set forth below, (1) the Complaints in the four above-captioned actions
are dismissed; and (2) Plaintiff is directed to show cause, by June 23, 2023, why he should not
be enjoined from filing any new action seeking in forma pauperis status without first obtaining
leave of Court.
BACKGROUND
On March 17, 2023, the Court issued a Memorandum & Order in Toussaint v. Institute
for Family Health, No. 23-CV-01745 (DG) (LB) (the “March 17, 2023 Memorandum & Order”),
in which the Court, inter alia, (1) set forth the applicable standard of review; (2) dismissed the
Complaint in the case in its entirety for failure to state a claim on which relief may be granted,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); (3) granted Plaintiff leave to file an Amended
Complaint by April 17, 2023; (4) set forth Plaintiff’s litigation history, which included the filing

1

See Toussaint v. Lyft, No. 23-CV-03750 (DG) (LB), Complaint, ECF No. 1; Toussaint v. Home
Depot, No. 23-CV-03751 (DG) (LB), Complaint, ECF No. 1; Toussaint v. Bank of America,
No. 23-CV-03752 (DG) (LB), Complaint, ECF No. 1; Toussaint v. Apple Inc., No. 23-CV03753 (DG) (LB), Complaint, ECF No. 1.

2

See Toussaint v. Lyft, No. 23-CV-03750 (DG) (LB), ECF No. 2; Toussaint v. Home Depot, No.
23-CV-03751 (DG) (LB), ECF No. 2; Toussaint v. Bank of America, No. 23-CV-03752 (DG)
(LB), ECF No. 2; Toussaint v. Apple Inc., No. 23-CV-03753 (DG) (LB), ECF No. 2.
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of more than 30 cases in the United States District Court for the Eastern District of New York
since February 2022; (5) advised Plaintiff that the United States Court of Appeals for the Second
Circuit has stated that “[i]f a litigant has a history of filing vexatious, harassing or duplicative
lawsuits, courts may impose sanctions, including restrictions on future access to the judicial
system;” and (6) cautioned Plaintiff “to be mindful of a court’s ability to impose sanctions –
including restrictions on future access to the judicial system – when Plaintiff is deciding whether
to file additional lawsuits in the United States District Court for the Eastern District of New
York.” See generally Toussaint v. Institute for Family Health, No. 23-CV-01745, ECF No. 4. 3
Familiarity with the March 17, 2023 Memorandum & Order is assumed herein.
Since the issuance of the Court’s March 17, 2023 Memorandum & Order, Plaintiff has
continued to file new actions in the United States District Court for the Eastern District of New
York, including the four above-captioned actions pending before the undersigned. 4
In light of Plaintiff’s pro se status, the Court liberally construes the Complaints in the
four above-captioned actions. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Toussaint v. Lyft, No. 23-CV-03750 (DG) (LB)
The Complaint in Toussaint v. Lyft, No. 23-CV-03750 (DG) (LB) appears to allege that
Defendant Lyft interfered with Plaintiff’s “research” using “apps” and “human intelligence” that
“led it to start a business with Hertz” in violation of “equal protection” and the First and Fourth

3

By Order dated May 19, 2023, the Court dismissed the case in light of Plaintiff’s failure to file
an Amended Complaint or to take any action in the case following the issuance of the March
17, 2023 Memorandum & Order.

4

Another case post-dating issuance of the March 17, 2023 Memorandum & Order is pending
before the Honorable Nina R. Morrison of the United States District Court for the Eastern
District of New York. See Toussaint v. Chase Bank, No. 23-CV-03749 (NRM) (LB) (filed
May 16, 2023).
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Amendments.
Plaintiff seeks, inter alia, “797 billion British pounds,” “all data gathered,” “all
recordings,” “all notes” and “email,” and “discovery.”
Plaintiff alleges that he is domiciled in the State of California and that Defendant is a
citizen of the State of California. Plaintiff does not allege that any events or omissions giving
rise to any claim occurred in the Eastern District of New York.
Toussaint v. Home Depot, No. 23-CV-03751 (DG) (LB)
The Complaint in Toussaint v. Home Depot, No. 23-CV-03751 (DG) (LB) appears to
allege that Defendant Home Depot “manipulated credit ratings,” “blocked entry to the payment
portal,” “caused its representatives to not be available such that payment could not be posted,”
and added “high fees on [Plaintiff’s] account.”
Plaintiff seeks punitive damages of “47333111.77 million euros,” compensatory damages
of “3,33,773111.47 million euros,” and “a letter of apology from Home Depot Credit Services
General Counsel and its CEO.” 5
Plaintiff alleges that he is domiciled in the State of California and that Defendant is a
citizen of the State of Georgia. Plaintiff does not allege that any events or omissions giving rise
to any claim occurred in the Eastern District of New York.
Toussaint v. Bank of America, No. 23-CV-03752 (DG) (LB)
The Complaint in Toussaint v. Bank of America, No. 23-CV-03752 (DG) (LB) appears to
allege that Defendant Bank of America “deprived” Plaintiff of a “bank ATM card” and changed

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The damages amounts quoted above are taken from the “Relief” section of the Complaint. In
the “Amount in Controversy” section, Plaintiff indicates a punitive damages amount of
“37,111,333.77 million euros” and a compensatory damages amount of “13,777,337.11 million
euros.”
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his mailing address on bank documents “to an address [he] didn’t give them as a method of
depriving [him] of equal protection specifically to avoid regulation.” Plaintiff seeks “discovery”
and “one million three hundred thirty three GBP.” 6
Plaintiff alleges that he is domiciled in the State of California and Plaintiff lists an
address in Charlotte, North Carolina as Defendant’s address. Plaintiff does not allege that any
events or omissions giving rise to any claim occurred in the Eastern District of New York.
Toussaint v. Apple Inc., No. 23-CV-03753 (DG) (LB)
The Complaint in Toussaint v. Apple Inc., No. 23-CV-03753 (DG) (LB) appears to allege
that Defendant Apple Inc. “denied” Plaintiff access to its iCloud platform “using subversive
method and falsehoods” while he was “developing technology” so that he “wouldn’t disrupt its
business model through [his] creations.”
Plaintiff seeks, inter alia, “discovery,” “immediate establishment of a compensation
fund,” “13 billion British pound sterling,” and “3 billion HTG (Gourdes).”
Plaintiff alleges that he is a citizen of the State of California and Plaintiff lists an address
in Cupertino, California as the address for Defendants. Plaintiff does not allege that any events
or omissions giving rise to any claim occurred in the Eastern District of New York.
DISCUSSION
Title 28, United States Code, Section 1391(b) (“Section 1391(b)”), in relevant part,
provides that a civil action may be brought in “(1) a judicial district in which any defendant
resides, if all defendants are residents of the State in which the district is located” or “(2) a
judicial district in which a substantial part of the events or omissions giving rise to the claim

6

The amount quoted above is taken from the “Relief” section of the Complaint. In the “Amount
in Controversy” section, Plaintiff indicates an amount of “one million four hundred thirty three
HTG.”
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occurred.”
Title 28, United States Code, Section 1406(a) (“Section 1406(a)”) provides that “[t]he
district court of a district in which is filed a case laying venue in the wrong division or district
shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.” “When considering whether a transfer would serve the
interest of justice, [the court] must weigh ‘the equities of dismissing a claim when it could be
transferred.’” Ruiz v. Mukasey, 552 F.3d 269, 276 (2d Cir. 2009) (quoting Liriano v. United
States, 95 F.3d 119, 122 (2d Cir. 1996)). The decision “whether to dismiss or transfer a case
‘lies within the sound discretion of the district court.’” See Blakely v. Lew, 607 F. App’x 15, 18
(2d Cir. 2015) (quoting Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993)).
Here, in each of the four above-captioned actions, venue does not properly lie in the
Eastern District of New York as Plaintiff has not satisfied either of the relevant requirements of
Section 1391(b): Plaintiff does not allege that any Defendant resides in the Eastern District of
New York and does not allege that any events or omissions giving rise to any claim occurred in
the Eastern District of New York. See generally Complaints.
The Court declines to transfer any of the four above-captioned actions to another judicial
district as transfer would not be in the interest of justice. Each of the four Complaints, even
liberally construed, fails to state a claim on which relief may be granted. 7
The Complaints are dismissed without prejudice. See 28 U.S.C. § 1406(a).

7

Indeed, the Complaints appear to be frivolous. See Lamb v. Cuomo, 698 F. App’x 1, 2 (2d Cir.
2017) (“A claim is frivolous ‘where it lacks an arguable basis either in law or in fact.’”)
(quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)); Hakaniemi v. Zuckerberg, No. 21CV-04345, 2021 WL 3566221, at *1 (E.D.N.Y. Aug. 12, 2021).
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ORDER TO SHOW CAUSE
Plaintiff is again advised that the United States Court of Appeals for the Second Circuit
has stated that “[i]f a litigant has a history of filing vexatious, harassing or duplicative lawsuits,
courts may impose sanctions, including restrictions on future access to the judicial system.” See
Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (quotation marks omitted); see also Safir
v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986) (discussing factors district courts should
consider in determining whether or not to restrict a litigant’s future access to the courts, which
factors include, inter alia, the litigant’s motive in pursuing the litigation and whether the litigant
has posed an unnecessary burden on the courts and their personnel).
Further, in light of Plaintiff’s litigation history and the resulting burden on the resources
of the United States District Court for the Eastern District of New York; the Court’s warning in
the March 17, 2023 Memorandum & Order as to a court’s ability to impose sanctions, including
restrictions on future access to the judicial system; and Plaintiff’s filing of the above-captioned
new actions, Plaintiff is directed to SHOW CAUSE, in writing, by June 23, 2023, why he should
not be enjoined from filing any new action seeking in forma pauperis status without first
obtaining leave of Court.
Plaintiff is warned that should Plaintiff fail to respond to this Order to Show Cause, such
failure will result in the issuance of an order enjoining Plaintiff from filing any new action
seeking in forma pauperis status without first obtaining leave of Court.
Plaintiff is further warned that should Plaintiff respond to this Order to Show Cause but
fail in such response to provide good cause for why an order enjoining him from filing any new
action seeking in forma pauperis status without first obtaining leave of Court should not issue,

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such failure also will result in the issuance of an order enjoining him from filing any new action
seeking in forma pauperis status without first obtaining leave of Court.
CONCLUSION

Plaintiff’s requests to proceed in forma pauperis in the four above-captioned actions are
granted.
For the reasons set forth above, the Complaints in the four above-captioned actions are
dismissed without prejudice. See 28 U.S.C. § 1406(a). The Clerk of Court is directed to enter
judgment accordingly.
Plaintiff is directed to SHOW CAUSE, in writing, by June 23, 2023, why he should not
be enjoined from filing any new action seeking in forma pauperis status without first obtaining
leave of Court. Plaintiff’s response must be filed in the lead case, No. 23-CV-03750 (DG) (LB).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore denies in forma pauperis status for the purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to mail a copy of this Order to Plaintiff.
SO ORDERED.
/s/ Diane Gujarati
__
DIANE GUJARATI
United States District Judge
Dated: June 2, 2023
Brooklyn, New York

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