EMRIT v. REVERB NATION, INC.

Filing 3

MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed 12/16/2014, re: 1 Application to Proceed IFP and 2 Complaint filed by RONALD SATISH EMRIT. It has been concluded that Plaintiff frivolously at tempts to invoke this Court's subject matter jurisdiction. Moreover, Plaintiff's Complaint fails to state a claim. Therefore the Court should dismiss this action. IT IS THEREFORE ORDERED that Plaintiff's Application to Procee d In Forma Pauperis 1 is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. IT IS RECOMMENDED that Plaintiff's Complaint 2 be dismissed under 28 U.S.C. § 1915(e)(2)(B) for frivolousness and failure to state a claim. Objections to R&R due by 1/2/2015. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RONALD SATISH EMRIT,
Plaintiff,
v.
REVERBNATION, INC.,
Defendant.

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1:14CV1014

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application to
Proceed In Forma Pauperis (Docket Entry 1) in conjunction with his
Pro

Se

Complaint

(Docket

Entry

2).1

The

Court

will

grant

Plaintiff’s Application to Proceed In Forma Pauperis for the

1

The undersigned notes that Plaintiff filed his Application
to Proceed In Forma Pauperis on an outdated form not prescribed for
use in this district. Compare Docket Entry 1 with United States
District Court for the Middle District of North Carolina, IFP
Application - Application to Proceed in Forma Pauperis &
Affidavit/Declaration in Support, http://www.ncmd.uscourts.gov
/forms/ifp-application-application-proceed-forma-pauperisaffidavitdeclaration-support. Plaintiff’s Application to Proceed
In Forma Pauperis does not contain any explanation of his expenses,
thereby preventing the undersigned from accurately assessing his
financial status. Perhaps Plaintiff utilized the outdated form to
avoid such questions and to avoid a possible denial of in forma
pauperis status - as he has suffered before, numerous times, see,
e.g., Emrit v. Yahoo! Inc., No. 4:13-cv-06951, 2014 WL 3841015
(N.D. Cal. Aug. 4, 2014) (unpublished) (dismissing Plaintiff’s case
with prejudice for intentionally misrepresenting his financial
condition on his Application to Proceed In Forma Pauperis); Emrit
v. Bank of Am., Inc., No. 3:13cv547-RJC-DSC (W.D.N.C. Oct. 10,
2013) (unpublished) (denying Plaintiff’s Application to Proceed In
Forma Pauperis), aff’d, 556 Fed. Appx. 265 (4th Cir. 2014). Given
the recommendation of dismissal, the Court need not address this
issue further, but Plaintiff should understand that the Court may
scrutinize his financial status in the future, if necessary.

limited purpose of recommending dismissal for frivolousness and
failure to state a claim.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts solely because
his poverty makes it impossible for him to pay or secure the
costs.”
Cir.

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th

1995)

(en

banc)

(internal

“Dispensing

with

filing

fees,

quotation

however,

[is]

marks
not

omitted).

without

its

problems. . . . In particular, litigants suing in forma pauperis
d[o] not need to balance the prospects of successfully obtaining
relief against the administrative costs of bringing suit.” Nagy v.
FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004).

To address this

concern, the in forma pauperis statute provides that “the court
shall dismiss the case at any time if the court determines . . .
(B) the action . . . (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief
relief.”

against

a

defendant

who

is

immune

from

such

28 U.S.C. § 1915(e)(2).

As to the first of these grounds, the United States Supreme
Court has explained that “a complaint, containing as it does both
factual allegations and legal conclusions, is frivolous where it
lacks an arguable basis either in law or in fact.”

2

Neitzke v.

Williams, 490 U.S. 319, 325 (1989).

In assessing such matters,

this Court may “apply common sense.”

Nasim, 64 F.3d at 954; see

also Nagy, 376 F.3d at 256 (“The word frivolous is inherently
elastic and not susceptible to categorical definition.”

(internal

quotation marks omitted)).
As to the second ground, a plaintiff “fails to state a claim
upon which relief may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii),
when the complaint does not “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the
line

between

relief.’”

possibility

and

plausibility

of

‘entitlement

Id. (quoting Twombly, 550 U.S. at 557).

to

This standard

“demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”

Id.

In other words, “the tenet that a court must

accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”

2

Id.2

Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se 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 citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly's requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
3

FACTUAL BACKGROUND
Plaintiff’s Complaint stems from his dealings with Defendant
in

the

placement

of

banner

ads

on

the

internet

advertising

Plaintiff’s song and music video, “Lady Brazil.” (Docket Entry 2.)
Plaintiff alleges that he paid Defendant to place banner ads,
featuring a picture of him with Mariah Carey, on various webpages.
(Id. at 5-6.) Plaintiff states that, if individuals clicked on the
ad, it would then direct them to a webpage, hosted by Defendant,
showing

Plaintiff’s

music

video

for

“Lady

Brazil.”

(Id.)

Plaintiff avers that the banner ads automatically renewed each
week, unbeknownst to him, and Defendant charged him at a rate
between $20 to $40 weekly.

(Id.)
ANALYSIS

Plaintiff alleges nine state-law claims in his Complaint.
(Docket Entry 2 at 7-17.)

Plaintiff premises jurisdiction on

diversity of citizenship.

(Id. at 3-5.)

However, Plaintiff

frivolously invokes this Court’s subject matter jurisdiction and
fails

to

establish

that

this

jurisdiction over this case.

Court

possesses

subject

matter

Alternatively, Plaintiff fails to

state a claim for any of his state-law claims.

Therefore, the

Court should dismiss Plaintiff’s case.

(internal quotation marks omitted) (dismissing pro se complaint).
4

A.

Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction.” Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

The

burden of establishing jurisdiction rests on the party asserting
it.

Id.

Federal courts have jurisdiction to hear civil actions

where complete diversity exists between the parties and the amount
in controversy exceeds $75,000.

28 U.S.C. § 1332.3

“In most

cases, the ‘sum claimed by the plaintiff controls’ the amount in
controversy determination.”

JTH Tax, Inc. v. Frashier, 624 F.3d

635, 638 (4th Cir. 2010) (quoting St. Paul Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 288 (1938)).

When computing the amount

in controversy, the Court may also include punitive damages.

See

Gordon v. National Bus. Consultants, Inc., No. 87-2676, 856 F.2d
186 (table), 1988 WL 86618, at *1 (4th Cir. 1998) (unpublished);
Perez v. Choice Endeavors, Inc., No. 1:05CV526, 2006 WL 995128, at
*2 (M.D.N.C. April 12, 2006) (unpublished).

However, if the

plaintiff cannot, to a legal certainty, recover the jurisdictional
amount, then the Court lacks jurisdiction.

St. Paul Mercury, 303

U.S. at 289.
In this case, Plaintiff alleges that he lost somewhere between
$100 to $200 dollars in his dealings with Defendant.4

Despite the

3

The Complaint adequately alleges complete diversity between
the parties. (See Docket Entry 2 at 2-5.)
4

In his Complaint, Plaintiff states that he paid between $20
to $40 a week for five weeks to Defendant for the banner ads.
5

low amount of compensatory damages, Plaintiff requests $250,000 in
punitive damages in order to meet the amount in controversy.
(Docket Entry 2 at 17.)

North Carolina General Statute § 1D-15

prohibits courts from awarding punitive damages for breach of
contract, but courts may award punitive damages when the actions in
a breach of contract also give rise to a tort, see Newton v.
Standard Fire Ins. Co., 291 N.C. 105, 111, 229 S.E.2d 297, 301
(1976).
Plaintiff, though, does not present a viable claim for any of
his alleged torts - as discussed in the next section.

Thus,

Plaintiff does not have a basis with which to claim punitive
damages, and the Court can only look to Plaintiff’s compensatory
damages to determine the amount in controversy.

Furthermore, even

if Plaintiff could recover punitive damages on a tort, he could
not, consistent with the Due Process Clause of the Fourteenth
Amendment, recover the amount in controversy.

As explained to

Plaintiff in a previous case, see Emrit v. American Commc’ns
Network, Inc., No. 1:13-cv-0076, 2014 WL 5389910, at *2 (M.D.N.C.
April 2, 2014) (unpublished), aff’d, 583 Fed. Appx. 46 (4th Cir.
2014), the United States Constitution imposes limits on punitive
damage awards, State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 416 (2003).

In State Farm, the United States Supreme Court

(Docket Entry 2 at 5-6.) Multiplying the number of weeks by the
amount of money yields the foregoing range of numbers.
6

invalidated a punitive damages award of 145 times the amount of
compensatory damages.

Id.

The Court also warned that damages

“exceeding a single-digit ratio between punitive and compensatory
damages” would rarely satisfy due process.

Id. at 425.

In this case, Plaintiff seeks punitive damages totaling 1250
times more than his claimed compensatory damages.5

Indeed, even if

Plaintiff only claimed punitive damages of $75,000, the resulting
ratio of 375 to one would still run afoul of the Due Process
Clause. It therefore appears, to a legal certainty, that Plaintiff
cannot satisfy the amount in controversy threshold, and thus, the
Court lacks subject matter jurisdiction over the case. Because the
Plaintiff’s claim of subject matter jurisdiction “lacks an arguable
basis [] in law,” Neitzke, 490 U.S. at 325, the Court should
dismiss this case as frivolous, see Overstreet v. Colvin, No.
4:13CV261-FL, 2014 WL 353684, at *3 (E.D.N.C. Jan. 30, 2014)
(unpublished) (Flanagan, J., adopting recommendation of Gates,
M.J.) (holding that courts may consider subject matter jurisdiction
as part of frivolity review).6

5

This ratio uses the higher end of the possible compensatory
damages Plaintiff claims. See footnote four.
6

In any event, the Court has an independent obligation to
examine the existence of subject matter jurisdiction. Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006).
7

B.

Failure to State a Claim
In addition to Plaintiff’s frivolous invocation of subject

matter jurisdiction, the Court could dismiss Plaintiff’s claims for
failure to state a claim.

Although Plaintiff’s claims suffer from

a number of defects, the undersigned, for the sake of brevity, will
focus on but a few.

First, Plaintiff’s negligence claim fails

because North Carolina does not recognize a negligence claim
predicated on a breach of contract. See North Carolina State Ports
Auth. v. Lloyd A. Fry Roofing Co., 294 N.C. 73, 81, 240 S.E.2d 345,
350 (1978), rejected in part on other grounds, Trustees of Rowan
Technical Coll. v. J. Hyatt Hammond Assocs., Inc., 313 N.C. 230,
242, 328 S.E.2d 274, 281 (1985).

Second, Plaintiff’s conversion

claim fails because the Complaint does not include facts showing
that Defendant lacked the right to charge Plaintiff for the banner
ads, as required by North Carolina law, see Variety Wholesalers,
Inc. v. Salem Logistics Traffic Servs., LLC, 365 N.C. 520, 523, 723
S.E.2d 744, 747 (requiring an “unauthorized” or “wrongful” taking
to establish conversion).
Third,

Plaintiff’s

(See Docket Entry 2 at 5-6.)
claim

for

intentional

infliction

of

emotional distress cannot proceed because Defendant’s failure to
secure a “‘360 deal’ or ‘commercial recording contract for []
[P]laintiff from a major record label through the implementation of
a

successful

‘banner

ad’

campaign

all

over

the

internet

on

commercial websites” (Docket Entry 2 at 10) does not amount to

8

extreme and outrageous conduct.

See Guthrie v. Conroy, 152 N.C.

App. 15, 21, 567 S.E.2d 403, 408 (2002) (holding that intentional
infliction of emotional distress requires conduct that “exceeds all
bounds usually tolerated by decent society,” and that the court
determines whether conduct met that standard (internal quotation
marks removed)).

Fourth, Plaintiff’s civil fraud/deceit/material

misrepresentation claim fails because the Complaint does not allege
that Defendant made any material misrepresentation about securing
a “360 deal” or “commercial recording contract” for Plaintiff in
connection

with

the

contract,

again,

as

North

Carolina

law

requires, see Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d
494, 500 (1974) (establishing elements of fraud and requiring
false representation of “material fact”).
Fifth,

Plaintiff’s

claim

for

(See Docket Entry 2.)

tortious

interference

with

business relations/contracts claim fails because the Complaint does
not satisfy North Carolina law’s requirement that Plaintiff had an
existing contractual relationship with a major record label and
that Defendant intentionally interfered with it, see United Labs.,
Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988).
(See

Docket

Entry

2.)

Sixth,

Plaintiff’s

claim

of

strict

liability/design defect fails because North Carolina does not
recognize a claim for strict product liability, DeWitt v. Eveready
Battery Co., 355 N.C. 672, 688, 565 S.E.2d 140, 150 (2002), and

9

because the Complaint alleges Defendants provided a defective
service and not a defective product (Docket Entry 2 at 13).
Seventh, and finally, Plaintiff’s various breach of contract
claims all fail because the Complaint does not allege that securing
a “360 deal” or “commercial recording contract” constituted a term
of the contract - or that any contract existed.

(See id.)

For

these reasons, the Court should dismiss Plaintiff’s case for
failure to state a claim.
C.

Frivolous and Vexatious Filer
A

review

of

filings

located

in

PACER

demonstrate

that

Plaintiff has a habit of frivolous and vexatious filing. According
to records accumulated by PACER, Plaintiff has filed over sixty
lawsuits since March of 2013.7

Plaintiff’s cases tend to proceed

in a similar manner: Plaintiff files a complaint, requests in forma
pauperis status, files various irrelevant motions, and then the
court dismisses his case.

Plaintiff’s litigation history clearly

demonstrates his vexatious behavior and its frivolousness.

In

fact, other courts have warned Plaintiff regarding his frivolous

7

By the undersigned’s count, in the district court cases
listed on PACER (sixty-eight), Plaintiff applied for in forma
pauperis status or to proceed without prepayment of fees
approximately sixty-five times (including this case). In the cases
listed as closed, district courts dismissed Plaintiff’s claims for
failure to state a claim or frivolousness at least seventeen times.
The majority of the remaining dismissals concerned transfers to
other district courts, failure to pay the filing fee, lack of
subject matter jurisdiction, and other procedural issues. In other
words, it appears Plaintiff has yet to have any success with his
litigation.
10

and vexatious filing and have considered sanctioning him for such
behavior.

See Emrit v. American Commc’ns Network, Inc., 583 Fed.

Appx. 46 (4th Cir. 2014); Emrit v. Music Gorilla, Inc., No. A-14CV-927-LY, 2014 WL 5524162, at *4 (W.D. Tex. Oct. 31, 2014)
(unpublished); Emrit v. South by Sw. Conference (SXSW), No. 1:14CV-936-LY, 2014 WL 5524219, at *4 (W.D. Tex. Oct. 31, 2014)
(unpublished), adopted by, slip op. (Docket Entry 14) (W.D. Tex.
Nov. 25, 2014).
Courts have the inherent authority to impose sanctions on
litigants. See Chambers v. NASCO, Inc., 501 U.S. 32, 46-47 (1991);
see also Armstrong v. Koury Corp., 16 F. Supp. 2d 616, 620
(M.D.N.C. 1998) (“Courts have the authority to protect defendants
from the harassment of frivolous and vexatious lawsuits, and to
protect themselves from having to process frivolous and repetitive
papers.”).

Further,

courts

have

substantial

discretion

in

fashioning an appropriate sanction for litigants, including a
prefiling injunction.

Armstrong, 16 F. Supp. 2d. at 620.

Given

the seriousness of a prefiling injunction, that remedy “must be
used sparingly . . . .”

Cromer v. Kraft Foods N. Am., Inc., 390

F.3d 812, 817 (4th Cir. 2004).
undersigned

will

not

injunction,

but

will

recommend
warn

In these circumstances, the
the

Plaintiff

issuance
that

of

a

prefiling

further

frivolous

litigation may result in the issuance of an injunction.

11

CONCLUSION
Plaintiff frivolously attempts to invoke this Court’s subject
matter jurisdiction.
state a claim.
IT

IS

Moreover, Plaintiff’s Complaint fails to

Therefore, the Court should dismiss this action.

THEREFORE

ORDERED

that

Plaintiff’s

Application

to

Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE
LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION
OF DISMISSAL.
IT IS RECOMMENDED that Plaintiff’s Complaint (Docket Entry 2)
be dismissed under 28 U.S.C. § 1915(e)(2)(B) for frivolousness and
failure to state a claim.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 16, 2014

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