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to Proceed In Forma Pauperis on an outdated form not prescribed for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 Perhaps Plaintiff utilized the outdated form to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 Aug. 4, 2014) (unpublished) (dismissing Plaintiff’s case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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