Burgess v. Eforce Media, Inc. et al

Filing 30

Burgess v. Eforce Media, Inc. et al

Doc. 30

Case 1:07-cv-00231-LHT-DLH

Document 30

Filed 07/26/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA A SH E V IL L E DIVISION 1 :0 7 c v2 3 1 C . BURGESS, P la in t i f f , V s. E F O R C E MEDIA, INC.; WIZARD H O L D IN G , INC.; ADKNOWLEDGE, IN C .; BASEBALL EXPRESS, INC.; A L L E N -E D M O N D S SHOE C O R P O R A T IO N ; INTERSEARCH G R O U P , INC.; TRUSCO M A N U F A C T U R IN G COMPANY; P R IC E G R A B B E R .C O M , INC.; SH O P ZI L L A , INC.; DAZADI, INC.; a nd SIX THREE ZERO E N T E R P R ISE S, LLC, D e f e n d a n ts . _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

O RDER

T H IS MATTER is before the court on Allen-Edmonds Show Corporation's M otion to Dismiss (#27). Inasmuch as plaintiff is proceeding pro se, the court will p rovid e certain procedural advice in accordance with Roseboro v. Garrison, 528 F.2d 3 0 9 (4th Cir. 1975), inasmuch as the instant motion seeks involuntary termination of this action with prejudice. (1 ) P la intif f is advised that his earlier attempt to take a voluntary dismissal
-1-

Dockets.Justia.com

Case 1:07-cv-00231-LHT-DLH

Document 30

Filed 07/26/2007

Page 2 of 4

of this action under Rule 41, Federal Rules of Civil Procedure, was inef f ec tua l inasmuch as one of the defendants, Pricegrabber.com, Inc., ha d already filed an Answer (see Docket Entry #11); (2 ) if plaintiff wishes to now dismiss this case, he1 has two options under R ule 41 remaining: he can either get the consent of all parties to entry of a dismissal, or he can move this court to dismiss this action. Plaintiff is a d vised that anything less than dismissal with prejudice is unlikely to bear f ruit inasmuch as all defendants appear to have already retained counsel a nd expended resources in gearing up for this action; and (3) is cautioned that he carries a heavy burden in responding to a motion to d ismiss for failure to state a cause of action. Rule 12(b)(6), Federal Rules of Civil Procedure, provides for dismissal where a party has failed to state a cause of action as a matter of law. In responding to the motion to d is m i ss, plaintiff must show that he has stated a cause of action for inva sion of privacy, trespass, and that a cause of action for "illegal"

The court respectfully assumes that "C. Burgess" is one and the same p erson as Mr. Albert Charles Burgess, Jr., of Hendersonville, North Carolina, who ha s been a litigant in this court on a number of occasions. See 1:02cv280; 3 :8 6 c v5 0 3 . Indeed, the signatures and P.O. Box numbers match in this case and in 1 :0 2 c v2 8 0 .
-2-

1

Case 1:07-cv-00231-LHT-DLH

Document 30

Filed 07/26/2007

Page 3 of 4

c ond uc t is recognized as a matter of law. Further, plaintiff must show this court that he has alleged facts that would support his prayer for p unitive damages, such as that defendant has perpetrate a fraud, engaged ma lic ious acts, or otherwise acted in a willful or wanton manner to th d etriment of plaintiff. Finally, plaintiff is advised that if he fails to resp ond to defendant's motion, the court will summarily recommend that his claim be dismissed with prejudice. Plaintiff is further advised that this advice applies to all previously filed motions to dismiss that have not b een resolved by a stipulation of dismissal with such party

O RDER IT IS, THEREFORE, ORDERED that plaintiff file his response to defendant A llen-E d mond s Show Corporation's Motion to Dismiss not later than August 9, 2007, a s well as any other previously filed Motion to Dismiss that has not been terminated through a bilateral stipulation of dismissal.
Signed: July 25, 2007

-3-

Case 1:07-cv-00231-LHT-DLH

Document 30

Filed 07/26/2007

Page 4 of 4

-4-