SIMS v. VIACOM, INC.

Filing 5

MEMORANDUM OPINION AND ORDER DISMISSING CASE AS FRIVOLOUS. the Complaint filed by Charles L. Sims is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The Clerk of Court is ORDERED to docket this case closed.Signed by Judge Terrence F. McVerry on 8/21/2014. (rjw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES L. SIMS,
Plaintiff,
v.
VIACOM, INC.,
Defendant.

)
)
)
)
)
)
)
)

2: 14-cv-1095

MEMORANDUM OPINION
This case has a tortured background. Since 2009, Plaintiff, Charles Sims has filed three
separate lawsuits against Defendant, Viacom, Inc., alleging copyright infringement and other
related claims. All three have lawsuits been dismissed with prejudice,1 and Plaintiff has
previously been “advised and warned” by this Court not “to continue to file lawsuits against this
Defendant which arise out of the same underlying facts.” Despite those words of caution, on
August 15, 2014, Sims filed a motion for leave to proceed in forma pauperis (“IFP”), with an
attached Complaint that rehashed most of the allegations in his prior suits (ECF No. 1). After
evaluating Sims’ financial status and determining that he was unable to pay the requisite filing
fee, the Court granted his motion to proceed IFP (ECF No. 2). For the following reasons,
however, the Court will dismiss his Complaint as frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B)(i).
I.

Background
There is no need to set forth all of Sims’ allegations at length. It suffices to say that he

1.
See Sims v. Viacom, Inc., No. 09–3521, 2010 WL 4665969, at *1 (E.D. Pa. Nov. 17,
2010) [“Sims I”]; Sims v. Viacom, Inc., No. 11–cv–0675, 2012 WL 280609, at *4–5 (W.D. Pa.
Jan. 31, 2012) [ “Sims II”]; Sims v. Viacom, Inc., No.12-166, 2012 WL 696225 (W.D. Pa. Nov.
26, 2012), report and recommendation adopted, 2013 WL 357271 (W.D. Pa. Jan. 29, 2013),
aff’d, 544 F. App’x 99 (3d Cir. 2013) [“Sims III”].
1

created and copyrighted a “treatment” for a reality television show dubbed “Ghetto Fabulous,”
which he and a collaborator, Allison Jordan, pitched to Viacom, and he believes that Viacom
stole his idea for the show.
The protracted procedural history between the parties is, however, worthy of more
consideration. On January 23, 2009, Sims and Jordan initiated a lawsuit against Viacom and two
other companies by writ of summons in the Philadelphia County Court of Common Pleas. Six
months later, they filed a verified complaint, in which they contended that Viacom “stole ‘Ghetto
Fabulous,’” and asserted claims for breach of express and implied contracts, fraud, negligent
misrepresentation, and conversion. Defendants timely removed the case to the United States
District Court for the Eastern District of Pennsylvania, and then moved to dismiss the claims.
The district court granted the motion to dismiss the fraud and conversation claims, holding, inter
alia, that the conversion claim was preempted by the federal Copyright Act. The court permitted
the remaining claims to proceed to discovery. Following the close of discovery, Viacom moved
for summary judgment on the ground that the claims for breach of express and implied contracts
were barred by the Submission Release that had been signed by Jordan. The district court found
that Jordan had signed the Submission Release “on behalf of herself and Sims,” and granted
summary judgment in favor of Viacom.
On June 7, 2011, Sims, pro se, filed a second suit against Viacom, this time in the
Western District of Pennsylvania. The Complaint basically repeated the same allegations as
those alleged in his prior lawsuit; however, he purported to proceed under new legal theories:
copyright infringement, violations of the Digital Millennium Copyright Act (“DMCA”), and
unjust enrichment. Viacom moved to dismiss, and the Court granted the motion, holding that the
copyright and DMCA claims were time-barred, or, alternatively, were subject to dismissal
2

because Sims had never registered his treatment with the copyright office. In addition, the Court
held that the unjust enrichment claim was preempted by federal copyright law. Sims did not
appeal.
Instead, on February 10, 2012 – just ten days after his claims were dismissed in Sims II –
Sims filed yet another Complaint against Viacom in the Western District of Pennsylvania. In the
third action based on Viacom’s alleged use of his “Ghetto Fabulous” treatment, Sims agains
alleged copyright infringement, violation of the DMCA, and unjust enrichment for the 2009
episodes of “Charm School” and another show, “From G’s to Gents.” Once again, Viacom
moved to dismiss, arguing that the claims were barred by res judicata, time-barred under the
terms of the Submission Release, and, in any event, entirely without merit. Chief Magistrate
Judge Lenihan recommended that the motion be granted on the basis of res judicata, and the
Court agreed, adopting the Magistrate Judge’s report and recommendation as the opinion of the
Court on January 29, 2013. Plaintiff then appealed to the Court of Appeals for the Third Circuit,
which affirmed this Court’s decision in a non-precedential opinion on November 14, 2013, after
having found that each of Plaintiff’s claims were barred by res judicata.
On August 15, 2014, Plaintiff filed his latest Complaint against Viacom. This action
contains virtually the same allegations as the previous three. In a preemptive attempt to evade the
application of res judicata, however, Plaintiff now alleges that
18.
Throughout the entire appeal process with the Sims III lawsuit still
pending, Viacom failed to take seasons one (1) and two (2) of the alleged
infringing show “From G’s to Gents” off of its website, thus creating new
successive violations of alleged infringement according to Copyright law. In
contrast, the show “Charm School” was never rebroadcasted on Viacom’s website
pending litigation or post litigation. The present lawsuit is in regards to only the
recent Internet rebroadcast of seasons one (1) and two (2) of the show “From G’s
to Gents.” These current rebroadcasted episodes could not have been included in
any of the previous Sims’ lawsuits.
3

Compl. ¶ 18 (ECF No. 4).
II.

Standard of Review
A district court must use a “two-step analysis in evaluating motions to proceed under §

1915.” Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990). The court must first evaluate the
plaintiff’s “financial status and determine[] whether (s)he is eligible to proceed in forma
pauperis under § 1915(a).” Id. The determination of whether to grant or deny IFP status is
“based on economic criteria alone.” Id. Second, the court must analyze the complaint “under §
1915(d) to determine whether it is frivolous.”2 Id. A complaint is frivolous only if it is “based on
an indisputably meritless legal theory” or if its “factual contentions are clearly baseless.” Id. at
195 (citing Neitzke v. Williams, 490 U.S. 319 (1989)). The Court of Appeals has also made clear,
however, that “res judicata is a proper basis for dismissal under 28 U.S.C. § 1915(e)(2)(B).”
Gimenez v. Morgan Stanley DW, Inc., 202 F. App’x 583, 584 (3d Cir. 2006) (citing Gleash v.
Yuswak, 308 F.3d 758, 760-61 (7th Cir. 2002)). In making this determination, the Court must
liberally construe the allegations in the complaint. Higgs v. Att’y Gen., 655 F.3d 333, 339–40 (3d
Cir. 2011).
III.

Discussion
The Court granted Plaintiff’s motion to litigate IFP based solely on his financial status, as

set forth in his affidavit. Upon a review of his Complaint, however, it is clear that the claims
alleged therein are barred by res judicata, and, thus, the Complaint will be dismissed with

2.
In Roman, the court referenced the former version of 28 U.S.C. § 1915(d), which
provided that “[t]he court may request an attorney to represent any such person unable to employ
counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the
action is frivolous or malicious.” 28 U.S.C. § 1915(d) (1990) (redesignated as Section 1915(e) by
the Prison Litigation Reform Act, Pub. L. No. 104–135, 110 Stat. 1321 (1996)). The portion of
Section 1915(d) which allowed the district court to dismiss frivolous IFP complaints has since
been recodified at 28 U.S.C. § 1915(e)(2)(B)(i).
4

prejudice under 28 U.S.C. § 1915(e)(2)(B)(i).
As the Court of Appeals explained in affirming this Court’s dismissal of Plaintiff’s third
Complaint against Viacom:
The doctrine of res judicata, or claim preclusion, is intended to avoid piecemeal
litigation of claims arising from the same events. Churchill v. Star Enters., 183
F.3d 184, 194 (3d Cir. 1999). “[A] final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that were or could
have been raised in that action.” Id. (quoting Rivet v. Regions Bank of La., 522
U.S. 470, 476, 118 S. Ct. 921, 139 L.Ed.2d 912 (1998)). The application of res
judicata requires a defendant to demonstrate three elements: (1) a final judgment
on the merits in a prior suit involving, (2) the same parties or their privies, and (3)
a subsequent suit based on the same cause of action. Lubrizol Corp. v. Exxon
Corp., 929 F.2d 960, 963 (3d Cir. 1991) (citing United States v. Athlone Indus.,
Inc., 746 F.2d 977, 983 (3d Cir.1984)). “If these three factors are present, a claim
that was or could have been raised previously must be dismissed as precluded.”
CoreStates Bank, N.A. v. Huls Am., Inc., 176 F.3d 187, 194 (3d Cir. 1999).
Each of the requisite factors is present here. First, the courts in Sims I, Sims II, and Sims
III each entered a final judgment on the merits against Sims. See id. (citing Federated Dep’t
Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981); Hubicki v. ACF Indus., Inc., 484 F.2d 519,
524 (3d Cir. 1973)) (explaining that dismissal under Fed. R. Civ. P. 12(b)(6) and summary
judgment are both final judgments for purposes of res judicata). Second, each of the prior cases
involved the same parties – Sims and Viacom. Third, this suit is based on the same “cause of
action” as the prior suits. “In determining whether two suits are based on the same cause of
action, we take a broad view, evaluating whether there is ‘essential similarity of the underlying
events giving rise to the various legal claims.’” Id. (quoting CoreStates Bank, 176 F.3d at 194).
The court must consider “‘whether the acts complained of were the same, whether the material
facts alleged in each suit were the same, and whether the witnesses and documentation required
to prove such allegations were the same.’” Id. (quoting Lubrizol, 929 F.2d at 963). Here, just as
the Court of Appeals concluded in affirming the dismissal of Sims’ third lawsuit, the gravamen
5

of this Complaint is identical as that in the prior suits – “his contention Viacom copied his
concept for a reality television show from the ‘Ghetto Fabulous’ treatment Sims and Jordan
submitted to Viacom.” Id. at 102.
While Sims attempts to distinguish this suit from the prior ones by alleging that the
rebroadcasted episodes of “From G’s to Gents” could not have been included in any of the
previous lawsuits, the Court is not persuaded that the distinction matters. Indeed, Sims raised a
similar argument on appeal in the third lawsuit, and the Court of Appeals soundly rejected his
reasoning:
Though Sims attempts to differentiate this action by focusing his claims only on
the 2009 seasons of “Charm School” and “From G’s to Gents” and noting his
copyright registration for the “Ghetto Fabulous” treatment, such minor differences
do not undermine the “essential similarity of the underlying events” which form
the basis of Sims’s claims. See Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169,
174 (3d Cir. 2009) (“A claim extinguished by res judicata ‘includes all rights of
the plaintiff to remedies against the defendant with respect to all or any part of the
transaction or series of connected transactions, out of which the action arose.’”
(quoting Restatement (Second) of Judgments § 24(1) (1982) (emphasis added by
Elkadrawy))); Churchill, 183 F.3d at 195 (dismissing under res judicata a second
action pleading different legal theories and new facts because of the essential
similarity of the underlying events with a prior lawsuit). We likewise discount
Sims’s contention he should be entitled to plead each season separately
because each episode of the television shows is a separate work entitled to its
own copyright protection. Sims complains Viacom copied his concept for a
reality television show, not for particular episodes. Furthermore, the 2009
seasons of “Charm School” and “From G’s to Gents” are part of a series of
connected transactions – beginning with Sims’s allegation Viacom stole his idea
for a reality television show – and accordingly are based on the same cause of
action as Sims I and Sims II. See Elkadrawy, 584 F.3d at 174.
Id. at 102 (emphasis added). The Court of Appeals’ reasoning applies with equal force to Sims’
current claim. Allowing him to proceed in such a piecemeal fashion would directly undercut the
principles that the doctrine of res judicata is designed to preserve.
Accordingly, Sims’ Complaint will be dismissed with prejudice. There is simply no
reason to require Viacom to be served with a virtually identical copy of the Complaint that it has
6

sought to dismiss on three prior occasions and to await “the inevitable motion to dismiss on
preclusion grounds.” Gleash, 308 F.3d at 760-61. It is, rather, much more sensible to “stop the
suit immediately, saving time and money for everyone concerned,” and § 1915(e)(2)(B)(i)
expressly permits the Court to do so.
IV.

Conclusion
For the foregoing reasons, Sims’ Complaint will be DISMISSED WITH PREJUDICE

under 28 U.S.C. § 1915(e)(2)(B)(i). He is once against cautioned against continuing to file
lawsuits against Viacom arising out of the same underlying facts as the four suits that he is
already filed. If his disagrees with this Court’s decision, the proper procedural mechanism for
challenging the decision is filing a notice of appeal with the district court clerk within 30 days
and not simply filing another lawsuit. See Fed. R. App. P. 3 and 4. An appropriate Order follows.
McVerry, J.

7

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES L. SIMS,

)
)
)
)
)
)
)
)

Plaintiff,
v.
VIACOM, INC.,
Defendant.

2: 14-cv-1095

ORDER OF COURT
AND NOW, this 21st day of August, 2014, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED AND DECREED that the
Complaint filed by Charles L. Sims is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). The Clerk of Court is ORDERED to docket this case closed.
BY THE COURT:
s/ Terrence F. McVerry
United States District Court Judge
cc:

Charles L. Sims, Pro Se
212 Ridge Avenue
New Kensington, PA 15068
[phone]
Gayle C. Sproul, Esquire
Levine, Sullivan, Koch & Schulz
Email: [e-mail]
Michael Berry, Esquire
Levine Sullivan Koch & Schultz
Email: [e-mail]
Robert Penchina, Esquire
Levine, Sullivan, Koch & Schulz
Email: [e-mail]

8