Menefee v. Nike Inc.
Filing
6
MEMORANDUM AND ORDER GRANTED 3 MOTION to Dismiss (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4) (Main Document 6 replaced on 2/10/2015) (sashabranner, 4).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HENLEY MENEFEE,
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Plaintiff,
v.
NIKE INC.,
Defendant.
CIVIL ACTION NO. 4:14-3715
MEMORANDUM AND ORDER
In this civil suit alleging violations of multiple criminal statutes, Defendant
Nike, Inc. (“Nike”) has filed a Notice of Removal [Doc. # 1] and a Motion to Dismiss
[Doc. # 3]. Plaintiff Henley Menefee, proceeding pro se, has responded [Doc. # 5].
The motion now is ripe for decision. Having considered the parties’ briefing, the
applicable legal authorities, and all matters of record, the Court concludes that
Defendant’s motion should be granted and that this case should be dismissed with
prejudice.
I.
BACKGROUND
Plaintiff brought this civil action against Defendant Nike on November 21,
2014, in the 234th Judicial District Court of Harris County, Texas. See “Complaint,”
No. 2014-68454 [Doc. # 1-1]. Defendant removed to this Court on December 30,
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2014, invoking this Court’s federal question jurisdiction. Notice of Removal [Doc.
# 1].1 Defendant now seeks dismissal of this suit for failure to state a claim upon
which relief can be granted.
Plaintiff’s state court pleadings allege that he “has been placed on live
television before the United States of America and other countries,” and that viewers
have seen him on live television and heard him on live radio, and that broadcasters
and news anchors have “witnessed these events daily in my life and have discussed
them on their shows, sitcoms, and daily commentaries.” Doc. # 1-1, ¶ 3, ¶ 5.
They have witnessed the development of new businesses, new
companies, new products, new television shows, and even new television
networks, that I am the creator and/or inventor, by violating
constitutional rights and federal statutes of criminal civil rights, fraud,
wire fraud, RICO, conspiracy, and federal wiretapping.
1
Federal law requires a defendant to file a notice of removal within thirty days after the
defendant receives, through service of process or otherwise, a copy of the initial
pleading. 28 U.S.C.A. § 1446(b)(1). In this case, Defendant states that the removal
was timely because it was filed within thirty days of Plaintiff’s “purported service”
on December 2, 2014. Id. at 2. Defendant has not provided any documentation to
support its statement or to show the date of actual receipt of the pleadings.
Nevertheless, Plaintiff has not objected to the timeliness of removal and has not filed
a motion to remand, and the time to do so has passed. See 28 U.S.C.A. § 1447(c) (“A
motion to remand the case on the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of the notice of removal
under section 1446(a)”). Therefore, to the extent the notice of removal was
procedurally defective, the issue is now waived. In re TXNB Internal Case, 483 F.3d
292, 299 (5th Cir. 2007) (“Timeliness of removal is a procedural rather than a
jurisdictional issue and, accordingly, may be waived by an untimely objection” (citing
Hartford Accident & Indem. Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352,
359–60 (5th Cir.1990)).
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Id. ¶ 6.
Plaintiff alleges that numerous media outlets and commercial entities,
including Nike, have generated profits from the alleged violations of federal statutes.
Id. ¶¶ 7-8. Plaintiff does not give any details identifying the events, creations, or
inventions to which he refers.
As discussed below, Plaintiff seeks relief under various federal criminal
statutes. Plaintiff has filed multiple similar suits in this judicial district, many of
which have been dismissed. See Menefee v. Cullen Park Apts., No. 4:14-MC-817
(Lake, J.) (order dated May 1, 2014, dismissing Plaintiff’s petition for issuance of
criminal complaint); Menefee v. United States of America, No. 4:14-MC-819 (Lake,
J.) (same); Menefee v. CBS, et al., No. 4:14-MC-969 (Lake, J.) (same); Menefee v.
United States of America, No. 4:14-MC-975 (Lake, J.) (same); Menefee v. United
States of America, No. 4:14-MC-981 (Lake, J.) (same); Menefee v. Federal Bureau
of Investigation, No. 4:14-MC-996 (Lake, J.) (same, dated May 2, 2014); Menefee v.
Houston Police Dept., et al., No. 4:14-MC-998 (Lake, J.) (same, dated May 7, 2014);
Menefee v. United States of America, No. 4:14-MC-1123 (Harmon, J.) (same, dated
May 13, 2014); Menefee v. Houston Police Dept., No. 4:14-MC-1711 (Gilmore, J.)
(order dated July 17, 2014, denying leave to proceed in forma pauperis because
Plaintiff’s complaint was frivolous); Menefee v. The Coca-Cola Company, No. 4:14MC-2021 (Atlas, J.) (order dated Aug. 20, 2014, denying leave to proceed in forma
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pauperis because Plaintiff was asserting only alleged criminal violations); Menefee
v. Coca-Cola, No. 4:14-CV-2547 (Atlas, J.) (order dated Jan. 6, 2015, dismissing case
for failure to serve defendant with process); Menefee v. Roc-A-Fella Records, L.L.C.,
et al., No. 4:14-CV-3494 (Atlas, J.) (order dated Feb. 3, 2015, dismissing case because
Plaintiff lacks authority to bring criminal causes of action).
Plaintiff also has multiple lawsuits currently pending in this judicial district.
See Menefee v. Harris County Constable Office, et al., No. 4:14-CV-188 (Hittner, J.);
Menefee v. MHMRA of Harris County, et al., No. 4:14-CV-1703 (Hoyt, J.); Menefee
v. Houston Police Dept., et al., No. 4:14-CV-1705 (Rosenthal, J.); Menefee v. Google,
Inc., No. 4:14-CV-3429 (Hughes, J.); Menefee v. Universal Music Group et al., No.
4:15-CV-271 (Atlas, J.); Menefee v. UMG Recordings, Inc., No. 4:15-CV-334
(Rosenthal, J.).
On August 20, 2014, in a miscellaneous case related to the case at bar, this
Court denied Plaintiff leave to proceed in forma pauperis because Plaintiff was
asserting only alleged criminal violations. Menefee v. Nike, Inc., No. 4:14-MC-2022
(Atlas, J.).
II.
LEGAL STANDARD
Because Plaintiff filed suit in state court and has not amended his pleadings in
federal court, this Court will apply Texas pleading standards to evaluate the claims
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asserted in the Petition and Complaint. See Taylor v. Bailey Tool Mfg. Co., 744 F.3d
944, 946-47 (5th Cir. 2014) (federal rules apply to civil actions after removal from
state court, but do not provide for retroactive application to the procedural aspects of
a case that occurred in state court prior to removal) (citing FED. R. CIV. P. 81(c)(1));
Tompkins v. Cyr, 202 F.3d 770, 787 (5th Cir. 2000) (considering sanctions and
holding that “federal rules do not apply to filings in state court, even if the case is later
removed to federal court”). Texas uses a “fair notice” standard of pleading, “which
looks to whether the opposing party can ascertain from the pleading the nature and
basic issues of the controversy and what testimony will be relevant.” Horizon/CMS
Healthcare Corporation v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). A cause of action
may be dismissed, upon motion, if “it has no basis in law or fact.” TEX. R. CIV. P.
91a.1.
Federal pleading standards are more stringent than Texas standards. Although
a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is
viewed with disfavor and is rarely granted, Turner v. Pleasant, 663 F.3d 770, 775 (5th
Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th
Cir. 2009)), a complaint must contain sufficient factual allegations, as opposed to legal
conclusions, to state a claim for relief that is plausible on its face. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th
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Cir. 2012).
Finally, pleadings filed by pro se litigants are entitled to a liberal construction
that includes all reasonable inferences which can be drawn from them. See Haines v.
Kerner, 404 U.S. 519, 520 (1972); U.S. v. Pena, 122 F.3d 3, 4 (5th Cir. 1997).
The difference between state and federal pleading standards is not dispositive
in this case. Even considering the deference afforded to pro se pleadings, Plaintiff’s
pleadings fail to state a legally viable claim under Texas standards, and thus would
also fail under the stricter federal standards.
III.
ANALYSIS
Plaintiff alleges that Nike violated the following statutes: 18 U.S.C. § 241
(criminal conspiracy); 18 U.S.C. § 371 (criminal conspiracy against the United
States); 18 U.S.C. § 982 (criminal forfeiture); 18 U.S.C. § 984 (civil forfeiture); 18
U.S.C. § 1341 (mail fraud); 18 U.S.C. § 1343 (fraud by wire, radio or television); 18
U.S.C. § 1510 (obstruction of criminal investigations); 18 U.S.C. § 1959 (violent
crimes in aid of racketeering activity); 18 U.S.C. § 1961 (Racketeer Influenced and
Corrupt Organizations (“RICO”) definitions); 18 U.S.C. § 1962 (RICO’s specification
of prohibited activities); 18 U.S.C. § 1963 (RICO’s criminal penalties); 18 U.S.C. §
1964 (RICO’s civil remedies available to the government); 18 U.S.C. § 2510
(definitions relevant to federal wiretapping statute).
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In all of these claims, Plaintiff sues Nike for alleged criminal violations, or
seeks penalties such as forfeiture that only the government is authorized to seek. The
United States Supreme Court and the Fifth Circuit have clearly held that private
citizens like Plaintiff has no authority to initiate criminal prosecutions and cannot
enforce criminal statutes through civil actions. See U.S. v. Batchelder, 442 U.S. 114,
124 (1979); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); Hanna v. Home Ins.
Co., 281 F.2d 298, 303 (5th Cir. 1960); Gill v. State of Texas, 153 F. App’x 261, 262
(5th Cir. 2005).
Plaintiff also alleges “violations of the Constitution,” Doc. # 1-1, ¶ 9, but does
not cite any specific constitutional provision and brings no explicit cause of action.
Even given the liberal construction afforded to pro se pleadings, this vague allegation
does not give rise to a viable civil claim, whether under Texas or federal pleading
standards. See Horizon/CMS, 34 S.W.3d at 896; Patrick, 681 F.3d at 617. Plaintiff’s
Response [Doc. # 5] provides no additional information or authority weighing against
dismissal.
IV.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendant’s Motion to Dismiss [Doc. # 3] is GRANTED.
All of Plaintiff’s claims are DISMISSED with prejudice.
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A separate final judgment will issue.
SIGNED at Houston, Texas, this 10th day of February, 2015.
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