Seale v. Warner Brothers Entertainment

Filing 5

ORDER ADOPTING Magistrate's 2 Report and Recommendations. IT IS ORDERED that Plaintiff Gabriel Seale's 3 Complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge Sam Sparks. (klw)

F
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2011i

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.

APR 16

PM 1:59

WESTi.

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GABRIEL SEALE,
Plaintiff,
Case No. A-14-CA-73-SS

-vs-

WARNER BROS. ENTERTAINMENT,
Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Plaintiff Gabriel Scale's Complaint [#3], and the Report and Recommendation of the
United States Magistrate Judge [#2]. Having reviewed the documents, the relevant law, and the file
as a whole, the Court now enters the following opinion and orders.

All matters in this case were referred to United States Magistrate Judge Andrew W. Austin

for report and recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1(f) of Appendix C of the

Local Court Rules of the United States District Court for the Western District of Texas, Local Rules

for the Assignment of Duties to United States Magistrate Judges. Seale is entitled to de novo review

of the portions of the Magistrate Judge's report to which he filed specific objections. 28 U.S.C.
§

636(b)(l). All other review is for plain error.

Douglass

v.

United Servs. Auto. Ass

'n,

79

F.3d

1415. 1428-29 (5th Cir. 1996) (en banc). Nevertheless, this Court has reviewed the entire file de

novo, and agrees with the Magistrate Judge's recommendation.

/

Background
This is a pro se civil action filed by Seale. Along with his Complaint, Scale filed an

application to proceed in forma pauperis. The Magistrate Judge granted Seale's application to
proceed injbrrnapauperis. Then, under 28 U.S.C.

§

1915(e)(2), the Magistrate Judge reviewed

Seale's claims and concluded Seale's Complaint lacks an arguable basis in law. The Magistrate
Judge recommended the claims be dismissed as frivolous.
The underlying facts and claims asserted by Seale in his Complaint are short and simple.
Seale alleges Warner Brothers Entertainment, Inc. (Warner Brothers) defamed him by distributing
the 1989 film Tango & Cash. Specifically, Seale alleges he saw Tango & Cash in 1990 in California

when he was sixteen years-old. Scale complains that Kurt Russell's character in the film, Gabriel
Cash, harmed Seale's reputation because he appeared "dressed as a woman with lipstick, a woman's

miniskirt, and woman's high heel shoes." Compl. [#3], at

1.

Scale alleges his fellow teenagers

teased him because he shares the same first name as the character in the film. Scale seeks $250,000
from Warner Brothers for the alleged defamation, libel, and slander.

Analysis
I.

Legal Standard
Under 28 U.S.C.

§

1915(e)(2), this Court reviews the Complaint to determine if "the action

or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief."
§

28 U.S.C.

1915(e)(2). "A complaint filed IFP may be dismissed as frivolous if it lacks an arguable basis in

law or fact," Allison

v.

Kyle, 66 F.3d 71, 73(5th Cir. 1995), or the claims "are of little or no weight,

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value, or importance, not worthy of serious consideration or trivial." Deutsch v. United States, 67
F.3d 1080, 1083 (3d Cir. 1995).
Pro se complaints are liberally construed in favor ofthe plaintiff Haines v. Kerner, 404 U.S.
519, 520-2 1 (1972). The Court must "accept as true factual allegations in the complaint and all

reasonable inferences that can be drawn therefrom." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996);
see also Watts

v.

Graves, 720 F.2d 1416, 1419 (5th Cir. 1983). The petitioner's pro se status,

however, does not offer him "an impenetrable shield, for one acting pro se has no license to harass

others, clog the judicial machinery with meritless litigation, and abuse already overloaded court

dockets." Farguson v. Mbank Houston NA., 808 F.2d 358, 359 (5th Cir. 1986).
The standard for determining whether a complaint fails to state a claim under

§ 19 15(e)

is

identical to the standard used when ruling on a Rule 1 2(b)(6) motion. Toursher v. McCullough, 184
F.3d 236, 240 (3d Cir. 1999) (applying Rule 12(b)(6) standard in dismissing for failure to state a

claim under § 1915(e)(2)(B)). To survive a Rule 12(b)(6) motion, the plaintiff must plead sufficient
facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

Bell All. Corp.

v.

Twoinbly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at 678. Although a plaintiff's
factual allegations need not establish that the defendant is probably liable, they must establish more
than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining plausibility is a

"context-specific task," and must be performed in light of a court's "judicial experience and common
sense." Id. at 679.

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II.

Application
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Lfe Ins. Co. of

Am., 511 U.S. 375, 377 (1994). Thus, federal courts possess only that power authorized by the

Constitution and statute, which is not to be expanded by judicial decree. Id. A federal court has
subject matter jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the
United States," or over civil cases in which the amount in controversy exceeds $75,000, exclusive

of interest and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C.
§S 1331, 1332.

Because Seale has not alleged any federal causes of action, he is attempting to

invoke this Court's diversity jurisdiction. When, as in this case, subject matterjurisdiction is based
on diversity, federal courts apply the substantive law of the forum state, which, in this case, is Texas.

Tompkins, 304 U.S. 64(1938); Holt v. State Farm Fire & Cas. Co., 627 F.3d 188,

Erie R.R. Co.

v.

191 (5th Cir.

2010).

Under Texas law, to maintain a cause of action for defamation, the plaintiff must prove the
defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while
acting with negligence regarding the truth of the statement (if the plaintiff is a private individual).
WFAATV, Inc.

v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998). An action for libel requires

publication to a third party of written defamatory words about the plaintiff while slander requires

defamatory words about the plaintiff to be spoken, without legal excuse, to a third party. Alaniz v.
Hoyt, 105 S.W.3d 330, 345 (Tex.

App.Corpus Christi 2003, no pet.), abrogated on other grounds

by Fort Brown Villas III Condominium Ass 'n, Inc.

v.

Gillenwater, 285 S.W.3d 879 (Tex. 2009).

Seale has failed to allege a prima facie defamation claim because he has failed to demonstrate

-4-

Warner Brothers published a defamatory statement concerning Seale. A publication is "of and

concerning the plaintiff' if persons who knew and were acquainted with him understood from
viewing the publication that the defamatory matter referred to him. Cox Tex. Newspapers, L.P.

App.Austin 2007, pet. denied). The movie

Penick, 219 S.W.3d 425, 433 (Tex.

v.

Tango & Cash is

about fictional characters, and the fact that a character in the movie shares the same first name as
Seale does not demonstrate the movie is about Seale. Scale has failed to meet his burden of showing

the movie Tango & Cash was about him, and accordingly, his defamation claim is without merit.

Seale's defamation claim is also barred by Texas's one-year statute of limitations. See TEX.
Civ. PRAC. & REM. CODE ANN.

§

16.002. In Texas, the plaintiff must bring a defamation suit no

later than one year after the day the cause of action accrues. Id.

§ 16.002(a).1

Ordinarily, the cause

of action accrues when the defamatory statement is published. Newsom v. Brod, 89 S.W.3d 732, 736
(Tex.

App.Houston [1st Dist.] 2002, no pet.). Under the discovery rule, however, "the statute of

limitations does not begin to run until the injured party learns of, or, in the exercise of reasonable
diligence, should have learned of the injury or wrong giving rise to the action." Johnson
Univ., 188 S.W.3d 296, 301 (Tex.

App.Waco

v.

Baylor

2006, no pet.). Seale alleges he learned of the

alleged defamatory film in 1990, but he did not file his lawsuit until 2014. Accordingly, Seale's

defamation claim is time-barred.

Conclusion
Based upon the foregoing, Scale's Complaint fails to allege any valid claims for relief.

Accordingly, the Court dismisses this case under 28 U.S.C.

§

1915(e)(2).

'California also has a one-year statute of limitations for defamation, libel, and slander claims.
340(c).

Civ. PROC. §

-5-

See CAL. CODE

Accordingly,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge Andrew
W. Austin [#2] is ACCEPTED;

IT IS FINALLY ORDERED that Plaintiff Gabriel Seale's Complaint [#3] is

DISMISSED WITHOUT PREJUDICE.
SIGNED this the

/

day of April 2014.

SA
UNITED STATES DISTRICT JUDGE

073 1915 ord twfrm

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