Emrit v. Music Gorilla, Inc.

Filing 10

REPORT AND RECOMMENDATIONS re 4 Motion to Proceed in forma pauperis filed by Ronald Satish Emrit, 1 Complaint filed by Ronald Satish Emrit. the Court HEREBY GRANTS Emrit in forma pauperis status. Service upon Defendants should be withheld pend ing the District Courts review of the recommendations made in this report. FURTHER RECOMMENDS that the District Court DISMISS Emrit's cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B) and DENY all additional pending motions as MOOT. The Court FURTHER RECOMMENDS that the District Court ISSUE warnings to Emrit about frivolous and vexatious filings. RECOMMENDED that the district judge warn Emrit that if he continues to file meritless, vague, and impossible claims, the Court may sanction him in the future. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
RONALD SATISH EMRIT
V.
MUSIC GORILLA, INC.

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A-14-CV-927-LY

ORDER ON IN FORMA PAUPERIS STATUS AND
REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Ronald Satish Emrit’s (“Emrit”) Application to Proceed In

Forma Pauperis (Dkt. No. 4). Emrit also filed: Motion for Default Judgment (Dkt. No. 5); Motion
for Summary Judgment (Dkt. No. 6); Motion for Preliminary Judgment (Dkt. No. 7); Motion for
Declaratory Judgment (Dkt. No. 8); and Motion to Request a Rule 16 Meeting (Dkt. No. 9). The
District Court referred the above-motions to the undersigned Magistrate Judge for a determination
pursuant to 28 U.S.C. § 636(b) and Rule 1(c) of Appendix C of the Local 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.
I. APPLICATION TO PROCEED IN FORMA PAUPERIS
After reviewing the financial information in Emrit’s in forma pauperis motion, the Court
finds that he is indigent. Accordingly, the Court HEREBY GRANTS Emrit in forma pauperis
status and ORDERS his Complaint be filed without pre-payment of fees or costs or giving security
therefor pursuant to 28 U.S.C. § 1915(a)(1). This indigent status is granted subject to a later
determination the action should be dismissed if the allegation of poverty is untrue or the action is
found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Emrit is further advised that although

he has been granted leave to proceed in forma pauperis, a Court may, in its discretion, impose costs
of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621
(5th Cir. 1994).
As stated below, this Court has conducted a § 1915(e) review of the claims made in Emrit’s
Complaint and is recommending his claims be dismissed under 28 U.S.C. § 1915(e). Therefore,
service upon Defendant should be withheld pending the District Court’s review of the
recommendations made in this report. If the District Court declines to adopt the recommendations,
then service should be issued at that time upon Defendant.
II. SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW
Because Emrit has been granted leave to proceed in forma pauperis, the Court is required by
standing order to review his Complaint under §1915(e)(2), which provides in relevant part that “the
court shall dismiss the case at any time if the court determines that . . . 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), and the claims “are of little or no weight, 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 of the plaintiff. Haines v. Kerner, 404 U.S.
519, 520–21 (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). In deciding whether a complaint
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states a claim, “[t]he court’s task is to determine whether the plaintiff has stated a legally cognizable
claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star Fund V
(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). “A claim has facial
plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. However, the petitioner’s pro
se status 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 N.A., 808 F.2d 358, 359 (5th Cir. 1986).
A.

Factual Allegations and Claims
Emrit brings this cause of action against Defendant Music Gorilla, Inc., alleging breach of

contract, tortious interference with contract, fraud, conversion, intentional infliction of emotional
distress and negligence. Complaint at 1. Emrit’s claims apparently stem from a contract he entered
into in the summer of 2006 with Gorilla Music, Inc. Emrit alleges that he paid $300 to Gorilla to
represent him as his agent in the music business. Emrit asserts that, as part of the contract, Gorilla
agreed to submit his music to opportunities and venues whereby Emrit’s music would be exposed
to the three major record labels, Universal Music Group, Warner Music Group, and Sony.
Emrit complains that he received no official communication that any agent from any major
record label had actually listened to his music. Emrit asserts that the Gorilla website indicated that
only 10 to 15 music industry representatives had listened to Emrit’s music uploaded to the Gorilla
website platform. Furthermore, he complains that he has “never officially been offered any record
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deal, ‘360 deal,’ distribution deal [or] publishing deal from any of the aforementioned major record
labels.” Complaint at 5. Emrit asserts that Gorilla’s failure to secure a record deal for him
constitutes negligence, conversion of his $300, products liability because the website is defective,
fraud, tortious interference with a contract, and breach of contract. Emrit argues that the various
statutes of limitations for these claims do not apply to him and should be tolled because it is not part
of the law school curriculum to teach students that a person may bring actions pro se and in forma
pauperis.1 Complaint at 5-6.
B.

Limitations

A statute of limitations is a procedural device operating as a defense to limit the remedy
available from an existing cause of action. Cadle Co. v. Wilson, 136 S.W.3d 345, 350 (Tex. App.
– Austin 2004, no pet.). A cause of action accrues, and the statute of limitations begins to run, when
facts come into existence that authorize a claimant to seek a judicial remedy. Exxon Corp. v.
Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex. 2011) (op. on reh’g). The general rule
governing when a claim accrues, to start limitations running, is the “legal injury rule,” which
provides that a claim accrues “when a wrongful act causes some legal injury, even if the fact of
injury is not discovered until later, and even if all resulting damages have not yet occurred.” Murphy
v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997).
Emrit claims both breach of contract and tort claims stemming from his failure to secure a
recording contract from a major record label. In Texas the statute of limitation for a breach of
contract claim is four years. See TEX. CIV. PRAC. & REM.CODE ANN . § 16.004 (West 2002); Visa Net

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Emrit alleges that he attended and graduated from Saint Thomas University School of Law
in Miami Gardens, Florida, and thus is familiar with law school curriculum.
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v. TIG Ins. Co., 211 S.W.3d 310, 315 (Tex .2006) (per curiam). The statute of limitations for a fraud
claim is also four years. See Emerald Oil & Gas, 348 S.W.3d 194, 216 (recognizing that statute of
limitations for fraud is four years). Emrit alleges that he entered into the contract with Gorilla Music
in 2006, over eight years ago, and that he failed to secure a commercial recording contract, which
he alleges is his harm. From the face of the complaint it is plain that Emrit was aware, within the
applicable statute of limitations, that he had not received a recording contract. Accordingly, his
fraud and breach of contract claims are barred by the applicable statutes of limitations.
Emrit also asserts various tort causes of action, each of which has a limitations period of two
years. TEX. CIV. PRAC. & REM.CODE ANN. § 16.003(A) (West Supp.2014); see Dunmore v. Chicago
Title Ins. Co., 400 S.W.3d 635, 640 (Tex. App. – Dallas 2013, no pet .) (negligence); TEX. CIV.
PRAC. & REM.CODE ANN. § 16.003(A) (conversion and restitution claims); TEX.CIV.PRAC. &
REM.CODE ANN., § 16.003(A) (products liability ); Shunta v. Westergren, No. 01–08–00715–CV,
2010 WL 2307083, at *4 (Tex. App. Houston [1st Dist.] June 10, 2010, no pet.) (mem. op.) (tortious
interference with contract); TEX. CIV. PRAC. & REM.CODE ANN. § 16.003 (Vernon Supp. 2010)
(intentional infliction of emotional distress). Because Emrit was aware he had not secured a
recording contract within the two-year limitations period, these claims are also barred by the
applicable statutes of limitations.
C.

Equitable Tolling

Emrit argues that the statutes of limitations are inapplicable to his claims and he is eligible
for equitable tolling because he was unaware that he could bring his claims pro se and in forma
pauperis. The Fifth Circuit has held that the district court has the power to equitably toll the
limitations period in “extraordinary circumstances.” Cantu–Tzin v. Johnson, 162 F.3d 295, 299 (5th
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Cir.1998). As a general rule, equitable tolling has historically been limited to situations where the
petitioner “has actively pursued his judicial remedies by filing a defective proceeding during the
statutory period, or where the [petitioner] has been induced or tricked by his adversary’s misconduct
into allowing the filing deadline to pass.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990).
In order to qualify for equitable tolling, the defendant must present “rare and exceptional
circumstances.” Davis v. Johnson, 158 F.3d 806, 810–11 (5th Cir. 1998). The Fifth Circuit has
expressly held that proceeding pro se, illiteracy, deafness, lack of legal training, and unfamiliarity
with the legal process are insufficient reasons to equitably toll the statute of limitations. Felder v.
Johnson, 204 F.3d 168, 172-73 (5th Cir.), cert. denied, 531 U.S. 1035 (2000) (ignorance of law and
pro se status insufficient to toll statute of limitations). “Ignorance of legal rights does not toll a
statute of limitations.” Larson v. American Wheel & Brake, Inc., 610 F.2d 506, 510 (8th Cir. 1979).
See also., Teemac v. Henderson, 298 F.3d 452, 457–58 (5th Cir. 2002); Barrow v. New Orleans S.S.
Ass'n, 932 F.2d 473, 477–78 (5th Cir. 1991). Emrit’s claim he was unaware that he could apply for
in forma pauperis status and proceed pro se, especially in light of his representation to the Court that
he attended law school, are an insufficient basis for tolling the applicable statutes of limitations.
Accordingly, Emrit’s claims are properly dismissed as frivolous. Moore v. McDonald, 30 F.3d 616,
620 (5th Cir. 1994) (a district court is authorized to dismiss a claim as frivolous “it is clear from the
face of a complaint . . . that the claims asserted are barred by the applicable statute of limitations.”).
III. ORDERS AND RECOMMENDATIONS
In accordance with the foregoing discussion, the Court HEREBY GRANTS Emrit in forma
pauperis status (Dkt. No. 1). Service upon Defendants should be withheld pending the District
Court’s review of the recommendations made in this report. The undersigned FURTHER
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RECOMMENDS that the District Court DISMISS Emrit’s cause of action pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and DENY all additional pending motions as MOOT.
The Court FURTHER RECOMMENDS that the District Court ISSUE warnings to Emrit
about frivolous and vexatious filings. A review of PACER shows that within the last three years
Emrit has filed at least fifty federal lawsuits across the country alleging a litany of frivolous claims
against various defendants. In this Court, Emrit has filed two additional cases just this year. Emrit
v. Nat’l Academy of Recording Arts and Sciences, Civ. Case No. 14-cv-392-SS (W.D. Tex. 2014),
(still pending); and Emrit v. Public Access to Court Electronic Records (PACER), Civ. Case No. 14cv-461-LY (W.D. Tex. 2014) (dismissed as frivolous).
A court possesses the inherent power “to protect the efficient and orderly administration of
justice,” including “the power to levy sanctions in response to abusive litigation practices.” In re
Stone, 986 F.2d 898, 902 (5th Cir. 1993). Id. Sanctions may be appropriate when a pro se litigant
has a history of submitting multiple frivolous claims. FED. R. CIV. P. 11; Mendoza v. Lynaugh, 989
F.2d 191, 195-97 (5th Cir. 1993). Thus, it is RECOMMENDED that the district judge warn Emrit
that if he continues to file meritless, vague, and impossible claims, the Court may sanction him in
the future. Such sanctions may include a broad injunction, barring him from filing any future actions
in the Western District of Texas without leave of court, as well as monetary sanctions, including
denial or removal of his in forma pauperis status thereby requiring him to pay a filing fee before
filing any new cases in the Western District of Texas. Additionally, Emrit could be prohibited from
filing any new lawsuits until any sanction levied against him is paid in full.

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IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 31st day of October, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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