Fiorani et al v. Commonwealth of Virginia et al

Filing 2

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 4/1/14. (kyou, ) (Copy mailed to Pro Se party)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
ROSS A. FIORANI, et al.,
Plaintiffs,
v.

Civil Action No. 3:14-CV-216

COMMONWEALTH OF
VIRGINIA, et al.,
Defendants.
MEMORANDUM OPINION
THIS MATTER is before the Court on Plaintiff Ross A. Fiorani’s Motion to Proceed in
Forma Pauperis (“IFP”). (ECF No. 1.) For the reasons that follow, Plaintiff’s IFP Motion will be
GRANTED and his Complaint will be DISMISSED under 28 U.S.C. § 1915(e)(2).
I.

Background

On March 26, 2014, Plaintiff filed an IFP Motion along with a Complaint against the
Commonwealth of Virginia, Commissioners of the Treasury, DMV, MVDB, VITA, and VITA’s
agents Mr. Canary, Ms. Brown, Ms. Wood-Henry, Ms. Estes, and Mr. Sam Nixon. Plaintiff seeks
damages on behalf of himself and Navy Federal Credit, American Express Bank, Barclays Bank,
TD Bank, Allstate Insurance Company, the Virginia Tax Department, the Fairfax County Tax
Authority, and Capital One. Plaintiff acknowledges that he filed related civil suits between
December 2011 and September 2013. Plaintiff indicates that from February 2013 to November
22, 2013, the defendants (primarily VITA) interfered with his activities related to his work
cellphone. Specifically, he alleges that Defendants criminally failed to initiate cellphone service
or reconnect his cellphone, thus, causing him financial harm because he was unable to work.
Plaintiff argues that he is entitled to relief under Virginia Code §§ 18.2-22, -499, and -500.
Plaintiff represents that on August 25, October 28, and November 1, 2013, he served “the State of

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Virginia defendants” with “service of a copy of the complaint of default judgment, declaratory
judgment to the States Attorney General of Virginia, Inspector General of Virginia, and each
Commissioner of the DMV, MVDB, and CPD.” (Pl.’s IFP Mot. Ex. 1, at 5). Plaintiff then goes on to
assert that, because no Defendant replied or answered, Plaintiffs are owed damages under 18
U.S.C. §§ 1512, 1962(c), and 1963(b), in the amount of $1,670,000.00. Plaintiff Fiorani asserts
that he is personally owed $620,000.00.
II.

Discussion
A. Initial Filing

Plaintiff is under a pre-filing injunction issued by United States District Judge Bryan,
sitting in the Alexandria Division of the United States District Court for the Eastern District of
Virginia. Pursuant to that pre-filing injunction:
Plaintiff is enjoined from filing future actions in federal district court without
prior leave of court. In addition, any future requests for leave of court must be
accompanied by copies of the pleadings and ruling in such cases arising out of or
related to plaintiff’s attempt to purchase a 1997 Ford Crown Victoria car with law
enforcement features from Crystal Ford.
Fiorani v. 1st Advantage Fed. Credit Union, No. 4:08CV109, 2009 WL 6305779, at *1 (E.D. Va.
Feb. 5, 2009), aff’d, 326 F. App’x 171 (4th Cir. 2009) (quoting Fiorani v. Metcalf, CA No.
1:00-619-A (E.D. Va., May 12, 2000)). As a procedural matter, this action was initiated prior to
the Court’s knowledge of the pre-filing injunction against Fiorani. Plaintiff did not file copies of
pleadings and ruling in such cases arising out of or related to plaintiff’s attempt to purchase a
1997 Ford Crown Victoria car with law enforcement features from Crystal Ford. However,
because Fiorani’s Motion is already before the Court, Fiorani’s IFP Motion shall be deemed
properly filed, and this Court will grant Fiorani the ability to file the instant action because his
Motion and attached Complaint appear to comport with the pre-filing injunction.
B. Ability to Pay Fees
In support of his Motion, Plaintiff submitted a financial affidavit attesting to his assets
and inability to pay the required filing fees. Plaintiff’s financial affidavit barely shows that he

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meets the IFP standard. See 28 U.S.C. § 1915(a) (providing federal courts with authority to grant
an IFP where a person submits an affidavit showing “the person is unable to pay such fees or give
security therefor”). Plaintiff represents that he has no cash or property whatsoever and a total
debt of $38,600.00. Plaintiff also indicates that he is unemployed as of November 2013. Plaintiff
is married but reportedly does not know his wife’s income. Additionally, Fiorani apparently has
no monthly expenses and is still able to afford to live in Kingstowne, Virginia. Upon due
consideration, the Court concludes that Plaintiff is unable to pay the required fees. Accordingly,
the Court will GRANT the Motion and DIRECT the Clerk to file the Complaint attached to the
Motion. See 28 U.S.C. § 1915(a)(1).
C. Sufficiency of the Complaint
1.Standard of Review
Under 28 U.S.C. § 1915(e)(2), a district court has the authority to dismiss a complaint sua
sponte that fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii);
Johnson v. Baskerville, 568 F. Supp. 853, 856 (E.D. Va. 1983) (dismissing pro se complaint sua
sponte). Whether a complaint states a claim upon which relief can be granted is determined by
“the familiar standard for motion to dismiss under Fed. R. Civ. P. 12(b)(6).” Jones v. Link, 493 F.
Supp. 2d 765, 768 (E.D. Va. 2007) (dismissing complaint pursuant to 28 U.S.C. § 1915(e)(2)). To
survive dismissal, a complaint must set forth “sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
2.

Procedural and Standing Issues

As an initial matter, contrary to Plaintiff’s representations, there is no indication that any
related default judgment has been rendered against any of the Defendants. Second, Plaintiff may
not serve process prior to the proper initiation of an action in this Court. Third, Plaintiff is not an
agent of the Commonwealth of Virginia and cannot assert standing on its behalf. Additionally,
there is also no indication that Fiorani is an agent of the other private Plaintiffs in this action.

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3.

Virginia Code Sections 18.2-499 and -500

Here, Plaintiff has failed to allege sufficient facts to support his claim regarding Virginia
Code §§ 18.2-499 and -500. The provisions § 18.2–500 provide civil relief, including treble
damages, for persons “injured in his reputation, trade, business or profession by reason of a
violation of § 18.2–499.” Va. Code § 18.2-500. In turn, Virginia Code § 18.2–499 imposes
criminal liability on:
[a]ny two or more persons who combine, associate, agree, mutually undertake or
concert together for the purpose of (i) willfully and maliciously injuring another in
his reputation, trade, business or profession by any means whatever or (ii)
willfully and maliciously compelling another to do or perform any act against his
will, or preventing or hindering another from doing or performing any lawful act.
Va. Code § 18.2-499. The necessary elements to establish a prima facie case are: “(1) the existence
of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or
expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach
or termination of the relationship or expectancy; and (4) resultant damage to the party whose
relationship or expectancy has been disrupted.” Dunlap v. Cottman Transmission Sys., LLC, 754
S.E.2d 313, 318 (Va. 2014) (quoting Chaves v. Johnson, 335 S.E.2d 97, 102 (Va. 1985)). Here,
Fiorani refers generally to a “work” cellphone and that Defendants’ actions purportedly
interfered with his “work.” However, there is no indication of a valid contractual relationship or
business expectancy. Accordingly, the allegations in the Complaint have not been plausibly
alleged and will be dismissed.
4.

Virginia Code Section 18.2-22

Fiorani also asserts that Defendants violated section 18.2-22, which is a penal statute
regarding conspiracy to commit a crime. However, Fiorani has no standing to enforce this penal
statute because it does not contain a private right of action. See Comfort v. City of Norfolk, No.
CL10–52882011, 2011 WL 7478303, at *2 (Va. Cir. Ct., Jan. 6, 2011). As such, this claim has no
merit and will be dismissed.
//

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III.

Conclusion

For the above reasons, Plaintiff’s IFP Motion will be GRANTED and Plaintiff’s Complaint
will be DISMISSED pursuant to 28 U.S.C. § 1915(e).
Let the Clerk send a copy of this Memorandum Opinion to Fiorani. An appropriate Order
shall issue.

___________________/s/_________________
James R. Spencer
Senior U. S. District Judge

ENTERED this

1st

day of April 2014.

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