United States District Court, E.D. North Carolina, Western Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge
September 2018, Plaintiff John Laake, acting pro se, moved to
proceed in forma pauperis (“IFP Motion”) and
filed a Complaint against Defendant Lulu Enterprises. D.E. 1.
After considering Laake's motion and evaluating the
claims in his Complaint under 28 U.S.C. § 1915, the
undersigned determined that Laake could proceed in forma
pauperis, but that his Complaint, as it stood, failed to
state a claim. D.E. 6. The court dismissed his Complaint but
allowed Laake to file an amended complaint. D.E. 9.
filed his Amended Complaint in February 2019 and the court
referred it to the undersigned for review under § 1915.
D.E. 10. While researching the viability of Laake's tort
claim, it was discovered that Laake had filed a similar
action against Lulu several years ago that the court
dismissed for failure to state a claim. Thus, Laake's
claims are barred by the doctrine of claim preclusion and
this action should be dismissed.
is an author who published books through Defendant Lulu
Enterprises' web-based publishing and distribution
service. Laake alleges that Lulu wrongfully deactivated his
books' listings from its website, deleted much of the
data he stored on the website, and, in response to his
complaints, mailed him physical copies of some of his books
in tatters. Am. Compl, D.E. 10. He claims that Lulu violated
the California Penal Code and committed the tort of
destruction of intellectual property.
this is not the first time Laake has haled Lulu before this
court for allegedly destroying his intellectual property. In
2016, Laake filed a pro se complaint based on the same
conduct that brought claims under the Federal Trade
Commission Act (“FTCA”) and the False Claims Act
(“FCA”), and alleged that Lulu had committed the
tort of “destruction of intellectual property.”
Laake v. Lulu Enters, Inc., No. 5:16-CV-768-FL (E.D.
N.C. filed Aug. 25, 2016) (“Laake I ”).
paid the filing fee in Laake I, so it proceeded
without a frivolity review. Lulu appeared in the case and
asked the court to dismiss the complaint, arguing that it
failed to state a claim for relief. The court ultimately
dismissed Laake's complaint after it found that the FTCA
does not grant a private right of action, the FCA only
addresses fraud against the government, and the tort claim
was not recognized under any body of law. Laake I at
28 U.S.C. § 1915, the court reviews a complaint to
eliminate those claims that unnecessarily impede judicial
efficiency and the administration of justice. The court must
dismiss any portion of the complaint it determines is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. Id. §
court may dismiss a complaint as frivolous because of either
legal or factual shortcomings. Neitzke v. Williams,
490 U.S. 319, 325 (1989). A cause of action is legally
frivolous if it is “based upon an indisputably
meritless legal theory and include claims of infringement of
a legal interest which clearly does not exist.”
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)
(quotations omitted). A complaint is factually frivolous when
its factual allegations are “fanciful, fantastic, and
delusional.” Denton v. Hernandez, 504 U.S. 25,
suits are those that constitute an abuse of the judicial
process. This abuse can take many forms: repeated filings of
the same legally insufficient claims, Ball v. Bristol
City Sheriff's Dep't, No. 7:10-CV-00350, 2010 WL
3199920, at *2 (W.D. Va. Aug. 12, 2010); knowingly submitting
a pleading that contains demonstrably false factual
statements, Galeas v. Byrd, No. 3:11-CV-543-RJC,
2011 WL 6370373, at *3 (W.D. N.C. Dec. 20, 2011)
aff'd, 469 Fed.Appx. 236 (4th Cir. 2012); filing
claims that are duplicative of pending litigation,
Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir.
1993); or submitting a pleading that contains threats or
demeans the court, Crisafi v. Holland, 655 F.2d
1305, 1309 (D.C. Cir. 1981).
complaint fails to state a claim upon which relief may be
granted if it does not “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The Supreme Court has
explained that “[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.” Id. Martin's
status as a pro se party relaxes, but does not eliminate, the
requirement that his complaint contain facially plausible
claims. The court must liberally construe a pro se plaintiffs
allegations, but it “cannot ignore a clear failure to
allege facts” that set forth a cognizable claim.
Johnson v. BAC Home Loans Servicing, LP, 867
F.Supp.2d 766, 776 (E.D. N.C. 2011).
the court may dismiss a complaint if it seeks monetary relief
from a defendant who is immunized from liability for monetary
damages. This immunity can take any number of forms,
including, but not limited to, immunity under the Eleventh
Amendment, see Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001), or common-law
doctrines such as judicial, legislative, and prosecutorial
immunity, see Pierson v. Ray, 386 U.S. 547 (1967).
Amended Complaint does not appear to be frivolous or
malicious, and Lulu, as a private company, is not immune from
suit; the primary issue is whether Laake ...