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Laake v. Lulu Enterprises, Inc.

United States District Court, E.D. North Carolina, Western Division

March 1, 2019

John Laake, Plaintiff,
v.
Lulu Enterprises, Inc., Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge

         In 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.

         Laake 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.

         I. Background

         Laake 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.

         But 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 ”).

         Laake 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 *1-2.

         II. Analysis

         Under 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. § 1915(e)(2)(B).

         The 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, 32-33 (1992).

         Malicious 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).

         A 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).

         Finally, 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).

         Laake's 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 ...


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