United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter comes before the court on frivolity review of
plaintiff's pro se complaint, pursuant to 28
U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b),
United States Magistrate Judge Robert T. Numbers, II, entered
a memorandum and recommendation (“M&R”),
wherein it is recommended that the court dismiss
plaintiff's claims with prejudice (DE 11). Plaintiff
filed objections to the M&R (DE 12). In this posture, the
issues raised are ripe for ruling. For the following, the
court adopts the M&R, and dismisses the action with
commenced this action with a motion for leave to proceed in
forma pauperis on September 26, 2018, accompanied by proposed
complaint and several exhibits, asserting a claim against
defendant, an alleged web-based digital publishing and
distribution service, based upon destruction of
plaintiff's intellectual property, in violation of N.C.
Gen. Stat. § 14-127. In his original proposed complaint,
plaintiff sought trebled damages under the unfair and
deceptive trade practices act, N.C. Gen. Stat. § 75-16,
compensatory damages, and punitive damages. Upon initial
frivolity review, the magistrate judge recommended dismissal
of plaintiff's claim without prejudice, because the
statute upon which plaintiff relied for his claim, §
14-127, is a criminal statute not providing a cause of
filed a motion for leave to amend on December 11, 2018. This
court thereafter adopted the initial magistrate judge
recommendation to dismiss the original complaint without
prejudice, but allowed plaintiff to file an amended complaint
as of right, and recommitted the matter to the magistrate
judge for frivolity review of the amended complaint.
amended complaint, plaintiff again asserts a claim against
defendant based upon destruction of plaintiff's
intellectual property, this time referencing N.C. Gen. Stat.
§ 1-52(16) (three year statute of limitation for suit
for property damages in the State of North Carolina) and
California Penal Code § 502(c). Plaintiff again seeks
trebled damages under the unfair and deceptive trade
practices act, N.C. Gen. Stat. § 75-16, compensatory
damages, and punitive damages.
M&R entered March 1, 2019, the magistrate judge
recommends dismissal of plaintiff's action in its
entirety on the basis of res judicata, where this
court previously dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6) an action brought by plaintiff against
defendant, in the case Laake v. Lulu Enterprises,
Inc., No. 5:16-CV-768-FL, 2016 WL 6210779, at *2 (E.D.
N.C. Oct. 24, 2016) (hereinafter “Laake
I”). In the alternative, the magistrate judge
recommends dismissal with prejudice of plaintiff's
instant claims for failure to state a claim upon which relief
can be granted.
objections, plaintiff opposes dismissal and seeks an
opportunity to file a second amended complaint.
Standard of Review
district court reviews de novo those portions of a magistrate
judge's M&R to which specific objections are filed.
28 U.S.C. § 636(b). The court does not perform a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
636(b)(1). Under 28 U.S.C. § 1915(e)(2), the court may
dismiss an action that is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
complaint may be found frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). Additionally, a
complaint fails to state a claim if it does not
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face,
” sufficient to “allow[ ] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). In evaluating
whether a claim has been stated, “[the] court accepts
all well-pled facts as true and construes those facts in the
light most favorable to the plaintiff, ” but does not
consider “legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement [, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009) (citations omitted).
magistrate judge correctly determined that the instant action
must be dismissed upon frivolity review on the basis of
res judicata. That doctrine “bars a party from
suing on a claim that has already been litigated to a final
judgment by that party or such party's privies and
precludes the assertion by such parties of any legal theory,
cause of action, or defense which could have been asserted in
that action.” Ohio Valley Envtl. Coal. v. Aracoma
Coal Co., 556 F.3d 177, 210 (4th Cir. 2009). “For
res judicata to prevent a party from raising a
claim, three elements must be present: (1) a judgment on the
merits in a prior suit resolving (2) claims by the same
parties or their privies, and (3) a subsequent suit based on
the same cause of ...