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Laake v. Lulu Enterprises, Inc.

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

April 25, 2019

JOHN LAAKE a/k/a/ Winter Laake, Plaintiff,
v.
LULU ENTERPRISES, INC. a/k/a Lulu Press, Inc., Defendant.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This 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 prejudice.

         BACKGROUND

         Plaintiff 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 action.

         Plaintiff 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.

         In his 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.

         In 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.

         In his objections, plaintiff opposes dismissal and seeks an opportunity to file a second amended complaint.

         COURT'S DISCUSSION

         A. Standard of Review

         The 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 relief.

         A 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).

         B. Analysis

         The 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 ...


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