McCready, Kenneth A. v. Ebay Incorporated ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2450 & 05-3043
KENNETH A. MCCREADY,
Plaintiff-Appellant,
v.
EBAY, INC.,
BRUCE KAMMINGA,
and DAVID MCDUFFEE,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 03 C 2117—Michael P. McCuskey, Chief Judge.
No. 05 C 2033––Harold A. Baker, Judge.
____________
SUBMITTED JANUARY 19, 2006—DECIDED JULY 10, 2006
____________
Before EASTERBROOK, MANION, and KANNE, Circuit
Judges.
KANNE, Circuit Judge. Kenneth McCready has used the
federal and state courts to harass eBay, Inc. and eBay’s
customers. Acting pro se, McCready has brought suits in
many different courts, including: twice in the United States
District Court for the Central District of Illinois, the United
States District Court for the Eastern District of Michigan,
United States Bankruptcy Court for the Northern District
of Illinois, and Iroquois County (Illinois) Circuit Court.
Although McCready’s choice of fora may differ, his allega-
tions (and the respective outcomes) do not. In fact,
2 Nos. 05-2450 & 05-3043
McCready has been wildly unsuccessful in each instance.
Here, the two suits filed in the Central District of Illinois
were dismissed, and we consolidated McCready’s appeals in
order to provide a better understanding of the litany of his
repetitive and frivolous legal maneuvers. For the reasons
stated below, we affirm. Additionally, we order McCready
to show cause why he should not be sanctioned for his
abuse of process.
I. HISTORY
McCready operated an online business in which he bought
and sold various items through several accounts he had
registered with eBay, the popular online marketplace. As
with all users, eBay required McCready to abide by its user
agreement. McCready’s dealings left several eBay users
dissatisfied, and they used eBay’s Feedback Forum to voice
their displeasure. The buyers complained that McCready
failed to deliver the goods he sold or delivered goods of
lower quality than he had advertised. eBay notified
McCready of the complaints and informed him that his
accounts would be suspended if he did not resolve them.
After investigating the claims, eBay suspended McCready’s
accounts in June or July 2002, and advised him that he
would be reinstated if he reimbursed the claimants. Rather
than make good on his sales, McCready embarked on
retaliatory litigation.
The first lawsuit originated in the bankruptcy court
for the Northern District of Illinois, where McCready had
filed for bankruptcy on April 17, 2002. On August 26, 2002,
McCready petitioned for sanctions against eBay, alleging
that eBay’s suspension of his account violated the automatic
stay provisions of 11 U.S.C. § 362(a). The bankruptcy court
denied McCready’s petition. In an order dated March 29,
2004, the district court, on appeal, affirmed, agreeing with
the bankruptcy court’s conclusion that eBay was not
Nos. 05-2450 & 05-3043 3
collecting debts but merely opting not to do business with
McCready.
McCready brought his second suit in Iroquois County
(Illinois) Circuit Court, where he filed a complaint against
eBay and other defendants on November 26, 2002. The
circuit court denied all of McCready’s claims and sanctioned
him $1000 for litigating in bad faith. The Appellate Court
of Illinois affirmed. McCready v. EBay, Inc., No. 3-03-1017
(Ill. App. Ct. May 27, 2005), cert. denied, 844 N.E.2d 39 (Ill.
2005).
Seeking to protect itself, eBay sued McCready on March
12, 2003, in California state court requesting declaratory
relief allowing eBay to terminate its dealings with
McCready. McCready removed the suit to federal court, but
eBay successfully caused the case to be remanded to state
court where default judgment was entered against
McCready.
In the third action (the first case on appeal, No. 05-2450),
McCready filed an 82-page complaint in the Central District
of Illinois on July 9, 2003, against eBay and numerous
users of eBay. McCready alleged violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq. (the
“FDCPA”), the Fair Credit Reporting Act, 15 U.S.C. § 1681,
et seq. (the “FCRA”), Title 11 of the U.S. Bankruptcy Code,
and the Electronic Fund Transfers Act, 15 U.S.C. § 1693, et
seq. (the “EFTA”). McCready alleged nine state law claims
as well.
On December 3, 2004, the district judge dismissed all
defendants other than eBay. On February 4, 2005, the court
issued an order ruling on eBay’s motion to dismiss. In its
order, the district court refused eBay’s request to apply res
judicata to the federal claims, explaining that the lawsuits
filed in California and Illinois state courts involved only
4 Nos. 05-2450 & 05-3043
state law.1 Rather, the court evaluated McCready’s federal
claims under Federal Rule of Civil Procedure 12(b)(6) and
dismissed the FDCPA and FCRA claims but left intact
McCready’s EFTA claim. The district judge declined to
exercise supplemental jurisdiction over McCready’s state
law claims, finding they raised novel issues of state law. He
referred the case to a magistrate judge for disposition.
Before proceedings with the magistrate judge got under
way, McCready filed with the district judge a motion to
reconsider his ruling dismissing his federal claims and
declining to exercise supplemental jurisdiction over his
state law claims. The district judge denied this motion.
Soon thereafter, McCready filed with the district judge
a second motion to reconsider, arguing that the district
judge had misunderstood the basis of his claims. The
district judge denied this motion as well. Then the par-
ties filed with the magistrate judge a stipulation to dis-
miss McCready’s only remaining claim (under the EFTA)
with prejudice. The magistrate judge obliged on May 12,
2005.
The fourth lawsuit, which gives rise to the fifth, was filed
by McCready in the Western District of Michigan and
involved an eBay transaction. McCready had threatened
legal action against Bruce Kamminga because Kamminga
sold a snowmobile to another buyer despite McCready
having placed the highest bid. After McCready became
aware that Kamminga had consulted with David McDuffee,
a lawyer, McCready sued both of them, alleging violations
of the FDCPA in addition to various state law claims.
The defendants moved to dismiss, and the matter was
referred to a magistrate judge. The magistrate judge
1
Because eBay prevails on other grounds, we need not consider
whether the district court’s decision was correct.
Nos. 05-2450 & 05-3043 5
converted the motion to dismiss to a motion for summary
judgment and recommended that the district judge grant
relief to the defendants. The district judge did so by adopt-
ing the magistrate judge’s recommendation. McCready
appealed. Affirming in an unpublished order, the Sixth
Circuit noted:
McCready accomplished the following in his objec-
tions to the magistrate judge’s report and recommenda-
tion: he repeatedly and inappropriately insulted the
magistrate judge; he insisted on the accuracy of his
factual and legal assertions; he characterized the
defendants as liars; and he threatened the district court
with promises to file for a writ of mandamus if his
cause of action was dismissed. McCready, however,
failed to address the merits of the substantive issues
raised in his complaint, challenged in the defendants’
motion to dismiss, and reviewed by the magistrate
judge. Rather, McCready filed a rambling, 143-page
objection to the magistrate judge’s report and recom-
mendation that contained numerous fundamental flaws
in reasoning and analysis. McCready offered
bold conclusions regarding facts and the law with little,
if any support.
McCready v. Kamminga, 113 F.App’x. 47, 49 (6th Cir. 2004).
What McCready failed to accomplish with his objections, the
Sixth Circuit held, was to preserve any issues for appeal. Id.
Notably, appended to the defendants’ appellate brief was a
subpoena, issued by the court below, directing eBay to
produce documentation relating to McCready.
In the fifth lawsuit (the second case on appeal, No. 05-
3043), McCready filed a two-count complaint again in
the Central District of Illinois, naming Kamminga,
McDuffee, and eBay as defendants. McCready alleged
eBay’s production of documents in compliance with the
subpoena in the Michigan case violated Title I of the
6 Nos. 05-2450 & 05-3043
Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-
2522 (the “ECPA”), and Title II of the ECPA, the Stored
Communications Act, 18 U.S.C. §§ 2701-2712 (the “SCA”).
On June 13, 2005, the district court dismissed McCready’s
claims under Rule 12(b)(6) and stated:
[T]his court warned the parties that it would not allow
this case to become trapped in a thicket of motions
meant to harass adverse parties, increase the costs
of the litigation, and cause vexatious delay. Nonethe-
less, between May 5 and May 18, 2005, McCready
filed five motions. First, McCready filed a motion for
default judgment and motion for entry of default
against Kamminga [who was proceeding pro se] for
filing an inartful answer to the complaint. Then on May
10, 2005, he filed a motion to strike McDuffee’s answer
to the complaint and find McDuffee in contempt. Also
on May 10, 2005, McCready filed a motion to advance
the filing date of a motion for sanctions against
Kamminga, since Kamminga had filed an answer to
McCready’s proposed motion for sanctions. On May 12,
2005, McCready filed a motion to strike McDuffee’s
motion to dismiss, and on May 18, 2005, he filed the
motion for sanctions against Kamminga, which ren-
dered moot [his motion to advance the filing date].
McCready appeals the dismissal of both cases filed in
the Central District of Illinois (No. 05-2450 and No. 05-
3043).
II. ANALYSIS
We review de novo a district court’s granting of a motion
to dismiss under Rule 12(b)(6). Stachowski v. Town of
Cicero, 425 F.3d 1075, 1078 (7th Cir. 2005). “We construe
the complaint in the light most favorable to the plaintiff,
taking as true all well-pleaded factual allegations and
making all possible inferences from those allegations in
Nos. 05-2450 & 05-3043 7
his or her favor.” Barnes v. Briley, 420 F.3d 673, 677 (7th
Cir. 2005) (citation and quotations omitted). Dismissal is
proper “only if it ‘appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.’ ” Id. (quoting Lee v. City of Chicago,
330 F.3d 456, 459 (7th Cir. 2003)).
The defendants’ argument incorrectly centers around
substantive elements McCready “failed to aver.” All
McCready was required to do in his complaint was to
provide a short and plain statement showing that he was
entitled to relief, so as to put the defendants on notice of his
claims and their basis. Thompson v. Ill. Dep’t of
Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002).
But “if the plaintiff chooses to provide additional facts,
beyond the short and plain statement requirement, the
plaintiff cannot prevent the defense from suggesting that
those same facts demonstrate the plaintiff is not entitled to
relief.” Id. (citations omitted). In other words, if a plaintiff
pleads facts which show he has no claim, then he has pled
himself out of court. Jefferson v. Ambroz, 90 F.3d 1291,
1296 (7th Cir. 1996). And so the proper inquiry is not what
McCready did not allege, but what he did allege. See Kolupa
v. Roselle Park Dist., 438 F.3d 713, 714 (2006) (Any defen-
dant “tempted to write ‘this complaint is deficient because
it does not contain . . .’ should stop and think: What rule of
law requires a complaint to contain that allegation?”
(quoting Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005)
(emphasis in original)).
8 Nos. 05-2450 & 05-3043
A. No. 05-2450: McCready v. eBay, Inc.
1. McCready’s Fair Debt Collection Practices Act
(“FDCPA”) Claim
The FDCPA prevents debt collectors from using “any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. The FDCPA applies only to “debt collectors” whose
conduct involves the collection of a debt. Neff v. Capital
Acquisitions & Mgmt. Co., 352 F.3d 1118, 1121 (7th Cir.
2003) (citing Pettit v. Retrieval Masters Creditors Bureau,
Inc., 211 F.3d 1507, 1509 (7th Cir. 2000)). A “debt collector”
is defined by the FDCPA to be “any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be
owed or due another.” 15 U.S.C. § 1692a(6).
McCready admits that eBay’s principal purpose is not
to collect debts; rather McCready claims eBay falls under
the “second prong” of the FDCPA’s definition of “debt
collector” because eBay “regularly attempts” to collect debts.
What matters is not which prong of the FDCPA applies, but
McCready’s allegation that eBay suspended his account
until he “resolve” or “rectify” the fraud complaints outstand-
ing against him. To be a “debt collector” under the FDCPA
entails engaging in some affirmative conduct with regard to
collecting a debt, as evidenced by the statute’s use of active
verbs. See id. McCready’s allegations make clear that eBay
has remained passive and, at most, refused to act until he
resolves controversies with people independent of eBay,
without threatening to take collection action against
McCready should he not satisfy his customers. In no way
can this be construed as an effort by eBay to “collect” a debt.
Nos. 05-2450 & 05-3043 9
2. McCready’s Fair Credit Reporting Act (“FCRA”)
Claim
McCready complains that eBay’s “feedback profile”
contains false and misleading comments made by other
users of eBay, in violation of the FCRA. To come under the
ambit of the FCRA, eBay must be a “consumer reporting
agency,” which is defined by the FCRA to be:
any person which, for monetary fees, dues, or on a
cooperative nonprofit basis, regularly engages in
whole or in part in the practice of assembling or evalu-
ating consumer credit information or other information
on consumers for the purpose of furnishing consumer
reports to third parties, and which uses any means or
facility of interstate commerce for the purpose of
preparing or furnishing consumer reports.
15 U.S.C. § 1681a(f). McCready claims eBay’s Feedback
Forum is a “consumer report,” defined by the FCRA to be:
any written, oral, or other communication of any
information by a consumer reporting agency bearing on
a consumer’s credit worthiness, credit standing, credit
capacity, character, general reputation, personal
characteristics, or mode of living which is used or
expected to be used or collected in whole or in part for
the purpose of serving as a factor in establishing the
consumer’s eligibility for—(A) credit or insurance to
be used primarily for personal, family, or household
purposes; (B) employment purposes; or (C) any other
purpose authorized under [this title].
15 U.S.C. § 1681a(d)(1). What is evident from McCready’s
34 pages of allegations to support his FCRA “claim” is that
eBay’s Feedback Forum is not, for a variety of reasons, a
“consumer report.”
Suffice it to say, given the broad statutory purpose of
preserving individuals’ privacy, a “consumer” under
10 Nos. 05-2450 & 05-3043
§ 1681a(d)(1) must, at minimum, be an identifiable person.
See 15 U.S.C. § 1681(a)(4). Moreover, the FCRA applies only
to “consumer reports” which are used for consumer pur-
poses; “[i]t does not apply to reports utilized for business,
commercial or professional purposes.” Ippolito v. WNS, Inc.,
864 F.2d 440, 452 (7th Cir. 1988) (citations omitted)
(emphasis removed).
eBay’s Feedback Forum sorts information according to
eBay users’ self-anointed “usernames,” which leaves in-
tact their anonymity outside the eBay universe to the
extent they desire to retain it. And it is clear that the
Feedback Forum is used to inform eBay users’ decision to
buy from, or sell to, a particular user, an inherently com-
mercial activity. Because the Feedback Forum cannot
be considered a “consumer report,” by extension eBay
cannot be considered a “consumer reporting agency” within
the FCRA. Nor does eBay exert any control over what is
said in the Forum, which contains mere opinions of people
not in eBay’s employ.
3. McCready’s Bankruptcy Claims
McCready argues he alleged a rescission claim under
§§ 521 and 524 of the Bankruptcy Code and, because eBay
did not move to dismiss it, the court’s dismissal was an
improper sua sponte act. McCready asserts this claim lies
in paragraphs 554-56 of his complaint, which reads as
follows:
554. When plaintiff filed for bankruptcy court protection
in April, 2002, eBay also immediately upon learning of
that bankruptcy filing, closed his accounts.
555. When plaintiff agreed to pay eBay the fees he owed
it then for commissions and listing fees (approximately
$1300), eBay agreed to reinstate him to its good graces.
Nos. 05-2450 & 05-3043 11
556. This payment and subsequent agreement with
eBay constituted a non-conforming reaffirmation
agreement which, according to the Bankruptcy Code,
was required to have been reduced to a writing, signed
by both parties and authorized by the [B]ankruptcy
Court.
However, these paragraphs give no indication of any
injury McCready suffered or remedy he sought. It is unclear
whether he seeks to enforce or avoid the agreement, or to
obtain reinstatement of his account or recovery of his $1300.
Although we construe complaints by pro se litigants
liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), we
must do so while keeping in mind the purpose of the federal
pleading system is to provide notice of all claims, see Fed. R.
Civ. P. 8; see also Doe v. Smith, 429 F.3d at 708 (“Usually
[plaintiffs] need do no more than narrate a grievance simply
and directly, so that the defendant knows what he has been
accused of.”). The context of McCready’s allegations does not
provide any clarification. The three paragraphs are buried
in Count X, which is entitled “Breach of Contract” and
consists of 22 pages (155 paragraphs) of gobbledygook. It is
difficult enough to discern a freestanding federal claim
nestled within an expansive state law count and with only
a passing reference to the Bankruptcy Code, and consider-
ing the aforementioned deficiencies of his allegations, there
is no basis upon which to give McCready the benefit of the
doubt. Rather than provide notice of a claim, McCready did
just the opposite by hiding it, and we conclude that
McCready failed to state a claim for rescission.
12 Nos. 05-2450 & 05-3043
4. McCready’s State Law Claims
McCready’s Illinois state law claims included the Illinois
Consumer Fraud and Deceptive Business Practices Act;
tortious interference with prospective economic ad-
vantage; breach of contract; invasion of privacy; bad faith
insurance claim denial; conversion; fraud; and civil conspir-
acy. After dismissing all but one of McCready’s federal
claims, the district court, citing 28 U.S.C. § 1367(c)(1),
declined to exercise supplemental jurisdiction over
McCready’s state law claims, concluding they raised novel
issues which were better left to the Illinois courts to resolve.
In his motion to reconsider, McCready claimed to have
alleged in his complaint diversity jurisdiction over his state
law claims. The district court disagreed and noted that the
time had passed for McCready to amend his complaint. On
appeal, McCready argues diversity jurisdiction exists and
that he should be permitted to amend his complaint to cure
any defect. He also contends he never sought supplemental
jurisdiction over his state law claims.
Rule 8(a)(1) only requires “a short and plain statement”
of the jurisdictional basis, which, however “must be al-
leged affirmatively and distinctly and cannot be established
‘argumentatively or by mere inference.’ ” 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1206 (3d ed. 2004) (quoting Thomas v. Bd. of Trs. of Ohio
State Univ., 195 U.S. 207, 218 (1904)). “For a case to be
within the diversity jurisdiction of the federal courts,
diversity must be ‘complete,’ meaning that no plaintiff may
be a citizen of the same state as any defendant.” Fidelity &
Deposit Co. of Md. v. City of Sheboygan Falls, 713 F.2d
1261, 1264 (7th Cir. 1983) (citing Strawbridge v. Curtiss, 7
U.S. (3 Cranch) 267 (1806)). McCready’s complaint does not
mention eBay’s principal place of business; therefore he did
not allege complete diversity. See 28 U.S.C. § 1332(c); Casio,
Inc. v. S.M. & R. Co., Inc., 755 F.2d 528, 529-30 (7th Cir.
Nos. 05-2450 & 05-3043 13
1985) (“[T]he plaintiff must allege both the state of
incorporation and the state of the principal place of busi-
ness for each corporation.”) (citation omitted).
When diversity jurisdiction is not properly alleged,
typically we would allow a plaintiff to amend his com-
plaint to cure the deficiency or to supplement his brief to
provide clarification. See 28 U.S.C. § 1653; see also McDon-
ald v. Household Int’l, Inc., 425 F.3d 424, 426 (7th Cir.
2005); Barry Aviation, Inc. v. Land O’Lakes Mun. Airport
Comm’n, 377 F.3d 682, 687 (7th Cir. 2004); F & H.R.
Farman-Farmaian Consulting Eng’rs Firm v. Harza Eng’g
Co., 882 F.2d 281, 284 (7th Cir. 1989); Stockman v. LaCroix,
790 F.2d 584, 587 (7th Cir. 1986). Nevertheless, this is not
a typical case and no good purpose would be served by
allowing the action to continue. In this rare instance we
decline to allow McCready to amend his pleadings.
McCready, however, could take his state law claims to state
court, subject to eBay’s res judicata defense and any
sanctions the Illinois courts wish to levy.
B. No. 05-3043: McCready v. eBay, Inc., Kamminga, and
McDuffee
In the second case, No. 05-3043, McCready alleged that
McDuffee, acting as Kamminga’s lawyer, served eBay
with a “phony” subpoena. eBay complied with the subpoena
and gave McDuffee printouts of electronic communications
involving McCready. McCready claims he did not become
aware of the subpoena until his appeal to the Sixth Circuit
and that these events violated the ECPA and SCA.
At the 12(b)(6) stage, we typically would be confined to
McCready’s complaint, which did not contain the subpoena.
Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th
Cir. 2002). But Rule 10(c) provides that “[a] copy of any
written instrument which is an exhibit to a pleading is a
part thereof for all purposes.” From this rule, we have
14 Nos. 05-2450 & 05-3043
concluded “ ‘documents attached to a motion to dismiss are
considered part of the pleadings if they are referred to in
the plaintiff’s complaint and are central to his claim.’ ” 188
LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir.
2002) (quoting Wright v. Assoc. Ins. Cos., 29 F.3d 1244, 1248
(7th Cir. 1994)); see Cont’l Gas. Co. v. Am. Nat’l Ins. Co.,
417 F.3d 727, 731 n.3 (7th Cir. 2005) (“ ‘[T]his rule includes
a limited class of attachments to Rule 12(b)(6) motions’ that
are ‘central to the plaintiff’s claim.’ ”) (quoting Rosenblum,
299 F.3d at 661). We are “ ‘not bound to accept [McCready’s]
allegations as to the effect of the [subpoena], but can
independently examine the document and form [our] own
conclusions as to the proper construction and meaning to be
given the material.’ ” Rosenblum, 299 F.3d at 661 (quoting
5 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1327 at 766 (2d ed. 1990)). The heart of
McCready’s lawsuit is based upon the subpoena, to which
he made repeated reference in his complaint. The subpoena
was included by the defense in its motion to dismiss, and
there is no factual dispute as to its contents. Thus, we may
look at the subpoena without converting the motion
to dismiss into a motion for summary judgment.2
Good faith reliance on a subpoena is a complete defense
to actions brought under the ECPA and SCA. 18 U.S.C.
§§ 2520(d)(1), 2707(e). McCready alleges that eBay’s
compliance with the subpoena was not in good faith, but
2
Although it is incorrect to grant a motion to dismiss under
Rule 12(b)(6) on the basis of an affirmative defense, resolution is
appropriate here as a judgment on the pleadings under Rule 12(c).
Because the substantive issue involves the defendants’ good faith,
which may be shown with a facially valid subpoena, more evidence
could not have made a difference. See Doe v. GTE Corp., 347 F.3d
655, 657 (7th Cir. 2003); Smith v. Check-N-Go of Ill., Inc., 200
F.3d 511, 514 7th Cir. (1999) (citing Walker v. Nat’l Recovery, Inc.,
200 F.3d 500 (7th Cir. 1999)).
Nos. 05-2450 & 05-3043 15
a look at the subpoena shows otherwise. The subpoena
was issued by a federal district court and included the
title of the action and the cause number. The subpoena also
quoted the entirety of Rule 45(c) and (d), which details the
rights and duties of those subject to respond to a subpoena.
eBay received the subpoena by mail, which is not improper.
Nothing else gives any indication of irregularity sufficient
to put eBay on notice that the subpoena was “phony.”
Therefore there is no indication that eBay acted in any
fashion other than good faith, so that its compliance falls
squarely within the statutory defense.3 It is apparent, as
well, that McDuffee and Kamminga acted in good faith. The
subpoena was issued by a federal district court on behalf of
a defendant in a pending lawsuit, seeking information
about a party opponent which related to the case.
C. McCready’s Abuse of Process
McCready has abused the judicial process with frivolous
litigation. The result has been the harassment of opposing
parties, insult to judicial officers, and waste of limited and
valuable judicial resources. Not only have McCready’s
actions on eBay resulted in the filing of five frivolous
lawsuits, but our review of the dockets of the district courts
in this circuit reveal McCready has engaged in a pattern of
similar behavior against other innocent defendants.
In exercising our inherent power, we do so in a way
that is tailored to the abuse. Chambers v. NASCO, Inc., 501
U.S. 32, 44-45 (1991); Support Sys., Int’l. v. Mack, 45 F.3d
185, 186 (7th Cir. 1995) (per curiam) (citations omitted).
When dealing with a frivolous litigator who, despite due
warning or the imposition of sanctions, continues to waste
3
This means that we need not decide whether eBay is covered by
the ECPA and SCA in the first place.
16 Nos. 05-2450 & 05-3043
judicial resources, we impose a filing bar preventing the
litigant from filing in this court or any federal court in this
circuit. See Mack, 45 F.3d at 186. Usually such an order is
tied to a monetary incentive— such as the payment of
outstanding filing fees, the imposition of a fine, or both. See,
e.g., Montgomery v. Davis, 362 F.3d 956 (7th Cir. 2004). But
the satisfaction of an outstanding monetary obligation to
this court will not necessarily cause the bar to be lifted
when a minimum time period is imposed. See Mack, 45 F.3d
at 186 (allowing petition for reinstatement to be filed after
two years from entry of order).
McCready is hereby ordered to show cause within 30 days
why he should not be required to pay $2,500 to this court’s
clerk. Should McCready fail to respond or merely attempt
to reargue his case, then the $2,500 sanction will be
imposed and McCready will be barred from filing, with
appropriate exceptions, any paper in all federal courts in
this circuit for no less than two years.
III. CONCLUSION
For the foregoing reasons, the district courts were correct
to grant the defendants’ motions to dismiss, and their
judgments are AFFIRMED. Moreover, we order McCready to
show cause within 30 days why he should not be sanctioned
for his abuse of process.
Nos. 05-2450 & 05-3043 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-10-06