(PS) Rojas v. Dunkin' LLC ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT EUGENE ROJAS, No. 2:22–cv–1602–DAD–KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST AND FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS 14 DUNKIN, LLC, et al., (ECF No. 5.) 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 5.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United 26 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 Legal Standards 2 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 3 relief can be granted.” Rule 12(b)(6). A complaint fails to state a claim if it either lacks a 4 cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. Netflix, 5 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, a 6 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 7 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 8 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 9 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a 11 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff 12 pleads factual content that allows the court to draw the reasonable inference that the defendant is 13 liable for the misconduct alleged.” Id. 14 When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the well-pleaded factual allegations as true, Erickson v. Pardus, 551 U.S. 16 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan 17 v. Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 18 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 19 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 20 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). Pro se pleadings are to be liberally construed. 21 Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (liberal construction appropriate even 22 post–Iqbal). Prior to dismissal, the court is to tell the plaintiff of deficiencies in the complaint and 23 provide an opportunity to cure––if it appears at all possible the defects can be corrected. See 24 Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment 25 would be futile, no leave to amend need be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 26 339 (9th Cir. 1996). 27 /// 28 /// 1 Analysis 2 Here, plaintiff alleges that he is the creator and founder of Island and Sugarhill Café, a 3 beverages service company. Plaintiff claims he holds a patent for coconut milk refreshers, as 4 demonstrated by a handwritten business plan and menu. Plaintiff is currently housed in the 5 Sacramento County Main Jail. According to the complaint, agents of the California Department 6 of Corrections and Rehabilitation (CDCR), including defendant Dr. Patterson (a CDCR 7 psychologist) obtained plaintiff’s manuscript and business plans in 2019. Sometime in August of 8 2021, unnamed defendants gave these documents to another inmate. From April to November of 9 2021, plaintiff saw advertisements from defendants Dunkin and Starbucks resembling 10 components on his documents. Plaintiff sent these organizations cease and desist letters, but 11 despite this defendants continue to offer these services. Plaintiff alleges a claim under 35 U.S.C 12 § 271 for direct infringement, contributory infringement, and inducement of infringement, and 13 names both himself and his company as plaintiffs. Plaintiff seeks monetary damages, attorneys 14 fees for himself, and an injunction, among other relief. (See ECF No. 1.) However, plaintiff’s 15 complaint fails to state a claim for patent infringement and is otherwise legally frivolous. 16 Title 35 U.S.C § 271(a) states “whoever without authority makes, uses, offers to sell, or 17 sells any patented invention, within the United States ... infringes the patent.” Key to any claim 18 of patent infringement (direct, contributory, or induced) is that a patent actually exist. 19 Woodbridge v. United States, 263 U.S. 50 (1923) (noting the term of patent protection runs from 20 the date of issuance). Generally speaking, the sale of an infringing product before a patent is 21 issued does not constitute infringement or inducement to infringe. See Foster v. American Mach. 22 & Foundry Co., 492 F.2d 1317 (2d Cir. 1974). Simply, no suit to enforce a patent right may be 23 maintained until after the patent has issued. Gayler v. Wilder, 51 U.S. 477 (1850). Plaintiff’s 24 complaint indicates he does not have a patent, but merely has hand-drawn business plans. (ECF 25 No. 1 at 10-35.) Thus, for this (among other reasons not reached here), plaintiff’s claims are 26 dismissible for failure to state plausible facts on which an infringement claim might be based, and 27 are otherwise legally frivolous. See Iqbal, 556 U.S. 662, 678; see also Neitzke v. Williams, 490 28 U.S. 319, 327 (1989) (noting a court has authority to dismiss a claim as frivolous where it is 1 | based on an indisputably meritless legal theory or where the factual contentions are clearly 2 || baseless). 3 Ordinarily, the court liberally grants a pro se plaintiff leave to amend. However, because 4 || the record here shows that plaintiff would be unable to cure the above-mentioned deficiencies 5 || through further amendment of the complaint, the court concludes that granting leave to amend 6 || would be futile. Cahill, 80 F.3d at 339. 7 ORDER AND RECOMMENDATIONS 8 Accordingly, IT IS HEREBY ORDERED that plaintiff's IFP application is GRANTED. 9 Further, it is RECOMMENDED that: 10 1. The action be DISMISSED WITH PREJUDICE; 11 2. The Clerk of Court be directed to CLOSE this case. 12 | These findings and recommendations are submitted to the United States District Judge assigned to 13 || the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after 14 | being served with these findings and recommendations, plaintiff may file written objections with 15 || the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 16 || Recommendations.” Plaintiffis advised that failure to file objections within the specified time 17 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 18 | (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 19 | Dated: November 7, 2022 20 Aectl Aharon 21 KENDALL J. NE roja.1602 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28