McCready v. Ebay, Inc.
| Citation | 453 F.3d 882 |
| Decision Date | 10 July 2006 |
| Docket Number | No. 05-2450.,No. 05-3043.,05-2450.,05-3043. |
| Parties | Kenneth A. McCREADY, Plaintiff-Appellant, v. EBAY, INC., Bruce Kamminga, and David McDuffee, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Kenneth A. McCready, Loda, IL, pro se.
Daniel J. Voelker, Michael T. Franz, Freeborn & Peters, Chicago, IL, for Defendant-Appellee.
Bruce Kamminga, Caledonia, MI, pro se.
David McDuffee, Caledonia, MI, pro se.
Before EASTERBROOK, MANION, and KANNE, Circuit Judges.
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 allegations (and the respective outcomes) do not. In fact, 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.
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 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 , 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 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 parties filed with the magistrate judge a stipulation to dismiss 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 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 adopting the magistrate judge's recommendation. McCready appealed. Affirming in an unpublished order, the Sixth Circuit noted:
McCready accomplished the following in his objections to the magistrate judge's report and recommendation: 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 recommendation 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 Fed.Appx. 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 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. Nonetheless, 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 rendered 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).
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 his or her favor." Barnes v. Briley, 420 F.3d 673, 677 (7th Cir.2005) (citation and...
To continue reading
Request your trial
-
In re Sony Gaming Networks & Customer Data Sec. Breach Litig., MDL No.11md2258 AJB (MDD)
..."business, commercial[,] or professional purposes" are not considered consumer reporting agencies under the FCRA. McCready v. eBay, Inc., 453 F.3d 882, 889 (7th Cir. 2006) (quoting Ippolito v. WNS, Inc., 864 F.2d 440, 452 (7th Cir. 1988)); FTC v. Gill, 265 F.3d 944, 948 (9th Cir. 2001) ("Co......
-
Bio-med. Applications Of Ga. Inc v. City Of Dalton
...and the location of its principal place of business. Joiner v. Diamond M Drilling Co., 677 F.2d 1035, 1039 (5th Cir.1982); see also McCready, 453 F.3d at 891 (dismissing complaint where party failed to principal place of business of corporation). Because Plaintiff has failed to plead divers......
-
Vasquez v. Raemisch
...health services unit manager). With respect to respondent Floelich, petitioner has pleaded himself out of court. McCready v. EBay, Inc., 453 F.3d 882, 888 (7th Cir.2006) (plaintiff may plead himself out of court by alleging facts that preclude recovery). Petitioner concedes that Floelich or......
-
Taurus Ip v. Daimlerchrysler Corp.
...the motion to dismiss if such documents are referred to in the complaint and are central to the plaintiff's claim. McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006). In this case, defendants attach to their counterclaims and third party complaints a redacted version of the patent Li......
-
COMPUTER CRIMES
...that the business exception is met when intercepted calls are not personal in nature). 398. 18 U.S.C. § 2520(d); McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006) (holding good faith exception applies to both the Wiretap Act and SCA and therefore the court does not need to reach whe......
-
Computer Crimes
...the business exception is met when intercepted calls are not personal in nature). 417. 18 U.S.C. § 2520(d); McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006) (holding good faith exception applies to both the Wiretap Act and SCA and therefore the court does not need to reach whether ......
-
Computer Crimes
...that the business exception is met when intercepted calls are not personal in nature). 398. 18 U.S.C. § 2520(d); McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006) (holding good faith exception applies to both the Wiretap Act and SCA and therefore the court does not need to reach whe......
-
Subject Matter Jurisdiction in Antitrust and Business Tort Litigation
...(1991) (addition of nondiverse, nonessential party cannot destroy jurisdiction). 44. 28 U.S.C. § 1653; see also McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006) (noting “[w]hen diversity jurisdiction is not properly alleged, typically [the court will] allow a plaintiff to amend his......