Trisvan v. Regal Entm't Grp.

• Decision Date: 17 February 2021
• Docket Number: 21-CV-187 (MKB)
• Parties: JOHN TRISVAN, Plaintiff, v. REGAL ENTERTAINMENT GROUP and CINEWORLD, Defendants.
• Court: U.S. District Court — Eastern District of New York

JOHN TRISVAN, Plaintiff, v. REGAL ENTERTAINMENT GROUP and CINEWORLD, Defendants.

21-CV-187 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

February 17, 2021

NOT FOR PUBLICATION

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff John Trisvan, proceeding pro se, commenced the above-captioned action against Defendants Regal Entertainment Group ("Regal") and Cineworld on January 8, 2021, alleging that he "fell ill" after consuming a soft drink and popcorn at Regal Cinemas in Brooklyn, New York, and seeking relief pursuant to the Clayton Act, the Magnuson-Moss Warranty Act (the "MMWA"), and the Uniform Commercial Code (the "U.C.C."). (Compl. 2, Docket Entry No. 1.)¹ The Court grants Plaintiff's application to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (Mot. for Leave to Proceed IFP, Docket Entry No. 4.)

For the reasons set forth below, the Court dismisses the Complaint and grants Plaintiff leave to file an amended complaint within thirty days of this Memorandum and Order.

I. Background

The Court assumes the truth of the factual allegations in the Complaint for the purposes of this Memorandum and Order.

a. Factual background

Plaintiff alleges that on January 12, 2018, he went to see a movie at Regal's theatre located at 106 Court Street in Brooklyn, New York, where he "consumed a soft drink and popcorn" and subsequently "fell ill." (Compl. 2.) A week later, on January 19, 2018, he went to see another movie, where he "consumed a soft drink and popcorn, which again[] gave an adverse effect similar to food poisoning[,] which was discovered once Plaintiff went to be seen by doctors at Woodhull Hospital." (Id.) Plaintiff seeks $225,000 in "punitive and compensatory relief." (Id. at 4.)

b. Plaintiff's litigation history

This is Plaintiff's fourth action against various entities asserting claims under the Clayton Act, the MMWA, and the U.C.C. based on alleged food poisoning. See Trisvan v. Ky. Fried Chicken Corp., No. 20-CV-2071, 2021 WL 327728, at *5 (E.D.N.Y. Feb. 1, 2021) (dismissing amended complaint); Trisvan v. Burger King Corp., No. 19-CV-6396, 2020 WL 1975236, at *4 (E.D.N.Y. Apr. 24, 2020) (dismissing amended complaint); Trisvan v. Checkers Drive-In Rests., Inc., No. 16-CV-7000, 2020 WL 906635, at *6-7 (E.D.N.Y. Feb. 18, 2020) (dismissing fourth amended complaint), appeal dismissed, No. 20-1271 (2d Cir. Oct. 1, 2020).

II. Discussion

a. Standard of review

A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Benefit Guar.Corp. ex rel. Saint Vincent Cath. Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed to be true, this principle is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. In reviewing a pro se complaint, a court must be mindful that a plaintiff's pleadings must be held "to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, courts "remain obligated to construe a pro se complaint liberally"). Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if the Court determines it "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

In addition, pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, if a court "determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3); see also Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) ("A district court properly dismisses an action under [Rule 12(b)(1) of the Federal Rules of Civil Procedure] for lack of subject matter jurisdiction if the court 'lacks the statutory or constitutional power to adjudicate it.'" (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000))); Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) ("[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking, the action must be dismissed.").

b. Plaintiff fails to state his federal claims

Plaintiff invokes the Court's federal question jurisdiction with regard to his claims that "all defendants . . . violated the Clayton Act . . . and the [MMWA]." (Compl. 2.)

Federal courts are courts of limited jurisdiction and may not hear cases if they lack subject matter jurisdiction over the issues presented. Lyndonville Sav. Bank & Tr. Co., 211 F.3d at 700-01. "In 28 U.S.C. §§ 1331 and 1332(a), Congress granted federal courts jurisdiction over two general types of cases: cases that 'aris[e] under' federal law, § 1331, and cases in which the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties, § 1332(a)." Home Depot U.S.A., Inc. v. Jackson, 587 U.S. ---, ---, 139 S. Ct. 1743, 1746 (May 28, 2019) (alteration in original) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005)). Federal question jurisdiction provides federal courts jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Bounds v. Pine Belt Mental Health Care Res., 593 F.3d 209, 215 (2d Cir. 2010) (quoting 28 U.S.C. § 1331). A plaintiff properly invokes section 1331 jurisdiction when he or she pleads a colorable claim "arising under" the Constitution or laws of the United States. Id.; see also Fairfield Cnty. Med. Ass'n v. United Healthcare of New Eng., Inc., 557 F. App'x 53, 55 (2d Cir. 2014) ("A cause of action 'arises under' federal law and thus confers subject matter jurisdiction pursuant to 28 U.S.C. § 1331 'when the plaintiff's "well-pleaded complaint" raises an issue of federal law.'" (quoting New York v. Shinnecock Indian Nation, 686 F.3d 133, 138 (2d Cir. 2012))).

i. Antitrust claims

Plaintiff alleges that Defendants violated the Clayton Act. (Compl. 2.)

"Section 1 of the Sherman Act prohibits '[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.'"US Airways, Inc. v. Sabre Holdings Corp., 938 F.3d 43, 54 (2d Cir. 2019) (alteration in original) (quoting 15 U.S.C. § 1). However, "[s]ection 1 of the Sherman Act does not itself provide a private right of action." In re Publ'n Paper Antitrust Litig., 690 F.3d 51, 62 (2d Cir. 2012). Rather, "[s]ection 4 of the Clayton Act establishes a private right of action for violation of federal antitrust laws, permitting 'any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws' to sue in federal court." Eastman Kodak Co. v. Henry Bath LLC, 936 F.3d 86, 93 (2d Cir. 2019) (quoting 15 U.S.C. § 15(a)); In re SSA Antitrust Bonds Litig., 420 F. Supp. 3d 219, 229 (S.D.N.Y. 2019) ("[T]he private right of action to pursue antitrust claims is provided by the Clayton Act[.]" (second alteration in original) (quoting Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. (In re Vitamin C Antitrust Litig.), No. 05-CV-453, 2012 WL 12355046, at *5 (E.D.N.Y. Aug. 8, 2012))); Ruotolo v. Fannie Mae, 933 F. Supp. 2d 512, 519 (S.D.N.Y. 2013) ("At the threshold, [the] [p]laintiff cannot actually sue directly under the Sherman Act, 15 U.S.C. § 1, because 'Section 1 of the Sherman Act does not itself provide a private right of action.'" (quoting In re Publ'n Paper Antitrust Litig., 690 F.3d at 62)). "Despite the broad language of the statute, courts have carefully parsed antitrust standing in order to avoid counter-productive use of antitrust laws in ways that could harm competition rather than protecting it." Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Serpa Corp. v. McWane, Inc., 199 F.3d 6, 10 (1st Cir. 1999)). Standing is required because "the purpose of the Clayton Act's private right of action is not 'to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation,' but only for injuries 'of the type that the antitrust statute was intended to forestall.'" Eastman Kodak Co., 936 F.3d at 94 (quoting Associated Gen. Contractors, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 535, 540 (1983)). "To satisfy the antitruststanding requirement, a private antitrust plaintiff must demonstrate that (1) it has suffered 'a special kind of antitrust injury,' and (2) it is an 'efficient enforcer' of the antitrust laws." Id. (quoting Port Dock & Stone Corp., 507 F.3d at 121). Courts "employ a three-step process for determining whether a plaintiff has sufficiently alleged antitrust injury," under which they (1) consider whether "the party asserting that it has been injured by an illegal anticompetitive practice [has] 'identif[ied] the practice complained of and the reasons such a practice is or might be anticompetitive'"; (2) consider "how the practice identified by the plaintiff put the plaintiff in a 'worse position'"; and (3) compare the "'anticompetitive effect of the specific practice at issue' to 'the actual injury the plaintiff alleges.'" Id. (quoting Gatt Commc'ns, Inc. v. PMC Assocs. L.L.C., ...