Opinion
Case No. 3:20-cv-2255-JR
02-18-2021
KEVIN NESBIT, Plaintiff, v. BLUE STREAK ELECTRONICS (A Florida based Co Entity) DBA BSE Original, Defendant.
FINDINGS AND RECOMMENDATION :
Pro se plaintiff, Kevin Nesbit, brings this action alleging "deceptive trade practices." On January 6, 2021, the Court granted plaintiff's application for in forma pauperis (IFP) status. In granting plaintiff's IFP application, the Court also dismissed the complaint for failing to allege a cause of action. The Court granted plaintiff leave to amend his complaint to address the noted deficiencies.
Plaintiff does not allege a claim under Oregon's Unlawful Trade Practices Act, Or. Rev. Stat. § 646.605, et seq. The Act "does not create a warranty obligation and does not apply to a dispute over the quality of real estate, goods or services delivered to a customer." Or. Rev. Stat. Ann. § 646.607(2). --------
In his initial complaint, plaintiff alleged:
On or about February 12, 2020 The plaintiff purchased an ECU (Electronic Control Unit) from AutoZone at 14600 se Sunny side Rd, Clackamas Oregon 97015. That was refurbished By the named above Defendant BLUE STREAK ELECTRONICS A Florida based Co entity. Who resold as better than new product. The named above Defendant advertised this-product "to meet or exceed vehicle performance specifications " The plaintiff ended up buying 3 different ECU's from Autozone all refurbished from above named defendant. All ECU's failed. Each ECU was Taken to 3 different electronics specialist for testing. All specialist confirmed that all 3 ECU can not work As advertised. Circuit boards inside the ECU's are of poor quality and will not give out a proper signal To the vehicle's function. It has been concluded that all 3 ECU's could not have been tested properly and Should have never left the manufacturer in a not working condition. An Autozone employee said "Don't Feel bad these get returned all the time". The named above Defendant is simply falsely reselling junk parts branded and Advertised as better than new and they don't even work.Complaint (ECF 1) at p. 1.
Plaintiff sought damages in the amount of $885 for repairs and $2,500,000 for the infliction of emotional distress.
The Court noted plaintiff did not explicitly allege a cause of action beyond suggesting claims based in contract for breach of implied or express warranties and based in tort for intentional infliction of emotional distress and negligence. The Court also noted plaintiff failed to allege the basis for jurisdiction. The Court instructed plaintiff regarding federal subject matter jurisdiction as well as jurisdiction based on diversity. See Order (ECF 5) dated January 6, 2021.
On January 14, 2021, plaintiff submitted an amended complaint (ECF 6) which does not appear to amend the allegations of the initial complaint. On January 25, 2021, plaintiff submitted another amended complaint (ECF 8). In that amended complaint plaintiff adds the following allegation:
The Plaintiff Kevin Nesbit has spent unnecessary borrowed money trying to repair his car because he believed the Defendants advertising on the side of the box. The Defendant put out ... less than subpar auto parts and falsely glorified them as being tested beyond factory specifications. The Defendant knowingly shipped defective
parts across state lines and all over the world violating federal laws 18 U.S. Code 2314. With ... an estimated 70% of them being returned defective.Amended Complaint (ECF 8) at p. 1.
In addition, plaintiff adds damages of $1,109.47 for "multiple testing to multiple Co's that specialize in electronics testing." Id. at p. 2. Furthermore, plaintiff asserts his request for $2,500,000 in damages is for punitive damages and deletes any reference to the intentional infliction of emotional distress. Id.
The only cause of action plaintiff identifies is based on a criminal statute regarding transportation of stolen goods or articles used in counterfeiting. See 18 U.S.C. § 2314. However, plaintiff does not have standing to bring an action under that statute. See Crawford v. Adair , 2008 WL 2952488, *2 (E.D.Va. Jul. 29, 2008) (finding plaintiff does not have standing to bring an action under 18 U.S.C. § 2314 because section 2314 is a criminal statute and does not provide a private cause of action). Plaintiff does not otherwise allege federal subject matter jurisdiction. Moreover, in addition to failing to allege a cause of action based on state law, plaintiff also fails to allege facts supporting diversity jurisdiction.
The Court has alerted plaintiff to the deficiencies in the complaint and plaintiff has submitted two amended complaints in an attempt to cure those deficiencies. Accordingly, further leave to amend would be futile and this action should be dismissed.
CONCLUSION
This action should be dismissed and a judgment of dismissal without prejudice should be entered.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 18th day of February, 2021.
/s/ Jolie A. Russo
Jolie A. Russo
United States Magistrate Judge