Blocker v. Bandmine.Com et al

Motion to Dismiss for Failure to State a Claim . Oral Argument requested.

D. Or.October 19, 2016

Page 1 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 Garrett S. Garfield, OSB No. 093634 E-mail: garrett.garfield@hklaw.com HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 Fax: 503.241.8014 Attorneys for Defendant eBay Inc. UNITED STATES DISTRICT COURT DISTRICT OF OREGON TYRONE BLOCKER, Plaintiff, v. BANDMINE.COM; WEBNAMES CA INC.; EBAY INC., Defendants. Case No. 3:16-cv-01709-AC DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM REQUEST FOR ORAL ARGUMENT LR 7-1 CERTIFICATION Counsel for Defendant eBay Inc. (“eBay”) certifies that he conferred by telephone with pro se Plaintiff Tyrone Blocker on October 18, 2016 regarding the relief requested in this motion, but that the parties were unable to resolve the issues in dispute. Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 1 of 15 Page 2 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 MOTIONS Defendant eBay Inc. (“eBay”) moves the Court under Fed. R. Civ. P. 12(b)(6) for entry of an order dismissing Plaintiff’s Complaint with prejudice as against eBay, on the grounds that Plaintiff’s claims against eBay are barred by the doctrine of res judicata. eBay further moves the Court under 28 U.S.C. § 1927 for entry of an order awarding eBay its reasonable attorney fees and costs incurred in responding to Mr. Blocker’s Complaint. In connection with its motion to dismiss on res judicata grounds, eBay requests under Fed. R. Evid. 201 that the Court take judicial notice of its files and records in Case No. 3:14-cv-01650- SB (styled Blocker v. Universal Music Publishing Group, et al.), the relevant portions of which are attached to the concurrently-submitted Declaration of Garrett S. Garfield. In the alternative to its motion to dismiss on res judicata grounds, eBay moves the Court under Fed. R. Civ. P. 12(b)(6) for entry of an order dismissing Plaintiff’s complaint for failure to state a claim. POINTS AND AUTHORITIES A. Introduction This action represents the second time Plaintiff Tyrone Blocker has sued eBay and others for purportedly misusing his intellectual property relating to an entity called “Nestcoast” or “Nestcoast Entertainment.” In the prior action, the Court dismissed Mr. Blocker’s Fourth Amended Complaint with prejudice for failure to state a claim, and judgment was entered. The Court in Mr. Blocker’s prior action also determined that any appeal would not have been taken in good faith and Mr. Blocker’s in forma pauperis status should be revoked. Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 2 of 15 Page 3 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 Mr. Blocker did not appeal that judgment, but now inappropriately attempts to assert the same claim against eBay, again asserting violations of his intellectual property relating to “Nestcoast Ent.” This Court’s records show that this action is barred by the doctrine of res judicata. The action should be dismissed with prejudice, and eBay awarded its reasonable costs, expenses, and attorney fees. In the alternative, and even without reference to Mr. Blocker’s prior action, the Complaint fails to sufficiently state a claim for relief against eBay. This action should thus be dismissed. B. Legal Standards i. Res Judicata. The doctrine of res judicata bars parties from relitigating claims that were or could have been raised in a prior action that was resolved on its merits. See, e.g., Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). Res judicata is an affirmative defense, but it may be raised in a motion to dismiss under Fed. R. Civ. P. 12(b)(6) where the defense raises no disputed issues of fact. Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984); see also Clow v. Bank of Am., NA, 2012 WL 3637782, at *2 (D. Or. 2012) (“The defense of res judicata may be raised by a Rule 12(b)(6) motion when all relevant facts are shown by the court’s records, of which the court may take notice (citing Day v. Moscow, 955 F.2d 807, 811 (2nd Cir. 1992)). ii. Failure to State a Claim. In order to state a claim for relief, a pleading must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, a pleading must “contain sufficient factual matter, accepted Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 3 of 15 Page 4 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)). To state a plausible claim that survives a motion to dismiss, a complaint must “plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. Nor are “naked assertions” devoid of “further factual enhancement” sufficient. Id. Under the pleading standards expressed in Twombly and Iqbal, “[d]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. C. Background Mr. Blocker filed an action in this Court on October 17, 2014, styled Blocker v. Universal Music Publishing Group, Case No. 3:14-cv-01650-SB (“Blocker I”). See Blocker I, Dkt. No. 2 (Complaint) (Garfield Decl., Exh. B).1 Mr. Blocker also filed a motion to proceed in forma pauperis. Id., Dkt. No. 1 (Application for Leave to Proceed IFP) (Garfield Decl., Exh. A). In his first action, Mr. Blocker described the basis of jurisdiction as “Interlectual [sic] property and business fraud on Nestcoast LLC and Nestcoast Entertainment,” and further stated, “Universal Music Group frauded [sic] Tyrone Blocker out of his business under Nestcoast LLC and Nestcoast Entertainment and its interlectual [sic] copy and patent rights.” See Blocker I, Dkt. No. 2, p. 3 (Complaint) (Garfield Decl., Exh. B). Mr. Blocker then filed an Amended Complaint 1 The Blocker I materials cited in this Motion all appear in this Court’s own records. File-stamped copies of these materials are attached for the Court’s convenience to the concurrently-submitted Declaration of Garrett S. Garfield. Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 4 of 15 Page 5 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 in Blocker I on October 21, 2014, again making a similar claim that the defendant “fraudulently used [his] business and sold [his] intellectual property.” Id., Dkt. No. 3, p. 3 (Amended Complaint) (Garfield Decl., Exh. C). He followed up with a Second Amended Complaint on December 10, 2014, again making assertions that the defendant had improperly used Nestcoast LLC and Nestcoast Entertainment intellectual property. Id., Dkt. No. 7, pp. 1-2 (Second Amended Complaint) (Garfield Decl., Exh. D). Mr. Blocker’s first three complaints were dismissed by the Blocker I court pursuant to its authority to screen the pleadings of plaintiffs proceeding in forma pauperis under 28 U.S.C. § 1915(e)(2)(B).2 See Blocker I, Dkt. No. 8 (Order Dismissing Amended Complaint) (Garfield Decl., Exh. E); id., Dkt. No. 20 (Order Dismissing Second Amended Complaint) (Garfield Decl., Exh. F). Mr. Blocker then filed a Third Amended Complaint on April 27, 2015. Id., Dkt. No. 28 (Third Amended Complaint) (Garfield Decl., Exh. G). In his Third Amended Complaint, Mr. Blocker added additional defendants, naming Universal Music Publishing Group, Bandmine Inc., Snocap Inc., and eBay Inc. Id. He continued to assert claims that these defendants had violated intellectual property rights belonging to Mr. Blocker or to Nestcoast Entertainment. Id. at pp. 3-4. Finally, Mr. Blocker filed a Fourth Amended Complaint on August 20, 2015, again naming the same four defendants-including eBay-and again asserting putative violations of his intellectual property rights. See id., Dkt. No. 51, pp. 2-3 (Fourth Amended Complaint) (Garfield Decl., Exh. H) 2 This provision requires district courts to dismiss an in forma pauperis complaint if the court determines that the action: (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. See also Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (concluding that screening under 28 U.S.C. § 1915(e)(2)(B) applies to non-prisoners). Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 5 of 15 Page 6 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 (“Defendants . . . took or carried away plaintiffs [sic] accounts and interlectual [sic] property” . . . “Plaintiff did not discover that Defendants were illegally using Nestcoast Entertainments [sic] label, music, videos, accounts, and ideals until plaintiff found those accounts on google and eBay” . . . “Defendants hid the fact that they were making financial gain through the use of plaintiffs [sic] intellectual property”). eBay moved to dismiss Mr. Blocker’s Fourth Amended Complaint on September 8, 2015, for failure to state a claim. See Blocker I, Dkt. No. 60 (eBay’s Motion to Dismiss) (Garfield Decl., Exh. I). On December 15, 2015, Judge Beckerman issued her Findings and Recommendation that eBay’s motion to dismiss should be granted. Id., Dkt. No. 76 (Findings and Recommendation) (Garfield Decl., Exh. J). On January 6, 2016, Judge Simon adopted Judge Beckerman’s Findings and Recommendation and dismissed the action, with prejudice, against all defendants. Id., Dkt. No. 79 (Order) (Garfield Decl., Exh. K). Judge Simon further found “that any appeal of [his] Order would not be taken in good faith and that Mr. Blocker’s in forma pauperis status should be revoked”. Id. Judgment dismissing Blocker I with prejudice was entered on January 6, 2016. Id., Dkt. No. 80 (Judgment) (Garfield Decl., Exh. L). C. Argument on Motion to Dismiss Based on Res Judicata This action against eBay is barred by the doctrine of res judicata. The Supreme Court has summarized the doctrine as follows: “A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). Res judicata is “central to the purpose for which civil courts have been established, the conclusive resolution of disputes within Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 6 of 15 Page 7 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 their jurisdiction.” In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). Res judicata has three elements-it precludes a second action when “the earlier suit . . . (1) involved the same ‘claim’ or cause of action as the later suit, (2) reached a final judgment on the merits, and (3) involved identical parties or privies.” Mpoyo v. Litton Electro-Optical Systems, 430 F.3d 985, 987 (9th Cir. 2005). Each element is met here. i. Blocker I and the current suit involve the same cause of action. This action and Blocker I involve the same claim or cause of action, because Mr. Blocker raised the same issue and grounds for recovery that he attempts to assert here. Mr. Blocker’s various pleadings in Blocker I were not models of clarity, but they consistently asserted violations of Mr. Blocker’s intellectual property rights relating to Nestcoast Entertainment. See pp. 3-4, supra. Now, in his current action, Mr. Blocker again alleges that the defendants3 are improperly using his intellectual property, namely his “Nestcoast Ent trademark and copyrighted materials.” See Complaint, p. 6. The Ninth Circuit has “long recognized the flexibility inherent in the res judicata determination with respect to identity of claims.” United States v. Liquidators of European Federal Credit Bank, 630 F.3d 1139, 1150 (9th Cir. 2011). To determine whether successive actions in fact involve the same claim, the Ninth Circuit considers various factors: “(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second 3 The “Statement of Claim” section of Mr. Blocker’s complaint appears to be directed only against defendant Bandmine.com. See Complaint, pp. 5-6. He nonetheless states in the “Relief” section that he is suing eBay for a total of $45,000,000. See id., p. 7 Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 7 of 15 Page 8 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.” Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992). The fourth factor-“same transactional nucleus of facts”-is considered the most important. Constantini v. Trans World Airlines, 681 F.2d 1199, 1202 (9th Cir. 1982). Mr. Blocker’s claims in this action arise from the same transactional nucleus of facts as his claims in Blocker I-i.e., the factual assertion that eBay and others improperly used or violated his intellectual property rights relating to Nestcoast Entertainment. This alone is sufficient to support a determination that two ostensibly separate claims are, in fact, the same claim. See Mpoyo, 430 F.3d at 988 (“The [common nucleus of operative fact] criterion controls and assures the two suits involve the same claim or cause of action”); see also Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1081 (9th Cir. 2003) (relying solely on the transactional nucleus of fact factor to find that claims were identical); Liquidators, 630 F.3d at 1151 (noting that the transactional nucleus of fact factor “is the most important,” and further noting that “in most res judicata cases, the inquiry about the ‘same transaction nucleus of facts’ is the same inquiry as whether the claim could have been brought in the previous action.”) (emphasis original). Although Mr. Blocker uses different language to describe his claim, the essential factual allegation that eBay somehow interfered with his intellectual property relating to Nestcoast Entertainment is the same, and demonstrates an identity of claims between this action and Blocker I. Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 8 of 15 Page 9 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 The remaining factors for determining identity of claims also show that Mr. Blocker’s current action is based on the same putative cause of action as was Blocker I. The rights and interests established by the Court’s Judgment dismissing Blocker I with prejudice would be impaired by reopening the same matter in a separate action. Both Blocker I and this case involve allegations of infringement of the same right-Mr. Blocker’s putative intellectual property rights relating to Nestcoast Entertainment. And while Blocker I was dismissed for failure to state a claim, because the underlying allegations are identical the two actions would necessarily involve the same evidence. Finally, even if this current action were construed as asserting some new basis for relief that Mr. Blocker did not put forward in Blocker I, res judicata bars “any claims that were raised or could have been raised” in a prior action. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (emphasis added) (quoting W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)); see also Constantini, 681 F.2d at 1201 (res judicata applies to “all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties . . . on the same cause of action.”); Tahoe-Sierra, 322 F.3d at 1078 (“res judicata bars relitigation of all grounds of recovery that were asserted, or could have been asserted in a previous action”). Mr. Blocker either raised or at the very least could have raised in the five separate pleadings he filed in Blocker I the same grounds for relief-including any allegations of trademark or copyright infringement-that he now attempts to put forward.4 But under the doctrine 4 Indeed, Judge Beckerman specifically found that Mr. Blocker’s claim in Blocker I fell within the subject matter of the Copyright Act. See Blocker I, Dkt. No. 76, p. 8 (Findings and Recommendation) (Garfield Decl., Exh. J). Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 9 of 15 Page 10 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 of res judicata, Mr. Blocker may not now relitigate any such matters in a new action on the same cause of action. ii. Blocker I reached a judgment on the merits. A dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6) is a final judgment on the merits for purposes of res judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002) (citing Moitie, 452 U.S. at 399 n. 3); see also FRCP 41(b) (involuntary dismissal generally operates as an adjudication on the merits). Blocker I was dismissed with prejudice on the defendants’ motions to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. See Blocker I, Dkt. No. 76 (Findings and Recommendation) (Garfield Decl., Exh. J) (recommending that eBay’s and Universal Music Publishing Group’s Fed. R. Civ. P. 12(b)(6) motions be granted); id., Dkt. No. 79 (Order) (Garfield Decl., Exh. K) (adopting Findings and Recommendation and granting motions).5 Blocker I was accordingly resolved by a judgment on the merits for purposes of res judicata. iii. This Court’s records show that this action is barred by res judicata. Courts may appropriately take judicial notice of the records of a prior action. See Fed. R. Evid. 201(b)(2); see also Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1054-55 (9th Cir. 2005) (noting that court may dismiss a case on preclusion grounds “where the records of that court show that a previous action covering the same subject matter and parties had been dismissed.” (quoting Evarts v. W. Metal Finishing Co., 253 F.2d 637, 639 n. 1 (9th Cir. 1958))). eBay 5 The Blocker I court further found that Mr. Blocker’s pleadings failed to state a claim against non-moving defendants Bandmine, Inc. and SnoCap, Inc., and dismissed the entire action with prejudice. See Blocker I, Dkt. No. 79, p. 2 (Order) (Garfield Decl., Exh. K). Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 10 of 15 Page 11 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 accordingly requests under Fed. R. Evid. 201 that the Court take judicial notice of its own files and records in Blocker I, the relevant portions of which are attached to the concurrently-submitted Declaration of Garrett S. Garfield. That record establishes without any factual dispute that this action is barred by the doctrine of res judicata, providing a sufficient and appropriate basis to dismiss this action as against eBay. See Kuhlmann, 746 F.2d at 1378. iv. Mr. Blocker has unreasonably and vexatiously multiplied the proceedings. Under 28 U.S.C. § 1927, “[a]ny attorney or other person admitted to conduct cases in any court of the United States . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Sanctions may be imposed upon a pro se plaintiff under this statute. Wages v. I.R.S., 915 F.2d 1230, 1235-36 (9th Cir. 1990). Mr. Blocker has inappropriately attempted here to assert for a second time a cause of action that was already dismissed with prejudice in Blocker I.6 Moreover, Mr. Blocker was on notice that further attempts to prosecute this putative cause of action were inappropriate. Judge Simon specifically found that any appeal from the Order dismissing Blocker I with prejudice would not be taken in good faith, and that Mr. Blocker’s in forma pauperis status should be revoked. See Blocker I, Dkt. No. 79 (Order) (Garfield Decl., Exh. K). For Mr. Blocker to attempt an end run around Judge Simon’s ruling by simply filing a duplicative action against eBay (and a second 6 Plaintiff appears to be an intractable serial litigant. A PACER search reveals that “Tyrone Blocker” has been the plaintiff in 31 lawsuits in the District of Oregon alone. It does not appear that he has ever been granted relief in any of these actions. Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 11 of 15 Page 12 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 application to proceed in forma pauperis on the same claim) evinces bad faith, is the definition of an unreasonable multiplication of the proceedings, and serves no purpose other than to squander the Court’s and the defendants’ time and resources. eBay accordingly requests that the Court impose sanctions against Mr. Blocker under 28 U.S.C. § 1927, in the amount of eBay’s reasonable costs, expenses, and attorney fees incurred in responding to Mr. Blocker’s Complaint in this matter. D. Argument on Alternative Motion to Dismiss for Failure to State a Claim If the Court does not see fit to grant eBay’s motion to dismiss on res judicata grounds, the Complaint in this action should nonetheless be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Mr. Blocker’s current allegations consist of the conclusory statements that the defendant Bandmine.com “violated his exclusive rights attached to his trademark and copyrighted materials,” and that “the defendant is using the plaintiffs [sic] NESTCOAST ENT trademark and copyrighted materials and is in violation of the ACTA trade agreement.” Complaint, pp. 5-6. While Mr. Blocker thus does appear to complain that his intellectual property relating to Nestcoast has been violated in some way, these allegations do not rise above the type of “naked assertions” that are insufficient to state a claim without “further factual enhancement.” Iqbal, 556 U.S. at 678. Mr. Blocker’s allegations do not state any facts to show the nature or scope of the intellectual property at issue, when or how it was allegedly infringed, or any resulting damages. This is particularly true with respect to eBay, which is not even mentioned in the “Statement of Claim” section of Mr. Blocker’s Complaint. See Complaint, pp. 5-6. Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 12 of 15 Page 13 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 Nor does the Complaint state any authority or legal theory that would authorize relief. Instead, it refers to the “ACTA trade agreement,” but offers no facts to show how this multilateral international treaty would apply, nor to show any violation of corresponding domestic legislation. As it stands, Mr. Blocker’s Complaint fails to plausibly suggest an entitlement to relief and does not provide fair notice to the defendants to enable them to defend themselves effectively against the allegations. See Starr v. Baca, 625 F.3d 1202, 1216 (9th Cir. 2011). The Complaint fails to state a claim and should be dismissed. E. Conclusion Mr. Blocker should not be allowed to repeatedly litigate matters that have already been decided. The claims he now attempts to assert against eBay were resolved, or could have been resolved, by final judgment in his prior action. This current action is barred by the doctrine of res judicata as against eBay, and should be dismissed with prejudice as against eBay. Because Mr. Blocker has unreasonably and vexatiously multiplied the proceedings by bringing the same action twice, eBay should be awarded its reasonable costs, expenses, and attorney fees. In the alternative, even if the Court were to consider the allegations of the Complaint /// /// /// /// /// /// Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 13 of 15 Page 14 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 without respect to Mr. Blocker’s prior action, the Complaint fails to sufficiently state a claim and should be dismissed. Dated: October 19, 2016. HOLLAND & KNIGHT LLP By: s/ Garrett S. Garfield Garrett S. Garfield, OSB No. 093634 E-mail: garrett.garfield@hklaw.com 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 Fax: 503.241.8014 Attorneys for Defendant eBay Inc. Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 14 of 15 Page 15 - DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, OR 97204 Telephone: 503.243.2300 CERTIFICATE OF SERVICE I hereby certify that I caused the foregoing DEFENDANT EBAY INC.’S MOTION TO DISMISS ON RES JUDICATA GROUNDS AND FOR IMPOSITION OF SANCTIONS UNDER 28 U.S.C. § 1927; REQUEST FOR JUDICIAL NOTICE; ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM to be served on the following person: Tyrone Blocker P.O. Box 9134 Portland, OR 97207 by the following indicated method or methods:  by CM/ECF electronically mailed notice from the Court on the date set forth below.  by mailing full, true and correct copies thereof in sealed, first class postage prepaid envelopes, addressed to the parties and/or their attorneys as shown above, to the last- known office addresses of the parties and/or attorneys, and deposited with the United States Postal Service at Portland, Oregon, on the date set forth below.  by causing full, true, and correct copies thereof to be hand-delivered to the parties and/or their attorneys at their last-known office addresses listed above on the date set forth below.  by sending full, true, and correct copies thereof, via overnight courier in sealed, prepaid envelopes, addressed to the parties and/or their attorneys as shown above, to the last- known office addresses of the parties and/or their attorneys, on the date set forth below.  by faxing full, true, and correct copies thereof to the fax machines which are the last- known fax numbers for the parties’ and/or attorneys’ offices, on the date set forth below. DATED October 19, 2016. s/ Garrett S. Garfield Garrett S. Garfield #37141147_v1 Case 3:16-cv-01709-AC Document 8 Filed 10/19/16 Page 15 of 15