MEMORANDUM AND ORDER granting [2] Motion for Leave to Proceed in forma pauperis; For the foregoing reasons, Eng has failed to state claims upon which relief may be granted, and his factual allegations make clear that, even if amended, his pleadings could not possibly state any valid cause of action. Pursuant to 28 U.S.C. § 1915(e)(2)(B), therefore, Eng's complaints are dismissed in their entirety with prejudice; The Clerk of Court is directed to enter judgment in both cases and to close them for administrative purposes. Ordered by Judge Eric N. Vitaliano on 7/1/2014. (fwd for judgment) c/m to pro se pltf (Fernandez, Erica)
Page 1 PageID #:
FILED
IN OLl!fllfll Ol'FIC:E
U.S. DISTRICT COURT E.D.N.Y.
*
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
JUL 1 1
*
BROOKLYN OFFICE
KENNETH ENG,
Plaintiff,
MEMORANDUM & ORDER
-against14-cv-3905 (ENV)
TIM CUSHING and TECHDIRT,
Defendants.
--------------------------------------------------------------x
--------------------------------------------------------------x
KENNETH ENG,
Plaintiff,
MEMORANDUM & ORDER
-against14-cv-3912 (ENV)
JOE ROSEN, PACERMONITOR.COM, and
HARROS, LLC,
Defendants.
--------------------------------------------------------------x
VIT ALIANO, D.J.,
On June 17, 2014, plaintiff Kenneth Eng, who is self-represented, initiated a
lawsuit against defendants Tim Cushing, an author of online content, and TechDirt,
an online source of technology-related news (the "Cushing defendants"). Eng alleges
that Cushing and TechDirt illegally published his address and "other private
information" about him. To his complaint, Eng attaches a copy of one of Cushing's
IPage 2 PageID #:
posts, which summarizes one of this Court's recent decisions, as well as copies of
civil legal complaints, filed by Eng in this Court and in the Southern District of New
York, which were reproduced online by Cushing and/or TechDirt. On June 19,
2014, Eng opened a similar case against PacerMonitor.com ("PacerMonitor"), a
website which aggregates federal court filings, Joe Rosen, PacerMonitor's founder,
and Harros, LLC, a company owned by Rosen (the "Rosen defendants"). Plaintiff
attached no exhibits to this complaint against the Rosen defendants, but included a
link to a PacerMonitor page, which presents a link to yet another of Eng's various
civil complaints. Eng's collateral applications to proceed in forma pauperis are granted, but,
for the reasons that follow, both complaints are dismissed with prejudice.
Standard of Review
A civil action complaint must provide "a short and plain statement of the
claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This rule
does not require a plaintiff to provide "detailed factual allegations" in support of his
or her claims in order to survive a motion to dismiss, Bell At/. Corp. v. Twombly, U.S. 544, 555 (2007), but it does demand "more than an unadorned, the-defendantunlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009).
Eng avers in both cases that the Court has jurisdiction over his claims pursuant to
the Securing the Protection of our Enduring and Established Constitutional
Heritage Act ("SPEECH Act"), 28 U.S.C. § 4101 et seq. The SPEECH Act governs
the interplay of foreign defamation judgments and the freedom of constitutionally
protected speech in this country. By its terms, the SPEECH Act is utterly
inapplicable to Eng's putative lawsuits, and he therefore fails to state a claim under
it. Page 3 PageID #:
Indeed, mere conclusory allegations or "naked assertions" will not survive a motion
to dismiss without at least some "further factual enhancement" providing substance
to the claims alleged. Twombly, 550 U.S. at 557.
When a plaintiff proceeds without legal representation, a court must regard
that plaintiff's complaint in a more liberal light, affording the pleadings of a prose
litigant the strongest interpretation possible. See Erickson v. Pardus, 551 U.S. 89, (2007); Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (per
curiam). Even so, a court must dismiss an in forma pauperis complaint if 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."
U.S.C. § 1915(e)(2)(B).
Discussion
Eng's solitary gripe in these cases is that defendants have publicly
reproduced copies of some of the many frivolous civil action complaints filed by him
in recent months. These complaints and accompanying cover sheets are, of course,
official court documents, and matters of public record. As is expected in a court
filing, Eng's address-as well as the mailing addresses of those he has attempted to
sue-appears on the face of these court documents. That defendants have
distributed copies of these documents in the media is a practice that is by no means
unusual or a violation of Eng's right to privacy. Put simply, he has no privacy
interest in such publicly-accessible records. Cox Broad. Corp. v. Cohn, 420 U.S. 469,
493-96 (1975) (newspaper not liable for publishing public information found in
official court records); Doe v. City of New York, 15 F.3d 264, 268 (2d Cir. 1994) Page 4 PageID #:
("Certainly, there is no question that an individual cannot expect to have a
constitutionally protected privacy interest in matters of public record."); see also
Application ofNat'/ Broad. Co., Inc., 635 F.2d 945, 950 (2d Cir. 1980) ("common law
right to inspect and copy public records originally permitted copying the content of
written documents" in court proceedings). In short, it was not defendants that
thrust Eng's home address into the public record: it was Eng, himself, and he has
done so repeatedly. Defendants, by merely reproducing Eng's court filings and
reporting on his legal antics, have committed no impropriety, and plaintiff can state
no claim against them on those grounds.
Conclusion
For the foregoing reasons, Eng has failed to state claims upon which relief
may be granted, and his factual allegations make clear that, even if amended, his
pleadings could not possibly state any valid cause of action. Pursuant to 28 U.S.C. §
1915(e)(2)(B), therefore, Eng's complaints are dismissed in their entirety with
prejudice.
Eng has, the Court's records reflect, filed a spate of these meaningless
lawsuits in recent weeks. In light of his ongoing practice of filing lawsuits of this
frivolous nature, the Court again reiterates its warning that, should he continue to
file such lawsuits, he will face a filing injunction and/or monetary sanctions, upon
notice and opportunity to be heard. See Lau v. Meddaugh, 229 F.3d 121, 123 (2d
Cir. 2000); see also Eng v. Captain Blue Hen Comics, et aL, Nos. 14-cv-3631, 14-cv3632, 14-cv-3810 (E.D.N.Y. June 30, 2014).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would Page 5 PageID #:
not be taken in good faith and, therefore, in forma pauperis status is denied for the
purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment in both cases and to close
them for administrative purposes.
SO ORDERED.
Dated:
/
Brooklyn, New York
July 1,
s/Eric N. Vitaliano
Elffi'!'N. VITALIANO
United States District Judge
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:14-cv-03912-ENV-LB Document 5 Filed 07/11/14 Page 1 of 5 PageID #: 11
FILED
IN OLl!fllfll Ol'FIC:E
U.S. DISTRICT COURT E.D.N.Y.
*
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
JUL 1 1 2014
*
BROOKLYN OFFICE
KENNETH ENG,
Plaintiff,
MEMORANDUM & ORDER
-against14-cv-3905 (ENV)
TIM CUSHING and TECHDIRT,
Defendants.
--------------------------------------------------------------x
--------------------------------------------------------------x
KENNETH ENG,
Plaintiff,
MEMORANDUM & ORDER
-against14-cv-3912 (ENV)
JOE ROSEN, PACERMONITOR.COM, and
HARROS, LLC,
Defendants.
--------------------------------------------------------------x
VIT ALIANO, D.J.,
On June 17, 2014, plaintiff Kenneth Eng, who is self-represented, initiated a
lawsuit against defendants Tim Cushing, an author of online content, and TechDirt,
an online source of technology-related news (the "Cushing defendants"). Eng alleges
that Cushing and TechDirt illegally published his address and "other private
information" about him. To his complaint, Eng attaches a copy of one of Cushing's
I
PDF Page 3
Case 1:14-cv-03912-ENV-LB Document 5 Filed 07/11/14 Page 2 of 5 PageID #: 12
posts, which summarizes one of this Court's recent decisions, as well as copies of
civil legal complaints, filed by Eng in this Court and in the Southern District of New
York, which were reproduced online by Cushing and/or TechDirt. On June 19,
2014, Eng opened a similar case against PacerMonitor.com ("PacerMonitor"), a
website which aggregates federal court filings, Joe Rosen, PacerMonitor's founder,
and Harros, LLC, a company owned by Rosen (the "Rosen defendants"). Plaintiff
attached no exhibits to this complaint against the Rosen defendants, but included a
link to a PacerMonitor page, which presents a link to yet another of Eng's various
civil complaints. 1
Eng's collateral applications to proceed in forma pauperis are granted, but,
for the reasons that follow, both complaints are dismissed with prejudice.
Standard of Review
A civil action complaint must provide "a short and plain statement of the
claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This rule
does not require a plaintiff to provide "detailed factual allegations" in support of his
or her claims in order to survive a motion to dismiss, Bell At/. Corp. v. Twombly, 550
U.S. 544, 555 (2007), but it does demand "more than an unadorned, the-defendantunlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009).
1
Eng avers in both cases that the Court has jurisdiction over his claims pursuant to
the Securing the Protection of our Enduring and Established Constitutional
Heritage Act ("SPEECH Act"), 28 U.S.C. § 4101 et seq. The SPEECH Act governs
the interplay of foreign defamation judgments and the freedom of constitutionally
protected speech in this country. By its terms, the SPEECH Act is utterly
inapplicable to Eng's putative lawsuits, and he therefore fails to state a claim under
it.
2
PDF Page 4
Case 1:14-cv-03912-ENV-LB Document 5 Filed 07/11/14 Page 3 of 5 PageID #: 13
Indeed, mere conclusory allegations or "naked assertions" will not survive a motion
to dismiss without at least some "further factual enhancement" providing substance
to the claims alleged. Twombly, 550 U.S. at 557.
When a plaintiff proceeds without legal representation, a court must regard
that plaintiff's complaint in a more liberal light, affording the pleadings of a prose
litigant the strongest interpretation possible. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (per
curiam). Even so, a court must dismiss an in forma pauperis complaint if 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).
Discussion
Eng's solitary gripe in these cases is that defendants have publicly
reproduced copies of some of the many frivolous civil action complaints filed by him
in recent months. These complaints and accompanying cover sheets are, of course,
official court documents, and matters of public record. As is expected in a court
filing, Eng's address-as well as the mailing addresses of those he has attempted to
sue-appears on the face of these court documents. That defendants have
distributed copies of these documents in the media is a practice that is by no means
unusual or a violation of Eng's right to privacy. Put simply, he has no privacy
interest in such publicly-accessible records. Cox Broad. Corp. v. Cohn, 420 U.S. 469,
493-96 (1975) (newspaper not liable for publishing public information found in
official court records); Doe v. City of New York, 15 F.3d 264, 268 (2d Cir. 1994)
3
PDF Page 5
Case 1:14-cv-03912-ENV-LB Document 5 Filed 07/11/14 Page 4 of 5 PageID #: 14
("Certainly, there is no question that an individual cannot expect to have a
constitutionally protected privacy interest in matters of public record."); see also
Application ofNat'/ Broad. Co., Inc., 635 F.2d 945, 950 (2d Cir. 1980) ("common law
right to inspect and copy public records originally permitted copying the content of
written documents" in court proceedings). In short, it was not defendants that
thrust Eng's home address into the public record: it was Eng, himself, and he has
done so repeatedly. Defendants, by merely reproducing Eng's court filings and
reporting on his legal antics, have committed no impropriety, and plaintiff can state
no claim against them on those grounds.
Conclusion
For the foregoing reasons, Eng has failed to state claims upon which relief
may be granted, and his factual allegations make clear that, even if amended, his
pleadings could not possibly state any valid cause of action. Pursuant to 28 U.S.C. §
1915(e)(2)(B), therefore, Eng's complaints are dismissed in their entirety with
prejudice.
Eng has, the Court's records reflect, filed a spate of these meaningless
lawsuits in recent weeks. In light of his ongoing practice of filing lawsuits of this
frivolous nature, the Court again reiterates its warning that, should he continue to
file such lawsuits, he will face a filing injunction and/or monetary sanctions, upon
notice and opportunity to be heard. See Lau v. Meddaugh, 229 F.3d 121, 123 (2d
Cir. 2000); see also Eng v. Captain Blue Hen Comics, et aL, Nos. 14-cv-3631, 14-cv3632, 14-cv-3810 (E.D.N.Y. June 30, 2014).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would
4
PDF Page 6
Case 1:14-cv-03912-ENV-LB Document 5 Filed 07/11/14 Page 5 of 5 PageID #: 15
not be taken in good faith and, therefore, in forma pauperis status is denied for the
purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment in both cases and to close
them for administrative purposes.
SO ORDERED.
Dated:
/
Brooklyn, New York
July 1, 2014
s/Eric N. Vitaliano
Elffi'!'N. VITALIANO
United States District Judge
5