Allen v. Thomas

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

KENT ALLEN,

Plaintiff,

-against- 1:21-CV-3841 (LTS)

STAYVE THOMAS (EBRE RECORDING

ORDER OF DISMISSAL

ARTIST); GEORGE SHERMAN (CEO OF

GAMESTOP),

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is appearing pro se, asserts claims for the appropriation of his alleged idea

for the name “GameStop,” and seeks compensation for having that idea. Plaintiff sues:

(1) Stayve Thomas, a recording artist who is also known as “Slim Thug”; and (2) George

Sherman, the former Chief Executive Officer of GameStop Corporation. He invokes the diversity

of citizenship statute, 28 U.S.C. § 1332, as the basis for this Court’s jurisdiction. By order dated

August 18, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees,

that is, in forma pauperis (“IFP”). For the reasons set forth below, the Court dismisses this

action.

BACKGROUND

Plaintiff alleges the following: When Plaintiff was 8 years old and living in Georgia, he

“was . . . developing artists.” (ECF 2, at 6.) Plaintiff did not have an opportunity to develop

Defendant Stayve Thomas, a recording artist who is also known as “Slim Thug,” but regarded

him as a “father figure.” (Id.) On one day when Plaintiff was 8 years old and playing video

games on a handheld device at a gas station in Forest Park, Georgia, Thomas telephoned him and

asked Plaintiff to give him a stage name. Plaintiff had the idea of giving Thomas the stage name

“GameStop.” When he told Thomas, Thomas “got ecstatic and started to cheer[].” (Id.) Thomas

told Plaintiff “‘that’s a good name.’” (Id.) Plaintiff stayed in contact with Thomas until Plaintiff

became 13 years old. Since then, Plaintiff has been unable to get in contact with Thomas.

“Today, GameStop is worth billions of dollars in monetary value.” (Id. at 7.)

Plaintiff “look[s] to be compensated and also [to be] given credit for [his] ideas.” (Id. at

8.) In addition, he is “looking to have [his] personal life back . . . “ (Id.) “Due to [Plaintiff’s]

personal relationship” with Thomas, and in “consideration of GameStop employees[,] the relief”

he seeks, which includes $55 million, “is fair.” (Id. at 9.)

DISCUSSION

The Court must dismiss an IFP complaint, or any portion of the complaint, that is

frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). A claim is “frivolous

when either: (1) the factual contentions are clearly baseless, such as when allegations are the

product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal

theory.” Id. (internal quotation marks and citation omitted). Moreover, a court has “no obligation

to entertain pure speculation and conjecture.” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir.

2011) (finding as frivolous and baseless allegations that set forth a fantastical alternative history

of the September 11, 2001 terrorist attacks).

Plaintiff should be familiar with these standards, which the Court has applied in

dismissing multiple other actions that he has filed. Based on Plaintiff’s history of filing vexatious

litigation, by order dated June 28, 2021, the Court barred Plaintiff from filing future civil actions

in this court IFP without first obtaining leave to file. Allen v. Almanzar, ECF 1:21-CV-3838, 5

(S.D.N.Y. June 28, 2021).

Because Plaintiff filed this action before the Court issued the filing restriction, this action

is not subject to it. But this action is not a departure from Plaintiff’s pattern of vexatious

litigation.

The Court finds that Plaintiff’s factual allegations – that as an 8 year-old child, he thought

of the stage name “GameStop” for Defendant Stayve Thomas and told Thomas about it (Plaintiff

does not allege how his idea was transmitted from Thomas to anyone having any connection

with GameStop Corporation) – present no basis for a legally viable claim and are factually

baseless.1

As the Supreme Court of the United States has held, where, as here, “the facts alleged are

‘clearly baseless,’ a category encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and

‘delusional,’” a court may dismiss a claim as “factually frivolous.” Denton v Hernandez, 504

U.S. 25, 32-33 (1992) (internal citations omitted). “As those words suggest, a finding of factual

frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly

incredible. . . .” Id. at 33. Even if Plaintiff’s assertions could be construed as a claim for

trademark infringement, Plaintiff clearly does not have any protectible trademark.2 See Neitzke v.

1 In other actions Plaintiff filed in this court, Plaintiff alleged that he also developed the

brand names “Aquafina” and “Dasani.” Allen v. Finley, ECF 1:21-CV-3840, 2; Allen v. Payton,

ECF 1:21-CV-4698, 2.

2 A trademark:

is a very unique type of property. There is no such thing as property in a trade-

mark except as a right appurtenant to an established business or trade in

connection with which the mark is employed. Therefore, a trademark is not

property in the ordinary sense, but only a word or symbol indicating the origin or

source of a product. The owner of the mark acquires the right to prevent his goods

from being confused with those of others and to prevent his own trade from being

diverted to competitors through their use of misleading marks. There are no rights

in a trade-mark beyond these.

Pirone v. MacMillan, Inc., 894 F.2d 579, 581 (2d Cir. 1990) (internal quotation marks and

citation omitted).

Williams, 490 U.S. 319, 327-28 (1989) (“Examples of [claims based on an indisputably meritless

legal theory include] . . . claims of infringement of a legal interest which clearly does not

exist. . . . Examples of [claims whose factual contentions are clearly baseless] are claims

describing fantastic or delusional scenarios, claims with which federal district judges are all too

familiar.”). For these reasons, the Court dismisses this action as frivolous. See 28 U.S.C.

§ 1915(e)(2)(B)(i).

In deference to Plaintiff’s pro se status, the Court would normally permit Plaintiff to

amend his complaint. But the Court finds that the complaint cannot be cured with an amendment.

Where an amendment would be futile, leave to amend is not required. Hill v. Curcione, 657 F.3d

116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (court may

dismiss a complaint sua sponte and without providing leave to amend “where the substance of

the claim pleaded is frivolous on its face”). The Court therefore declines to grant Plaintiff leave

to amend.

The Court reminds Plaintiff that the filing restriction remains in effect with respect any

future civil actions he files in this court IFP.

CONCLUSION

The Court dismisses this action as frivolous. 28 U.S.C. § 1915(e)(B)(i).

Plaintiff has consented to receive electronic service of notices and documents in this

action. (ECF 3.)

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: August 26, 2021

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge