# Allen v. Thomas

> District Court, S.D. New York · August 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10334587

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10334587

## How later opinions describe it (automated extraction)

- finding as frivolous and baseless allegations that set forth a fantastical alternative history of the September 11, 2001 terrorist attacks

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10334587. Public record. Not legal advice.