Freeman v. Bird Rides, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KIMBERLY FREEMAN,

Plaintiff,

v. Case No. 2:19-cv-5636

Judge George C. Smith

Magistrate Judge Chelsey M. Vascura

BIRD RIDES, INC.,

Defendant.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Kimberly Freeman, an Ohio resident proceeding without the assistance of

counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 2.) The Court

GRANTS Plaintiff’s request to proceed in forma pauperis. All judicial officers who render

services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a).

This matter is also before the Court for the initial screen of Plaintiff’s Complaint under

28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s

Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon 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). Having performed the initial screen, for the reasons that follow,

it is RECOMMENDED that the Court DISMISS this action for failure to state a claim upon

which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) WITHOUT

PREJUDICE to filing the state-law claims in state court. Plaintiff’s Motion to Stay (ECF No.

1) is DENIED AS MOOT.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e), which

provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

Further, to properly state a claim upon which relief may be granted, a plaintiff must

satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a).

See also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil

Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under

Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank , 727 F.3d at 504 (citations omitted). Further, the

Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by

lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 2010)

(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has

limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen.

Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594

(6th Cir. 1989)).

II.

Plaintiff’s Complaint lacks clarity. As best as the Court can discern, Plaintiff entered into

a contract with Defendant, Bird Rides, Inc., whereby she agreed to collect, charge, and release

their electric scooters. She alleges that she asked Defendant that she be released from her “task

list” between December 17, 2019, through December 21, 2019. (Pl.’s Compl. 2, ECF No. 2-2 at

PAGEID # 12.) Apparently, Defendant did not release her of her obligations, which upset her

son because “[h]e wanted to Uber,” and left Plaintiff completing the task herself. (Id.)

Plaintiff also references a December 10, 2019 demand letter, which she attaches to her

Complaint, in which she writes Defendant to inform it that she was unable to find a release site

and that as a consequence, she had stored thirty-one scooters in her garage for 14 days without

compensation. Plaintiff also expresses in that letter her belief that her storage of the scooters

transformed her into an employee such that she is also owed lost wages, all of which causes her

emotional distress. Finally, she demands that Defendant pay her $75,000 or be subject to

litigation.

Plaintiff also attaches what appear to be screen shots of text messages between herself

and a representative with Defendant. That representative asks Plaintiff to take the bikes to a

“nest” and text a picture showing she has done so. (ECF No. 2-3 at PAGEID # 25.) Plaintiff

responds that her son wants to Uber and informs the representative that he or she is “asking [her]

to turn . . . around [and] break my son’s heart again.” (Id. at PAGEID # 26.) The representative

responds, “[n]o problem,” and asks Plaintiff to let her know when she drops them off. (Id. at

PAGEID # 27.) Plaintiff then responds with several pages of texts discussing how upset she is

about having to work around Christmas and how she will have to fight to get paid for storing

Defendant’s scooters.

Under a section entitled “Relief summary” in her Complaint, Plaintiff requests that she be

paid $3000 for storing the scooters in her garage and apparently under her theory that keeping

the scooters stored in her garage transforms her into an employee, seeks hourly and overtime

wage for every single hour the bikes spent in her garage, which she calculates to be $14,420.

She also seeks the $700 she paid to LetterDash for the demand letter, $93 for “amount owed,”

liquidated damages in the amount of $180, and punitive damages and “malicious intent”

damages in the amount of $110,000.

III.

Plaintiff’s allegations fail to provide a basis for a claim over which this Court has

jurisdiction. “The basic statutory grants of federal court subject-matter jurisdiction are contained

in 28 U.S.C. § 1331, which provides for ‘[f]ederal-question’ jurisdiction, and § 1332, which

provides for ‘[d]iversity of citizenship’ jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501

(2006). Federal-question jurisdiction is invoked when a plaintiff pleads a claim “arising under”

the federal laws or the United States Constitution. Id. (citation omitted). For a federal court to

have diversity jurisdiction pursuant to § 1332(a), there must be complete diversity, which means

that each plaintiff must be a citizen of a different state than each defendant, and the amount in

controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

Federal Rule of Civil Procedure 8(a)(1) requires a pleading to contain “a short plain

statement of the grounds for jurisdiction.” Fed. R. Civ. P. 8(a)(2). Thus, “a plaintiff seeking

diversity jurisdiction [must] set forth the factual basis on which that jurisdiction is predicated.”

Farmer v. Fisher, 386 F. App’x 554, 556 (6th Cir. 2010); see also Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 377 (1994) ( “[I]t is to be presumed that a cause lies outside [the

Court’s] limited jurisdiction, and the burden of establishing the contrary rests upon the party

asserting jurisdiction.”). Although this pleading standard does not require “‘detailed factual

allegations,’ a complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v.Twombly, 550 U.S. 544, 555, 557 (2007)).

In the instant case, it appears that Plaintiff seeks to have this Court exercise diversity

jurisdiction under § 1332(a) in light of the fact that she brings only state-law claims. Even

assuming that the parties are diverse, Plaintiff’s allegations are insufficient to support diversity

jurisdiction because she has not plausibly alleged that the amount in controversy exceeds

$75,000. Plaintiff failed to attach her contract with Defendant, and the Court cannot discern

from the Complaint whether Plaintiff was contractually obligated to store Defendant’s scooters

for any length of time. But even assuming Plaintiff’s demand of $3,000 for storing the scooters

is reasonable, she has failed to plausibly allege facts upon which the Court could rely to conclude

that she is owed an additional $72,000. In particular, Plaintiff has failed to plausibly allege facts

from which the Court could in infer that she was, as she alleges, transformed into an employee

and owed an hourly wage and overtime for every hour she stored Defendant’s scooters in her

garage to the tune of $14,420 for the 30 days. Nor has Plaintiff alleged facts upon which the

Court could rely to conclude that she can recover punitive damages for storing the scooters in her

garage. See Preston v. Murty, 32 Ohio St. 3d 334, 334–35 (1987) (punitive damages may be

awarded in tort actions which involve fraud, malice, or insult).

In summary, because Plaintiff has failed to plausibly allege facts upon which this Court

could rely to conclude that the requisite amount in controversy is satisfied, it is

RECOMMENDED that the Court DISMISS this action for failure to assert any claim over

which this Court has subject matter jurisdiction WITHOUT PREJUDICE to filing the state-law

claims in state court.

IV.

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (ECF No. 2) is GRANTED.

For the reasons set forth above, it is RECOMMENDED that the Court DISMISS Plaintiff’s

Complaint pursuant to 28 U.S.C. § 1915(e)(2) WITHOUT PREJUDICE to filing the state-

law claims in state court. Plaintiff’s Motion to Stay (ECF No. 1) is DENIED AS MOOT.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE