Case 1:21-cv-03434-LTS Document 6 Filed 04/30/21 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`KENT A. ALLEN,
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`Plaintiff,
`-against-
`ANTWAN A. PATTON (BIG BOI); ANTONIO
`M. REID (HITCO ENTERTAINMENT);
`BASTIAN LEHMANN (POSTMATES),
`Defendants.
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`21-CV-3434 (LTS)
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`ORDER OF DISMISSAL
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`LAURA TAYLOR SWAIN, Chief United States District Judge:
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`Plaintiff, appearing pro se, brought this action asserting claims for appropriation of his
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`ideas for the search engine Google and the social media platform Instagram.1 By order dated
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`April 22, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that
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`is, in forma pauperis.
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`STANDARD OF REVIEW
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`The Court must dismiss an in forma pauperis complaint, or any portion of the complaint,
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`that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
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`monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B);
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`see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must
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`1 Plaintiff does not specify a basis for the Court’s jurisdiction in this complaint, but in
`substantially similar complaints filed the same day, Plaintiff invoked the Court’s diversity
`jurisdiction. See Allen v. Patton, ECF 1:21-CV-03457, 2 (S.D.N.Y. filed April 19, 2021)
`(complaint naming Defendants Patton, Reid, and William Wang, CEO of Vizio); Allen v. Patton,
`ECF 1:21-CV-03459, 2 (S.D.N.Y. filed April 19, 2021) (complaint naming Defendants Patton,
`Reid, and Sundar Pichai of Alphabet, and alleging that Plaintiff had the idea for Spotify); Allen v.
`Patton, ECF 1:21-CV-03468, 2 (S.D.N.Y. filed April 19, 2021) (complaint naming Defendants
`Patton, Reid, and Amazon founder Jeff Bezos).
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`also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P.
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`12(h)(3).
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`While the law mandates dismissal on any of these grounds, the Court is obliged to
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`construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
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`them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
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`F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
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`original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –
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`to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil
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`Procedure, which requires a complaint to make a short and plain statement showing that the
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`pleader is entitled to relief.
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`The Supreme Court has held that under Rule 8, a complaint must include enough facts to
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`state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the
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`Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing
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`the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v.
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`Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals
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`of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550
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`U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court
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`must determine whether those facts make it plausible – not merely possible – that the pleader is
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`entitled to relief. Id.
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`BACKGROUND
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`Plaintiff Kent Allen alleges the following facts. When Plaintiff was eight years old, he
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`lived in Forest Park, a rural area in Georgia. He had the idea for Google (or Google Maps)
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`technology because he “figured we all needed a way to locate each other.” (ECF 2 at 6.)
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`Plaintiff befriended recording artists Big Boi and Andre 3000, who formed the musical
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`group Outkast. Plaintiff was also “in reach with” Facebook founder Mark Zuckerburg, who he
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`alleges is his cousin. (Id.)
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`Plaintiff moved away from Forest Park at some point during “the .com b[oo]m.” (Id.).
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`During that time, Plaintiff “carried” the domain name Google, but it “was compromised” and he
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`was unable to renew it because someone else purchased the domain name. (Id.) “Only a few
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`close friends knew of [Plaintiff’s] idea” for Google. (Id.) Plaintiff discussed with Big Boi and
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`Andre 3000 his inability to renew the Google domain name, but they said they did not know
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`anything about it. Plaintiff filed a police report about the incident and was told that police had
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`figured out who purchased the domain name and cautioned that individual “not to renew the
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`domain” when it expired one year after purchase. (Id.)
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`When Plaintiff was nine years old, he moved to Decatur, Georgia, where he “helped
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`develop such artists as Bow Wow, Outkast, Ludacris, Lauren London” and later “Jeeezy, and
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`Keyshia Cole.” (Id.) Plaintiff was also waiting for the Google domain purchaser’s one-year
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`registration to expire. In addition, Plaintiff “started to think of other business domains,” and he
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`“composed a list of domains to assign each artist.” (Id.) Plaintiff’s list included the domain
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`names: Postmates, “Kangeroo,” and Amazon; both Big Boi and Andre 3000 saw Plaintiff’s list.
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`Plaintiff “purchased each domain and the same thing happened” that had happened with his
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`Google domain – that is, the domain names were compromised and someone else was able to
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`purchase them. (Id. at 7.)
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`Later, while Plaintiff was present, Big Boi purchased the domain “heymoney.com,”
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`which he intended as a “trading app.” (Id.) After seeing this, Plaintiff was able to determine
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`“which one of his friends was doing this,” that is, that Big Boi was involved with Plaintiff’s
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`compromised domain names. Plaintiff then moved away from the area because he “was being
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`bullied by the local kids.” (Id.)
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`Plaintiff also had the idea for Instagram, and when he was 23, he “gave the idea” to
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`Keyshia Cole “to be released to the public.” (Id.) Plaintiff’s “idea was for entertainers to stay in
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`reach with each other and also market to the general public.” (Id.)
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`Many of the artists that Plaintiff “helped develop” are “against” him. (Id. at 8.) He was
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`unsuccessful in contacting them and “was made a mockery of on Instagram.” (Id.) If Plaintiff
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`had been “compensated [for his] ideas,” he would have been able to help his mother with her
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`medical expenses.
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`At 26 years old, Plaintiff began attending college and forgot about these matters from his
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`childhood. At that point, Plaintiff resided in Pompano Beach, Florida. Because many of the
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`individuals from Plaintiff’s childhood were involved in businesses near Plaintiff’s home, he was
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`fired without cause from many jobs. He then worked as a self-employed accountant but
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`eventually stopped doing so due to the “mockery [he] incurred on social media,” including on
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`Instagram and Facebook. Plaintiff seeks to be “compensated and . . . given credit for [his] ideas.”
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`(Id. at 9.)
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`Plaintiff names as defendants in this action Antwan A. Patton, who uses the stage name
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`Big Boi; Antonio M. Reid, of Hitco Entertainment; and Bastian Lehmann, a co-founder of
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`Postmates. Plaintiff identifies himself as a citizen of Florida, and alleges that Patton is a citizen
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`of Georgia, and that Reid and Lemann are both citizens of California. Plaintiff seeks more than
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`$12 million, based on “the company valuation of Postmates.” (Id. at 11.)
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`A.
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`Appropriation of Ideas
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`DISCUSSION
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`Plaintiff’s allegations that he had the idea for the Instagram platform and Google’s search
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`engine and map software but was not credited or compensated for these ideas could be liberally
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`construed as seeking relief for copyright or patent infringement.
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`Relief Under the Copyright Act
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`The Copyright Act gives the owner of a copyright certain “exclusive rights,” 17 U.S.C.
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`§ 106, to protect “original works of authorship,” 17 U.S.C. § 102(a). “[T]he author is the party
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`who actually creates the work, that is, the person who translates an idea into a fixed, tangible
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`expression entitled to copyright protection.” Cmty. for Creative Non-Violence v. Reid, 490 U.S.
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`730, 737 (1989). To establish copyright infringement, a claimant must show: (1) ownership of a
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`valid copyright; and (2) unauthorized copying of constituent elements of the work that are
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`original. Feist Publ’n, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991); Jorgenson v.
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`Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003).
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`However, “copyright does not protect an idea, but only the expression of an idea.”
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`Richard J. Zitz, Inc. v. Pereira, 225 F.3d 646 (2d Cir. 2000) (citing Kregos v. Associated Press, 3
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`F.3d 656, 663 (2d Cir. 1993)); see 17 U.S.C. § 102(b) (“In no case does copyright protection for
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`an original work of authorship extend to any idea [,] . . . concept, [or] principle, . . . regardless of
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`the form in which it is described, explained, illustrated, or embodied in such work.”); Harper &
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`Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985) (“[N]o author may copyright
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`. . . ideas.”); Williams v. Chrichton, 84 F.3d 581, 589 (2d Cir. 1996) (“Any similarity in the
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`theme of the parties’ works relates to the unprotectible idea of a dinosaur zoo.”); Eden Toys, Inc.
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`v. Marshall Field & Co., 675 F.2d 498, 501 (2d Cir. 1982) (“Plaintiff cannot copyright the ‘idea’
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`of a snowman.”); Dean v. Cameron, 53 F. Supp. 3d 641, 648 (S.D.N.Y. 2014) (“Plaintiff does
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`not have a monopoly on the idea of floating or airborne land.”); Castorina v. Spike Cable
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`Networks, Inc., 784 F. Supp. 2d 107, 112 (E.D.N.Y. 2011) (“[A] theme of ‘referencing
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`significant Americans’ is an uncopyrightable idea.”).
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`Here, Plaintiff alleges that when he was eight years old, he had the idea for Google,
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`which the Court understands to mean that he had the idea for the search engine or for the map
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`software that are now known as Google and Google Maps. He further alleges that he had the idea
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`for a platform like Instagram that would allow artists to share content with each other and the
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`public. Plaintiff does not allege that at any point he created any software or other tangible
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`expression of these ideas or that he holds any copyright. Because Plaintiff alleges nothing more
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`than that he had an uncopyrightable idea, he fails to state a claim on which relief can be granted
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`under the Copyright Act.
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`Patent Infringement
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`“[T]he act of invention itself vests an inventor with a common law or ‘natural’ right to
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`make, use and sell his or her invention, absent conflicting patent rights in others.” Arachnid, Inc.
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`v. Merit Indus., Inc., 939 F.2d 1574, 1578 (Fed. Cir. 1991). But a patent “enlarges the natural
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`right, adding to it the right to exclude others from making, using or selling the patented
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`invention.” Id. “[O]wnership only of the invention gives no right to exclude, which is obtained
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`only from the patent grant.” Id. at 1578–79.
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`The Patent Act of 1952 provides that a civil action for infringement may be brought by “a
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`patentee.” 35 U.S.C. § 281. The statute defines “patentee” to include the party to whom the
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`patent was issued and the successors in title to the patent, 35 U.S.C. § 100(d), and has been
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`interpreted to require that a suit for infringement be brought by a party holding legal title to the
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`patent, Arachnid, Inc., 939 F.2d at 1578-79. To state a claim of patent infringement, a plaintiff
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`must allege facts suggesting that the alleged infringer made, used, offered to sell, sold, or
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`imported a patented invention during the term of the plaintiff’s patent and without authority to do
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`so. 35 U.S.C. § 271.
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`Here, Plaintiff alleges only that he had the idea for something like Google or Instagram –
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`not that he actually developed the technology or was issued a patent. Plaintiff thus fails to state a
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`claim for patent infringement.
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`B.
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`Domain Names
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`Plaintiff’s allegations that he was deprived of the ability to profit from registration of
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`various well-known domain names, including the domain names Google, Amazon, and
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`Postmates, could be liberally construed as seeking relief for “cybersquatting.” The
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`Anticybersquatting Consumer Protection Act (ACPA) amends the Trademark Act of 1946 to
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`create a federal remedy for cybersquatting – that is, for warehousing and trafficking in domain
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`names.2 See also Sporty’s Farm L.L.C. v. Sportsman’s Mkt., Inc., 202 F.3d 489, 496 (2d Cir.
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`2000) (discussing bad faith intent to profit from domain names).
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`Plaintiff seems to allege that when he was eight years old, he registered or attempted to
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`register the domain name Google before that domain name was taken. But when it was time to
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`renew his registration, Plaintiff was unable to do so because the domain “was compromised.”
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`(ECF 2 at 6). Plaintiff later determined that Antwan Patton (Big Boi) was involved in
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`2 The ACPA provides, at 15 U.S.C. § 1125(d)(1)(A), that:
`A person shall be liable in a civil action by the owner of a mark, including a
`personal name which is protected as a mark under this section, if, without regard
`to the goods or services of the parties, that person—(i) has a bad faith intent to
`profit from that mark, including a personal name which is protected as a mark
`under this section; and (ii) registers, traffics in, or uses a domain name that—(I) in
`the case of a mark that is distinctive at the time of registration of the domain
`name, is identical or confusingly similar to that mark; (II) in the case of a famous
`mark that is famous at the time of registration of the domain name, is identical or
`confusingly similar to or dilutive of that mark; . . . .
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`compromising the domain name (or registering the domain name himself), which Plaintiff
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`surmised based on his having seen Patton register another unrelated domain name —
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`heymoney.com.
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`Plaintiff does not specify what federal law Defendant Patton’s alleged conduct would
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`violate, and Plaintiff’s allegations that Defendant Patton disrupted Plaintiff’s attempts to profit
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`from registration of domain names do not appear to state a claim under any federal statute.
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`Plaintiff’s complaint gives no indication that he has a registered trademark for any word, name,
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`slogan, logo, or symbol, or that Defendants have infringed any trademark he holds. Plaintiff’s
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`allegations that he intended to warehouse domain names linked to, and presumably trademarked
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`by, well-known businesses instead appears to be the type of behavior that the ACPA prohibits.
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`Moreover, Plaintiff’s allegations about his reasons for believing that Defendant Patton was
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`involved (i.e., that he saw Patton register a different domain name) do not give rise to a plausible
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`inference that Patton “compromised” Plaintiff’s domain preventing him from renewing the
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`domain registration. Plaintiff thus fails to state a claim against any Defendant for interfering with
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`his domain registration.
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`C.
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`Diversity Jurisdiction Over State Law Claims
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`A district court may decline to exercise supplemental jurisdiction over state-law claims
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`when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
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`Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and
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`only state-law claims remain, the federal court should decline the exercise of jurisdiction.”
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`Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
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`Here, the Court has dismissed Plaintiff’s federal claims. But it appears that Plaintiff may
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`be able to invoke the Court’s diversity jurisdiction under 28 U.S.C. § 1332, in order to assert his
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`state law claims. Plaintiff pleads that he is a Florida citizen, Defendants are citizens of Georgia
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`and California, and that he seeks damages in excess of $75,000. Even if the Court can exercise
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`diversity jurisdiction over any state law claims, the Court concludes that there are multiple
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`reasons why such claims must be dismissed.3
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`First, any claims based on Plaintiff’s allegations that decades ago (1) he thought of the
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`idea for Google and Instagram but did not receive credit or compensation, and (2) Defendants
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`interfered with his domain-name registration would be time-barred, whether they arise under
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`Georgia, New York, or Florida state law. Second, Plaintiff’s general idea for a search engine or
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`platform is not sufficiently concrete to be a protectible idea under state law. See, e.g., Schroeder
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`v. Pinterest Inc., 133 A.D.3d 12, 29-30, 17 N.Y.S.3d 678, 692 (1st Dep’t 2015) (a claim for
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`misappropriation of ideas requires a fiduciary or contractual relationship and that idea be “novel
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`and concrete”); Educ. Sales Programs, Inc. v. Dreyfus Corp., 317 N.Y.S.2d 840, 843 (Sup. Ct.,
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`N.Y. Cnty., 1970) (“Not every ‘good idea’ is a legally protectible idea.”); see also Burgess v.
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`Coca-Cola Co., 245 Ga. App. 206, 209 (2000) (holding that to succeed on claim for wrongful
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`appropriation of an unpatented or unpatentable idea or product, the idea must be: “1) . . . novel;
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`2) [disclosed] in confidence; 3) adopted and made use of by the defendant; and 4) sufficiently
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`concrete in its development to be usable”). Thus, even if it were true that Plaintiff had the idea
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`for a search engine like Google or a platform like Instagram, this alone would not establish any
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`right to relief.
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`3 It is unclear why Plaintiff brings suit in this Court. He alleges that the individual
`defendants reside outside this district, and appears to allege that the incidents giving rise to his
`claims took place when he resided in Georgia and Florida. Under 28 U.S.C. § 1391, venue does
`not appear to lie in this district. Applying New York choice-of-law rules, “the law of the
`jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest
`interest in regulating behavior within its borders.” White v. ABCO Eng’g Corp., 221 F.3d 293,
`301 (2d Cir. 2000) (citation omitted).
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`D.
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`Leave to Replead
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`Generally, a court should not dismiss a pro se complaint “without granting leave to
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`amend at least once when a liberal reading of the complaint gives any indication that a valid
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`claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Chavis v.
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`Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted)). But a court has
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`inherent power to dismiss without leave to amend or replead if “the substance of the claim
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`pleaded is frivolous on its face,” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (citation
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`omitted), or where amendment would otherwise be futile, Hill v. Curcione, 657 F. 3d 116, 123-
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`24 (2d Cir. 2011); see also Shapiro v. McManus, 136 S. Ct. 450, 455-56 (2015) (holding that
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`federal-question jurisdiction is lacking where the claims are “wholly insubstantial and frivolous,”
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`“essentially fictitious,” or “obviously without merit” (internal quotation marks and citations
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`omitted)). Because Plaintiff’s claims appear to be wholly implausible and granting leave to
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`amend his complaint would be futile, the Court declines to do so.
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`E.
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`Litigation History
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`On the same day that Plaintiff filed this complaint, he filed four others, in which he also
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`sought waiver of the filing fees. Three of these complaints are virtually identical to this one,
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`except that (1) the other three suits specify that they are brought under the Court’s diversity
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`jurisdiction; and (2) each also names Antwan Patton and Antonio Reid of Hitco Entertainment
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`but replaces the co-founder of Postmates with another defendant. See Allen v. Patton, ECF 1:21-
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`CV-03457, 2 (S.D.N.Y. filed April 19, 2021) (complaint naming William Wang, CEO of Vizio
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`as a third defendant); Allen v. Patton, ECF 1:21-CV-03459, 2 (S.D.N.Y. filed April 19, 2021)
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`(complaint naming Sundar Pichai of Google as a third defendant and also alleging that Plaintiff
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`had the idea for Spotify); Allen v. Patton, ECF 1:21-CV-03468, 2 (S.D.N.Y. filed April 19,
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`2021) (complaint naming Amazon founder Jeff Bezos). In the fourth complaint, Allen v. Cole,
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`ECF 1:21-CV-03450, 2 (S.D.N.Y. filed April 19, 2021), Plaintiff’s allegations are substantially
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`similar to those in this complaint, but he names Facebook founder Mark Zuckerburg, Keyshia
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`Cole, and Hartwig Mausch as Defendants and adds allegations that he had the idea for the app
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`“Stash.” All of the complaints suffer from defects similar to the defects in this complaint and will
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`be addressed by separate orders.
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`The Court warns Plaintiff that vexatious or frivolous litigation in this Court may result in
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`an order barring Plaintiff from filing new actions in forma pauperis unless he receives prior
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`permission. See 28 U.S.C. § 1651.
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`CONCLUSION
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`The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
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`the docket. Plaintiff’s complaint, brought in forma pauperis under 28 U.S.C. § 1915(b), is
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`dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii).
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`The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
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`not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
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`appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
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`SO ORDERED.
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`Dated: April 30, 2021
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`New York, New York
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`/s/ Laura Taylor Swain
`LAURA TAYLOR SWAIN
`Chief United States District Judge
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`11
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