Case 1:21-cv-03457-LTS Document 7 Filed 06/03/21 Page 1 of 7
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`KENT A. ALLEN,
`
`Plaintiff,
`-against-
`ANTWAN PATTON (BIG BOI); ANTONIO
`RIED (HITCO ENTERTAINMENT);
`WILLIAM WANG (CEO OF VIZIO),
`Defendants.
`
`21-CV-3457 (LTS)
`
`ORDER OF DISMISSAL
`
`LAURA TAYLOR SWAIN, Chief United States District Judge:
`
`Plaintiff, who is appearing pro se, asserts claims for appropriation of his ideas for Google
`
`and Instagram, and for developing domain names including Postmates, Kangaroo, and Amazon.
`
`He invokes the diversity of citizenship statute, 28 U.S.C. § 1332, as the basis for this Court’s
`
`jurisdiction. By order dated April 29, 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 the complaint.
`
`STANDARD OF REVIEW
`
`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). The Court must also
`
`dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P.
`
`12(h)(3).
`
`While the law mandates dismissal on any of these grounds, the Court is obliged to
`
`construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
`
`

`

`Case 1:21-cv-03457-LTS Document 7 Filed 06/03/21 Page 2 of 7
`
`them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
`
`F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
`
`original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –
`
`to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil
`
`Procedure, which requires a complaint to make a short and plain statement showing that the
`
`pleader is entitled to relief.
`
`The Supreme Court has held that, under Rule 8, a complaint must include enough facts to
`
`state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
`
`570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the
`
`Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing
`
`the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v.
`
`Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals
`
`of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550
`
`U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court
`
`must determine whether those facts make it plausible – not merely possible – that the pleader is
`
`entitled to relief. Id.
`
`BACKGROUND
`
`In prior actions assigned to this Court, Plaintiff Kent Allen raised the same claims raised
`
`here but named different defendants. See Allen v. Patton, ECF 1:21-CV-3434, 2 (S.D.N.Y. Apr.
`
`30, 2021); Allen v. Cole, ECF 1:21-CV-3450, 2 (S.D.N.Y. May 7, 2021). Plaintiff attached the
`
`same statement of facts to the complaints in this action and the prior actions. (See ECF 2, at 7;
`
`ECF 1:21-CV-3434, 2, at 6; ECF 1:21-CV-3450, 2, at 7.) Here, Plaintiff adds William Wang,
`
`CEO of Vizio as a Defendant, but the complaint alleges no facts regarding Wang or Vizio.
`
`2
`
`

`

`Case 1:21-cv-03457-LTS Document 7 Filed 06/03/21 Page 3 of 7
`
`Otherwise, Plaintiff alleges identical facts in all three complaints. The Court therefore assumes
`
`familiarity with the complaints in 21-CV-3434 and 21-CV-3450 for the purposes of this order.
`
`A.
`
`Failure to State a Claim
`
`DISCUSSION
`
`The Court construes Plaintiff’s allegations that he had the idea for the Instagram platform
`
`and Google’s search engine and map software, but was not credited or compensated for these
`
`ideas as seeking relief for copyright or patent infringement. The Court also construes Plaintiff’s
`
`allegations that he was deprived of the ability to profit from registration of various well-known
`
`domain names, including the domain names Google, Amazon, and Postmates, as seeking relief
`
`for “cybersquatting.”1
`
`The Court dismisses each of these claims for the same reasons it dismissed Plaintiff’s
`
`claims in ECF 1:21-CV-3434, 6 and ECF 1:21-CV-3450, 6. That is, because Plaintiff does not
`
`allege that at any point he created any software or other tangible expression of his ideas or that
`
`he holds any copyright, he alleges nothing more than that he had an uncopyrightable idea, and he
`
`therefore fails to state a claim on which relief can be granted under the Copyright Act. And
`
`because Plaintiff alleges only that he had the idea for something like Google or Instagram – not
`
`
`1 The Anticybersquatting Consumer Protection Act (ACPA) amends the Trademark Act
`of 1946 to create a federal remedy for cybersquatting – that is, for warehousing and trafficking in
`domain names. 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; . . . .
`
`3
`
`

`

`Case 1:21-cv-03457-LTS Document 7 Filed 06/03/21 Page 4 of 7
`
`that he actually developed the technology or was issued a patent, Plaintiff fails to state a claim
`
`for patent infringement. Finally, because the complaint gives no indication that Plaintiff has a
`
`registered trademark for any word, name, slogan, logo, or symbol, that Defendants have
`
`infringed any trademark he holds, or that Defendants were involved in preventing Plaintiff from
`
`renewing any domain registration, Plaintiff fails to state a claim against any Defendant for
`
`interfering with his domain registration.
`
`B.
`
`Frivolousness
`
`Under the IFP statute, a court must dismiss a case if it determines that the action is
`
`frivolous or malicious. 28 U.S.C. §1915(e)(2)(B)(i). 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.” Livingston, 141 F.3d
`
`at 437 (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).
`
`The Court, after reviewing Plaintiff’s complaint, finds that it lacks any arguable basis in
`
`law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Plaintiff’s claim that, as an
`
`eight or nine-year-old child, he had the ideas for Google and Instagram is baseless, particularly
`
`in light of claims Plaintiff has advanced in his numerous other complaints described below. Thus,
`
`the Court also dismisses the complaint as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
`
`In deference to Plaintiff’s pro se status, the Court would normally direct 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
`
`4
`
`

`

`Case 1:21-cv-03457-LTS Document 7 Filed 06/03/21 Page 5 of 7
`
`dismiss complaint sua sponte and without providing leave to amend “where the substance of the
`
`claim pleaded is frivolous on its face”).
`
`C.
`
`Litigation History
`
`Since April 19, 2021, Plaintiff has filed fifteen similar actions in this Court. See, e.g.,
`
`Allen v. Payton, ECF 1:21-CV-4698, 2 (S.D.N.Y. filed May 25, 2021) (complaint alleging that
`
`Plaintiff came up with the idea of Dasani water); Allen v. Zuckerberg, ECF 1:21-CV-4699, 2
`
`(S.D.N.Y. filed May 25, 2021) (complaint alleging Plaintiff had the idea for Facebook); Allen v.
`
`EK, ECF 1:21-CV-4696, 2 (S.D.N.Y. filed May 25, 2021) (complaint alleging Plaintiff had the
`
`idea for Spotify); Allen v. Klein, ECF 1:21-CV-3839, 4 (S.D.N.Y. May 18, 2021) (dismissing the
`
`complaint for failure to state a claim); Allen v. Almanazar, ECF 1:21-CV-3838, 4 (S.D.N.Y. May
`
`17, 2021) (dismissing the complaint for failure to state a claim and as frivolous and directing
`
`Plaintiff to show cause why he should not be barred from filing future actions IFP without first
`
`receiving permission from the Court); Allen v. Trimble, ECF 1:21-CV-4299, 2 (S.D.N.Y. filed
`
`May 11, 2021) (complaint alleging that Plaintiff developed singer Dej Loaf and invented Twitter
`
`and Instagram); Allen v. Tenev, ECF 1:21-CV-4119, 2 (S.D.N.Y. filed May 7, 2021) (complaint
`
`alleging that, as a child, Plaintiff “thought about how Robin Hood the cartoon show should also
`
`be used for stock trading”); Allen v. Cole, ECF 1:21-CV-3450, 6 (S.D.N.Y. May 7, 2021)
`
`(dismissing the complaint and warning Plaintiff that vexatious or frivolous litigation may result
`
`in an order barring him from filing new actions IFP); Allen v. Patton, ECF 1:21-CV-3434, 6
`
`(S.D.N.Y. Apr. 30, 2021) (same); Allen v. Finley, ECF 1:21-CV-3840, 2 (S.D.N.Y. filed April
`
`29, 2021) (complaint alleging that Plaintiff invented the business name “Aquafina”); Allen v.
`
`Thomas, ECF 1:21-CV-3841, 2 (S.D.N.Y. filed April 29, 2021) (complaint describing Plaintiff’s
`
`alleged creation of the name “GameStop”); Allen v. Cole, ECF 1:21-CV-3844, 2 (S.D.N.Y. filed
`
`Apr. 29, 2021) (complaint alleging Plaintiff developed singer Keyshia Cole and invented the
`
`5
`
`

`

`Case 1:21-cv-03457-LTS Document 7 Filed 06/03/21 Page 6 of 7
`
`business name “Sunrun”); Allen v. Patton, ECF 1:21-CV-3459, 2 (S.D.N.Y. filed April 19, 2021)
`
`(complaint naming Sundar Pichai of Google as a third defendant and also alleging that Plaintiff
`
`had the idea for Spotify); and Allen v. Patton, ECF 1:21-CV-3468, 2 (S.D.N.Y. filed April 19,
`
`2021) (complaint naming Amazon founder Jeff Bezos).
`
`Based on this litigation history, by order dated May 17, 2021, the Court directed Plaintiff
`
`to show cause why he should not be barred from filing any further actions in this Court IFP
`
`without first obtaining permission from this Court to file his complaint. Allen v. Almanazar, ECF
`
`1:21-CV-3838, 4 (S.D.N.Y. May 17, 2021). As of the date of this order, Plaintiff has not
`
`submitted a declaration. Thus, the Court again warns Plaintiff that continued vexatious or
`
`frivolous litigation in this Court may result in imposition of additional filing restrictions. See 28
`
`U.S.C. § 1651.
`
`CONCLUSION
`
`Plaintiff’s complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for failure to
`
`state a claim under 28 U.S.C. § 1915(e)(2)(b)(ii), and as frivolous, 28 U.S.C. § 1915(e)(2)(B)(i).
`
`Plaintiff has consented to receive electronic service of notices and documents in this
`
`action. (ECF 6.)
`
`
`
`
`
`
`
`6
`
`

`

`Case 1:21-cv-03457-LTS Document 7 Filed 06/03/21 Page 7 of 7
`
`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:
`
`
`
`
`
`June 3, 2021
`New York, New York
`
`
`
`
`
`
`/s/ Laura Taylor Swain
`LAURA TAYLOR SWAIN
`Chief United States District Judge
`
`7
`
`