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Rosado v. Roman

United States District Court, D. Oregon

August 11, 2017

RlCHERD ROMAN, et al., Defendants.

          Samuel Rivera Rosado, pro se.

          Xavier Becerra, Attorney General, Carol A. Squire, Supervising Deputy Attorney General, Phillip M. Hoos, Deputy Attorney General, and Deborah M. Fletcher, Deputy Attorney General, CALIFORNIA DEPARTMENT OF JUSTICE, Of Attorneys for the California Defendants.

          Daniel S. Hasson, Davis Rothwell Earle & Xochihua, PC, Of Attorneys for Lucid Energy, Inc.


          Michael H. Simon United States District Judge.

         Plaintiff Samuel Rivera Rosado (“Rosado”) filed this lawsuit pro se naming as defendants: Richerd Roman, CEO, Lucid Energy, Lucid Energy System, Susan Priddy, Project Director, Lucid Commercial Micro-Hydro Energy System, Roger Johnson, Deputy Director of the California Energy Commission, and the California Energy Commission. ECF 1 at 1-2. Lucid Energy, Inc. (“LEI”), although not specifically named as a defendant, filed a motion to dismiss in the event that the Court liberally construes Rosado's complaint as asserting claims against LEI, arguing that it was not properly named or served and that the Court lacks jurisdiction over LEI. Roger Johnson and the California Energy Commission (collectively the “California Defendants”) filed a motion to dismiss, arguing that Rosado fails to state a claim on which relief can be granted. The Court finds that even under the liberal pleading standards afforded a pro se plaintiff, Rosado fails to state a claim upon which relief may be granted against any defendant. Accordingly, for the reasons that follow, this case is dismissed.


         A. Motion to Dismiss

         A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiffs legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

         B. Pro Se Pleading Standard

         A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “‘Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.'” Garity v. APWU Nat'l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep 't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).


         Rosado filed his pro se Complaint against all Defendants on March 29, 2016, in the Southern District of Florida. ECF 1. Magistrate Judge Patrick A. White, noting that Rosado's Complaint “is far from clear[, ]” transferred the case to this Court because the Complaint “alleged events giving rise to the cause of action [that] occurred in the City of Portland, Oregon and the City of Portland lies within the jurisdiction of the United States District Court, District of Oregon.” ECF 5 at 2.

         Rosado styles his claims as being civil rights claims under 42 U.S.C. § 1983. Mindful of the liberal construction a court is to give pro se pleadings, the Court looks to the substance of Rosado's claims and not the label he provides. The substance of his Complaint demonstrates that he purports to bring a copyright infringement claim.

         In Rosado's Complaint, Rosado alleges that Defendants infringed his copyrighted technical drawings of a purported pipeline that produces clean energy from water. Rosado had registered the drawings of the “New Super Power Square Pipeline” with the Copyright Office as a technical drawing on May 21, 2001. ECF 16 at 2. On March 10, 2003, Rosado registered his book explaining his pipeline design with the Copyright Office, titled “The New Super Power Square Pipeline That Produce Electricity From Fresh Or Seawater.” ECF 16-1 at 17.

         On October 24, 2016, the Court issued its Order granting Plaintiffs Application to Proceed in forma pauperis (“IFP”). ECF 11. Pursuant to that Order, Plaintiff had 30 days to prepare an original summons and submit it to the Clerk of Court for issuance, provide to the Clerk of Court the original and sufficient service copies of the issued summons and complaint, and complete and return to the Clerk of Court the U.S. Marshals Service Form (USM 285) for service of process. On January 12, 2017, Rosado filed a Motion for Default Judgment, but proof of service on Defendants had not been filed with the Court. ECF 16. The Court denied Rosado's motion and ordered that if Rosado “intends to proceed with this action, he must, on or before April 28, 2017, either comply with the Court's Order dated October 24, 2016 (ECF 11) or otherwise properly serve Defendants without the aid of the U.S. Marshals Service and file with the Court proper proof of service.” ECF 17.

         On April 11, 2017, Summonses were issued for two of the individually named defendants: “Susan Priddy” (identified as the “Project Director, Lucid Energy”) and “Richerd Roman” (identified as “CEO, Lucid Energy”). ECF 18. On April 18, 2017, LEI received two sealed packages of documents at its office address, addressed to the individually-named defendants. The two packages each contained a Complaint and a Summons (one to individual defendant Roman and one to individual defendant Priddy). Based on these Summonses and Complaint directed to LEI's office, out of an abundance of caution, LEI moved to dismiss Rosado's Complaint on May 9, 2017. ECF 21.

         On May 2, 2017, the clerk of the Court issued a third Summons requested by Rosado, to an entity identified as “Lucid Commercial Micro-Hydro Energy System Company, ” with LEI's office address. On May 23, 2017, this Summons was sent via certified mail, was refused, and was returned to the U.S. Marshal's Office. ECF 35. On June 5, 2017, the U.S. Marshals attempted service on “Lucid Commercial Micro-Hydro Energy System Company” by service to Ron Peters, a Director at LEI. Mr. Peters refused service in person, stating the “name of company is not correct” and the Summons was returned as unexecuted. Id.

         Regarding the California Defendants, a Summons was issued on April 11, 2017, to the California Energy Commission. ECF 18. This Summons was accompanied by a Complaint identifying Roger Johnson, the Deputy Director of the California Energy Commission. ECF 24. Allan Ward, Associate Chief Counsel for the California Energy Commission, accepted service on May 12, ...

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