Wallace v. Ideavillage Products - Opinion Dismissing Complaint With Prejudice

Case 1:18-cv-02089-RMB-KMW Document 4 Filed 03/02/18 Page 1 of 8 PageID: 679
[Dkt. No. 1]
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ALLYSON WALLACE,
Plaintiff,
Civil No. 18-2089(RMB/KMW)
v.
IDEAVILLAGE PRODUCTS CORP.; OPINION

KEVIN J. O’CONNOR; and LUM,
DRASCO & POSITAN LLC,
Defendants.
BUMB, United States District Judge:
Plaintiff Allyson Wallace (the “Plaintiff”) initiated this
action on February 9, 2018 with the filing of a complaint (the
“Complaint”), to which Plaintiff attached voluminous exhibits.
[Dkt. No. 1]. Also attached to the Complaint is an application
to proceed in forma pauperis (“IFP”). [Dkt. No. 1-7]. Based on
Plaintiff’s affidavit of indigence, the Court will grant her
application pursuant to 28 U.S.C. § 1915(a) and order the Clerk
of the Court to open this matter and file the Complaint.
At this time, because Plaintiff is proceeding IFP, the
Court must preliminarily screen the Complaint, and must dismiss
if the Complaint is frivolous or malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief

from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2).
I. Background
On February 9, 2018, Plaintiff filed the Complaint against
Ideavillage Products Corp. (“Ideavillage”); Kevin J. O’Connor
(“O’Connor”); and Lum, Drasco and Positan LLC (“LDP” and
collectively, the “Defendants”). Plaintiff alleges that
Ideavillage has infringed Plaintiff’s design patent on the “Body
Washing Brush,” Patent No. 485,990 (the “Patent”). (Compl. at
3).
This is not the first time Plaintiff has sued Ideavillage
in this district for alleged infringement of the Patent. 1 In
Wallace v. Spin Spa, Civ. No. 06-5673 (JAD), Plaintiff filed a
complaint on November 27, 2006 alleging that “Spin Spa, Inc.”
had infringed the Patent. As it turned out, Spin Spa is the name
of the allegedly infringing product, whose manufacturer was
Ideavillage. [See 06-5673, Dkt. No. 16-2 at 1]. On March 28,
2011, the court granted Plaintiff leave to amend her complaint
to name Ideavillage, rather than Spin Spa, and on May 11, 2011,
Plaintiff filed an amended complaint naming Ideavillage as the
1 Under Fed. R. Evid. 201(b)(2), this Court may

take judicial notice of Plaintiff's prior proceedings and the
publicly filed documents therein.
2
defendant and alleging one count of patent infringement. [Id. at
Dkt. No. 26, 27].
On November 16, 2012, the parties consented to the
jurisdiction of United States Magistrate Judge Joseph A.
Dickson, and the case was reassigned to Judge Dickson. On
December 11, 2013, Ideavillage filed a motion for summary
judgement. [Id. at Dkt. No. 61]. Judge Dickson granted
Ideavillage’s motion on September 15, 2014, dismissing
Plaintiff’s entire case with prejudice. See Wallace v.
Ideavillage Prod. Corp., No. 06-CV-5673-JAD, 2014 WL 4637216, at
*1 (D.N.J. Sept. 15, 2014). This decision was based on the
court’s recognition of “manifest differences in the overall
appearance” of the Patent and the allegedly infringing
Ideavillage product and its finding that “[Plaintiff] cannot, as
a matter of law, prove that the designs appear substantially the
same.” Id. at *4; see Egyptian Goddess, Inc. v. Swisa, Inc., 543
F.3d 665, 678 (Fed. Cir. 2008). The court further undertook a
comparison of the Patent and the prior art and held that “no
reasonable ordinary observer, familiar with the prior art, would
be deceived into believing the I[deavillage] [p]roduct is the
same as the design depicted in the” Patent. Wallace, 2014 WL
4637216 at *5; see Egyptian Goddess, 543 F.3d. at 676.
Plaintiff appealed the court’s grant of summary judgment
for Ideavillage, and the Federal Circuit affirmed on March 3,
3
2016. See Wallace v. Ideavillage Prod. Corp., 640 F. App'x 970
(Fed. Cir. 2016).
II. Legal Standard
As stated above, pursuant to 28 U.S.C. § 1915(e)(2), the
Court must preliminarily screen IFP filings, and must dismiss
any filing that is frivolous or malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief.
Federal Rule of Civil Procedure 8(a) requires that a
complaint contain:
(1) [A] short and plain statement of the grounds for

the court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
(2) [A] short and plain statement of the claim showing

that the pleader is entitled to relief; and
(3) [A] demand for the relief sought, which may

include relief in the alternative or different types
of relief.
To survive sua sponte screening for failure to state a
claim, a complaint must allege “sufficient factual matter” to
show that the claim is facially plausible. Fowler v. UPMS
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted).
“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.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308
4
n.3 (3d Cir. 2014). “[A] pleading that offers ‘labels or
conclusions' or ‘a formulaic recitation of the elements of a
cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). In screening a complaint to verify whether it
meets these standards, however, this Court is mindful of the
requirement that pro se pleadings must be construed liberally in
favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-
21(1972).
A complaint is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,
325 (1989) (interpreting the predecessor of § 1915(e)(2), the
former § 1915(d)). The standard for evaluating whether a
complaint is “frivolous” is an objective one. Deutsch v. United
States, 67 F.3d 1080, 1086–87 (3d Cir.1995). A determination of
“maliciousness” requires a subjective inquiry into the
litigant's motivations at the time of the filing of the lawsuit
to determine whether the action is an attempt to vex, injure, or
harass the defendant. Deutsch, 67 F.3d at 1086. Examples of
malicious claims can include those that “duplicate . . .
allegations of another . . . federal lawsuit by the same
plaintiff.” Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993).
III. Analysis
5
1. Plaintiff Makes No Allegations Against O’Connor or

LDP
The court takes judicial notice of the fact that LDP, and
O’Connor, served as counsel for Ideavillage in Plaintiff’s 2006
lawsuit. Though they have been named as defendants here, the
Plaintiff makes no mention of either O’Connor or LDP in the
Complaint. This clearly falls well short of both the requirement
under Fed. R. Civ. P. 8 that a complaint set forth a “short and
plain statement of the claim,” and the requirement under Fed. R.
Civ. P. 12(b)(6) that claims be facially plausibile. The Court
will dismiss Plaintiff’s claims against O’Connor and LDP without
prejudice, and Plaintiff will be granted thirty (30) days to
amend her Complaint to state a claim against these Defendants.
The Court notes, however, that any amended complaint should make
clear the basis of this Court’s subject matter jurisdiction over
O’Connor and LDP, and that if Plaintiff does not amend or if the
Court is not satisfied of its jurisdiction, it will dismiss such
claims with prejudice.
2. The Patent Infringement Claim is Duplicative of a

Previous Claim Brought by Plaintiff in this District
The allegations in Plaintiff's complaint against
Ideavillage are identical to those made (and decided) in her
2006 case before Judge Dickson. Plaintiff seeks a second bite at
the proverbial apple. It is not clear whether she asks this
Court to ignore the decisions by Judge Dickson and the Federal
6
Circuit or to review those judgments. This Court will do
neither. Plaintiff’s claims against Ideavillage fall squarely
within the doctrine of res judicata and she is precluded from
relitigating them here.
Res judicata, or claim preclusion, applies when “there has
been (1) a final judgment on the merits in a prior suit
involving (2) the same parties or their privies and (3) a
subsequent suit based on the same cause of action.” Lubrizol
Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). “The
doctrine of res judicata bars not only claims that were brought
in a previous action, but also claims that could have been
brought.” In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008)
(internal citation omitted). Here, the Federal Circuit affirmed
the award of summary judgment in the 2006 action, which was
between this Plaintiff and Ideavillage and alleged infringement
of the same patent by the same product. As such, res judicata
bars any claims against Ideavillage in this case. 2
2 Moreover, “[a]s part of its general power to administer its

docket, a district court may dismiss a duplicative complaint.”
Fabics v. City of New Brunswick, 629 Fed. Appx. 196, 198 (3d
Cir. 2015) (internal quotations omitted); Gause v. Court of
Common Pleas, 571 Fed. Appx. 144, 145 (3d Cir. 2014) (citing
Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir.1993) (holding
that a district court may dismiss duplicative complaints under §
1915(e)); Aziz v. Burrows, 976 F.2d 1158, 1158–59 (8th Cir.
1992)(same). Where it comes to Ideavillage, the Plaintiff’s
Complaint here is completely duplicative of her 2006 case.
7
IV. Conclusion
For the foregoing reasons, the Court will dismiss
Plaintiff’s Complaint without prejudice. Plaintiff will have
thirty (30) days to amend her Complaint to allege claims against
O’Connor and LDP. Plaintiff’s claims against Ideavillage are
dismissed, with prejudice. An accompanying Order shall issue on
this date.
s/ Renee Marie Bumb

RENÉE MARIE BUMB
United States District Judge
DATED: March 2, 2018

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Case 1:18-cv-02089-RMB-KMW Document 4 Filed 03/02/18 Page 1 of 8 PageID: 679

IN THE UNITED STATES DISTRICT COURT

IDEAVILLAGE PRODUCTS CORP.; OPINION

BUMB, United States District Judge:

Plaintiff Allyson Wallace (the “Plaintiff”) initiated this

action on February 9, 2018 with the filing of a complaint (the

“Complaint”), to which Plaintiff attached voluminous exhibits.

[Dkt. No. 1]. Also attached to the Complaint is an application

to proceed in forma pauperis (“IFP”). [Dkt. No. 1-7]. Based on

Plaintiff’s affidavit of indigence, the Court will grant her

application pursuant to 28 U.S.C. § 1915(a) and order the Clerk

of the Court to open this matter and file the Complaint.

At this time, because Plaintiff is proceeding IFP, the

Court must preliminarily screen the Complaint, and must dismiss

if the Complaint is frivolous or malicious, fails to state a

claim upon which relief can be granted, or seeks monetary relief

from a defendant who is immune from such relief. 28 U.S.C.

On February 9, 2018, Plaintiff filed the Complaint against

Ideavillage Products Corp. (“Ideavillage”); Kevin J. O’Connor

(“O’Connor”); and Lum, Drasco and Positan LLC (“LDP” and

collectively, the “Defendants”). Plaintiff alleges that

Ideavillage has infringed Plaintiff’s design patent on the “Body

Washing Brush,” Patent No. 485,990 (the “Patent”). (Compl. at

This is not the first time Plaintiff has sued Ideavillage

in this district for alleged infringement of the Patent. 1 In

Wallace v. Spin Spa, Civ. No. 06-5673 (JAD), Plaintiff filed a

complaint on November 27, 2006 alleging that “Spin Spa, Inc.”

of the allegedly infringing product, whose manufacturer was

Ideavillage. [See 06-5673, Dkt. No. 16-2 at 1]. On March 28,

2011, the court granted Plaintiff leave to amend her complaint

Plaintiff filed an amended complaint naming Ideavillage as the

1 Under Fed. R. Evid. 201(b)(2), this Court may

defendant and alleging one count of patent infringement. [Id. at

Dkt. No. 26, 27].

On November 16, 2012, the parties consented to the

jurisdiction of United States Magistrate Judge Joseph A.

Dickson, and the case was reassigned to Judge Dickson. On

December 11, 2013, Ideavillage filed a motion for summary

judgement. [Id. at Dkt. No. 61]. Judge Dickson granted

Ideavillage’s motion on September 15, 2014, dismissing

Plaintiff’s entire case with prejudice. See Wallace v.

Ideavillage Prod. Corp., No. 06-CV-5673-JAD, 2014 WL 4637216, at

*1 (D.N.J. Sept. 15, 2014). This decision was based on the

court’s recognition of “manifest differences in the overall

appearance” of the Patent and the allegedly infringing

Ideavillage product and its finding that “[Plaintiff] cannot, as

a matter of law, prove that the designs appear substantially the

reasonable ordinary observer, familiar with the prior art, would

be deceived into believing the I[deavillage] [p]roduct is the

same as the design depicted in the” Patent. Wallace, 2014 WL

4637216 at *5; see Egyptian Goddess, 543 F.3d. at 676.

Plaintiff appealed the court’s grant of summary judgment

for Ideavillage, and the Federal Circuit affirmed on March 3,

2016. See Wallace v. Ideavillage Prod. Corp., 640 F. App'x 970

(Fed. Cir. 2016).

II. Legal Standard

As stated above, pursuant to 28 U.S.C. § 1915(e)(2), the

Court must preliminarily screen IFP filings, and must dismiss