FROM THE ALOTT5MA ACCESS TO JUSTICE FILES: Every person, of course, deserves his or her day in court ... but first you have to survive Fed. R. Civ. P. 12(b)(6) (or its state-law equivalent) to demonstrate you've stated a claim upon which relief can be granted.
Meet Hubert Blackman, a college student from New York City, who on December 17, 2010 at 6:50 pm sought to experience the heights of Las Vegas private entertainment as only one can at the Stratosphere Hotel. He arranged with a local business to have a woman visit him to perform a dance for $155 and, for an extra $120, a sex act. As his pro se federal complaint alleges (thank you, 28 U.S.C. § 1332) and his interview with the press spells out in further detail, the gravamen of the complaint is that he thought he had contracted for an hour's worth of services, but the woman left after a half hour.
Blackman called the local business to demand a refund; they said no despite his protests that he was incapable of entering into an informed agreement on account of drunkitude. He then called the police; they explained to him that what he did remained illegal in Clark County and suggested he call the Better Business Bureau. He, instead, filed the complaint alleging "I just need medical treatment on mental condition: psycotic disorder" because "A excort had did an illegal sex act on me during her paid service to me [and] the excort had broke the law," and in his prayer for relief sought as follows: "I would like the court to close the business. I also would like to get my $275 payment back and a $1.8 million verdict for the tragic event that happened."
Others here, no doubt, can comment on the possibility for class action relief with regards to such complaints and the propriety of coupon settlements thereof; many here can criticize the grammar and spelling. I just want to know what kind of person is smart enough to file a federal complaint (faster process, if less plaintiff-friendly), but dumb enough to talk to the press about this one. (That said, isn't it worth it for the defendant to refund the money rather than defend this case?)
1) You don't have to be that smart to file a federal complaint. As Hubert's paperwork shows, the SDNY makes it very easy. And he could be in federal court by a 50-50 chance that that was the first courthouse he saw or because the state court pro se clerk sent him to the federal courthouse. (Personally speaking, my one time without adult supervision, I was almost late for my SDNY hearing because I confused the state courthouse for the federal one, a fact that Above the Law posters jeered me for.)
ReplyDelete2) The defendant may not have to defend anything. Who has $275 to pay for a stripper in Las Vegas, but qualifies for in forma pauperis? I would expect the IFP motion (which was not properly filled out) will be denied, and then Hubert has to decide whether to pay the filing fee.
3) I'm hoping this doesn't cross the political line, because I don't think the target of this joke is a materially meaningful political figure, but doesn't Hubert remind you of a certain South Carolina Senate candidate? I'm looking at you, Jim DeMint.
As a South Carolinian, that was the first thing I thought of!
ReplyDeleteIs Las Vegas Exclusive Personals subject to personal jurisdiction in the Southern District of New York? I expect not, as their business operations are, I suspect, confined to the Las Vegas area, and while legal in at least some portions of Nevada, are illegal in Nevada. Perhaps Blackman can argue that LVEP operates a website which NY residents can book services for when they visit Nevada, but that may not be enough to be subject to jurisdiction, so dismissed under 12(b)(2).
ReplyDeleteThis kid is going to be a total gunner in law school, I can tell.
ReplyDeleteI'm not sure that political figure can accurately be described as "materially meaningful."
ReplyDeleteAlso, as long as we're talking about the propriety of coupon settlements (and I view that remark as directed at me), how about some pop-culture love for the brief I filed yesterday in the N.D. Cal.?
ReplyDeleteAlso, Las Vegas Exclusive Personals doesn't appear to be the name of the business, so there's going to be noone to serve.
ReplyDeleteWas the contract for the lap dance and sex act, or was it for an hour of time, or both? There does seem to be an unresolved legal question as to whether the "hour" is a floor or a ceiling? I suspect the latter, so he received the benefit of the bargain. What's more, this guy seems to be trying to get a windfall. You can't put the toothpaste back in the tube, as it were.
ReplyDeleteIf punitive damages aren't available as a matter of law, as I suspect they aren't, I don't think he meets the monetary threshold for diversity jurisdiction. (There may be a "public policy" element to all of this, but our plaintiff is almost certainly not entitled to them as a willing participant in an illegal act.)
I don't know anything about the law, but from a practical standpoint, what did he expect to happen in the second half hour?
ReplyDeleteI assume you mean, "are illegal in New York." Yeah, I didn't think about the service issue or personal jurisdiction. <span> </span>
ReplyDeleteCuddling?
ReplyDeleteThey're not purposefully availing themselves of New York law so as to have sufficient minimum contacts with the state. They're targeting their actions at people who might be citizens of other states, but who are at that moment in Nevada. So yeah, I think to subject Las Vegas Exclusive Personals to personal jurisdiction in New York would offend traditional notions of fair play and justice.
ReplyDeleteOn another note, I will graduate in May from law school remembering a grand total of two cases--International Shoe and Erie Railroad.
Another thing--I would argue that diversity jurisdiction would be defeated here because the amount in controversy is not $1.8 million, but $275. That is, of course, significantly less than $75,000. He's not alleging that the $1.8 million would cover emotional damages or pain and suffering, just that he's entitled to it on top of the $275.
ReplyDeleteBut yes, it probably would cost the escort service less to refund his money than it would to go to court and point that out. And this is one of the reasons why people hate lawyers, even pro se ones.
Correct. I am no expert on this subject, but as I understand, the services would be illegal in all of New York and in the county of Nevada where they were purportedly provided.
ReplyDeleteTaking his argument at his word, there were really two separate contracts. $155 for an hour of stripper services, and $120 for a "sex act." If he's deprived the 1/2 of the $155, his damages are really only $77.50. This assumes there's even a triable issue of fact whether he bargained for the second half-hour. There's circumstantial (and possibly forensic) evidence that there was a meeting of the minds (among other things) that the young lady performed entirely as requested. Anyway, if he was the one who finished too soon, might that be 'anticipatory breach?"
ReplyDelete"<span>The number listed in Blackman's lawsuit is used by Hillsboro Enterprises, which says it's been licensed for 17 years and provides adult dancers on a subcontractor outcall basis."</span>
ReplyDeleteSo, the escort engaged in a "frolic of her own?"
Keep in mind Hubert is seeking injunctive relief that likely has a worth more than $75,000, even if you entirely discount his apparent claim of emotional distress.
ReplyDelete<span>Keep in mind Hubert is seeking injunctive relief that likely has a worth more than $75,000, even if you entirely discount his apparent claim of emotional distress.</span>
ReplyDeleteI don't remember much from law school and I strictly do criminal defense work, but isn't there something about how he has to go into the contract with clean hands as well? Since he was contracting for an illegal service, isn't this whole suit invalid?
ReplyDeleteThe theory of the claim is that he was not a voluntary participant (because he was too drunk to competently contract), and suffered emotional damages from the illegal and "tragic" act. Like, say, Buck Turgidson.
ReplyDeleteThe real question is why he isn't suing in Nevada, where judges permit juries to award $500 million against a defendant because a doctor illegally reused a needle to inject the defendant's product and caused hepatitis, and the defendant is forbidden from telling the jury that the label that "caused" the doctor to deliberately act illegally was approved by the federal government -- or from telling the jury that the doctor's reuse of needles was illegal and part of the doctor's business plan. Then he might have half a shot.
If he was not too drunk for "accord and satisfaction," there's a good chance he could competently contract. He couldn't make good decisions, but he could still make decisions.
ReplyDeleteBut that suggests a whole other theory of the case: what if the tragic event that happened was that after a half-hour of dancing and the unknown sex act, the subcontractor decided that Blackman was too drunk to be satisfied and left? So now we're talking about a humiliated guy who couldn't even score with someone he was paying ...
ReplyDelete"Subcontractor," huh? I wonder who wants to bring the class action for wage-hour violations.
ReplyDeleteInteresting 2004 story on the industry: http://www.lasvegascitylife.com/articles/2004/03/17/cover_story/cover.txt
ReplyDeleteEven then they were charging $275/hour for the woman to show up to the room, of which the company kept $235 (!); they say the dancer works for "tips." (Or, as Archer says, "Just the tip?")