17-3270-cv
Adams v. Netflix, Inc.

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of June, two thousand eighteen.

PRESENT:            JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                    SUSAN L. CARNEY,
                                 Circuit Judges.


BOBBIE LEE ADAMS, III,

                           Plaintiff-Appellant,

                           v.                                        17-3270-cv

NETFLIX, INC.,

                           Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                                 Bobbie Lee Adams, III, pro se, Norwich,
                                                         CT.

FOR DEFENDANT-APPELLEE:                                  Tonia Ouellette Klausner, Wilson Sonsini
                                                         Goodrich & Rosati, P.C., New York, NY.

        Appeal from a judgment of the United States District Court for the District of Connecticut
(Stefan R. Underhill, Judge).




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       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the November 3, 2017 judgment of the District Court be
and hereby is AFFIRMED.

        Plaintiff-appellant Bobbie Lee Adams, III, proceeding pro se, appeals from a November 3,
2017 judgment in favor of Netflix, Inc. (“Netflix”). Adams alleged that Netflix violated various
provisions of the United States Constitution and the United States Code by continuing to charge
him for its streaming service after he had cancelled it. He claimed $75,020.16 in damages: $20.16 for
the subscription fee, $50,000 for pain and suffering, and $25,000 in punitive damages. The
magistrate judge recommended that the District Court sua sponte dismiss the action under 28 U.S.C.
§ 1915(e)(2)(B)1 for lack of subject matter jurisdiction. The District Court adopted the
recommendation over Adams’s objections. This appeal followed. We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.

         We review de novo a district court’s sua sponte dismissal of a complaint under 28 U.S.C.
§ 1915(e)(2)(B). Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015). We afford a pro se litigant
“special solicitude” and interpret the complaint “to raise the strongest claims that it suggests.” Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks and alterations omitted).
Although a district court should typically refrain from dismissing a pro se complaint without
permitting at least one opportunity to amend, it may deny leave to amend when amendment would
be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

        Upon review, we conclude that Adams failed to plead facts sufficient to establish either
federal question or diversity jurisdiction, and therefore affirm the District Court’s judgment.

        Adams’s claims “fail[ ] to raise a colorable federal question” because they are “foreclosed by
Supreme Court [and] Second Circuit precedent.” Gallego v. Northland Grp. Inc., 814 F.3d 123, 128 (2d
Cir. 2016); see also Bailey Patterson, 369 U.S. 31, 33 (1962) (holding that federal question jurisdiction
does not exist when the claim is “wholly insubstantial, legally speaking nonexistent”). He argues that
federal question jurisdiction exists because Netflix justified its purportedly fraudulent scheme by
invoking a federal statute. But it is well established that a federal defense does not give rise to federal
question jurisdiction. See, e.g., Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 271 (2d Cir. 2005) (“[A]


    1
        28 U.S.C. § 1915(e)(2)(B) provides, in relevant part:
    [T]he court shall dismiss the case at any time if the court determines that . . .
          (B) the action or appeal--
              (i) is frivolous or malicious; [or]
              (ii) fails to state a claim on which relief may be granted . . . .

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plaintiff may not create federal subject-matter jurisdiction by alleging in his complaint that the
defendant’s (anticipated) federal defense should fail.”). Nor can Adams establish federal question
jurisdiction by citing the United States Constitution. Netflix is not a state actor, and Adams did not
allege that Netflix engaged in anything resembling state action. See Cranley v. Nat’l Life Ins. Co. of
Vermont, 318 F.3d 105, 111 (2d Cir. 2003) (“[A] litigant claiming that his constitutional rights have
been violated must first establish that the challenged conduct constitutes ‘state action.’” (internal
quotation marks omitted)).

         Adams’s attempt to establish diversity jurisdiction fares no better. He contends that he
satisfied the amount-in-controversy requirement of 28 U.S.C. § 1332(a)2 because he alleged
$75,020.16 in damages: $20.16 for the non-refunded subscription fee, $50,000 for the pain and
suffering he experienced, and $25,000 in punitive damages. Although “we recognize a rebuttable
presumption that the face of the complaint is a good faith representation of the actual amount in
controversy,” this presumption can be overcome when it is “a legal certainty” that the jurisdictional
threshold cannot be met. Scherer v. Equitable Life Assurance Soc’y of U.S., 347 F.3d 394, 397 (2d Cir.
2003) (internal quotation marks omitted). And it is overcome here: even if successful, Adams cannot
recover $25,000 in punitive damages because under Connecticut law common-law punitive damages
are limited “to litigation expenses, such as attorney’s fees,” Hylton v. Gunter, 97 A.3d 970, 978 (Conn.
2014), and Adams is proceeding pro se.

         Finally, although neither the magistrate judge nor the District Court addressed whether
Adams should have been given leave to amend, we conclude that leave to amend would have been
futile. See Cuoco, 222 F.3d at 112. Adams has failed to demonstrate any tenable basis for the District
Court to assume subject matter jurisdiction over his complaint.

                                          CONCLUSION

        We have reviewed all of the arguments raised by Adams on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the November 3, 2017 judgment of the
District Court.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




    2
      28 U.S.C. § 1332(a) provides, in relevant part, that “district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs,” and the parties exhibit diversity of citizenship.

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