Opinion
CASE NO. 2:10-CV-601-WKW.
October 12, 2010
ORDER
On September 22, 2010, the Magistrate Judge filed a Report and Recommendation in this case. (Doc. # 4.) On October 6, 2010, Plaintiff William E. Bowhall filed a Request to Proceed — In Pro-Se, which after review, the court construes as an objection. (Doc. #5.) The court has conducted a de novo review of those portions of the Report and Recommendation to which objection is made. See 28 U.S.C. § 636(b)(1).
In Plaintiff's largely incoherent objection, the court distills one pithy argument, "[w]hen does the statute of limitations begin and when does it end?" (Doc. # 5, at 5.) Plaintiff answered the first inquiry in the Complaint, and the Magistrate Judge answered the latter inquiry in the Report and Recommendation. By alleging in the Complaint that Johnson Johnson began national television advertising of the Reach toothbrush in 1979-80, Plaintiff leaves no doubt that all of his claims accrued no later than 1980, thirty years ago. (Doc. # 1, at 2.) Plaintiff presented no arguments sufficient to toll the statute of limitations. As the Magistrate Judge explained in detail, Plaintiff cannot escape the fact that his thirty-year-old claims are time barred under even the most generous construal of his legal theories. (Doc. # 4, at 5-10.) Likewise, Plaintiff's ignorance of law arguments do nothing to dust the cobwebs off a long dead statute of limitations clock. (Doc. # 5, at 4-5.) Finally, Plaintiff's claim that he did not discover the toothbrush design fraud until a December 2009 visit to Lowe's Home Improvement raises more concerns about Plaintiff's credibility than it does about Lowe's foray into the toothbrush market. (Doc. # 5, at 3.)
Plaintiff alleges he was fourteen years old in 1975 when he presented the design for the Reach toothbrush to his teacher, Mr. Powelson, and Johnson Johnson representatives. (Doc. # 1, at 1-2; Doc. # 5, at 3-5.) Thus, Plaintiff was at least nineteen years old in 1980, obviating any inquiry into tolling of the statute of limitations due to his minority in 1975. (Doc. # 5, at 3, 5); Ala. Code § 26-1-1 (1975) ("Any person in this state, at the arrival at the age of 19 years, shall be relieved of his or her disabilities of minority."); Mich. Comp. Laws § 722.52 (2002) ("[A] person who is at least 18 years of age on or after January 1, 1972, is an adult of legal age for all purposes whatsoever.").
On the anti-trust claim, Plaintiff has not alleged sufficient facts for tolling of the statute of limitations on the basis of a "continuing antitrust violation." Morton's Market, Inc. v. Gustafson's Dairy, Inc., 198 F.3d 823, 827-28 (11th Cir. 1999).
Accordingly, it is ORDERED as follows:
1. Plaintiff's objection (Doc. # 5) is OVERRULED.
2. The Magistrate Judge's Report and Recommendation (Doc. # 4) is ADOPTED.
3. Plaintiff's motion to proceed in forma pauperis (Doc. # 2) is GRANTED.
4. Plaintiff's claims against Defendants are DISMISSED without prejudice prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). An appropriate final judgment will be entered.
DONE this 12th day of October, 2010.