NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-2444
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ROSS A. FIORANI,
Appellant,
v.
HEWLETT PACKARD CORP.; FRANCESCA
RUDE; FRANCESCA DOUGHERTY; GINGER
BORG; LYNN BENSON; BONNIE CONNOLLY;
NANCY SCOLLON; STAPLES INC.
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On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 13-cv-00121)
District Judge: Honorable Richard G. Andrews
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Submitted Pursuant to Third Circuit LAR 34.1(a)
September 23, 2013
Before: SMITH, CHAGARES and SHWARTZ, Circuit Judges
(Opinion filed: September 26, 2013)
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OPINION
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PER CURIAM
Appellant Ross Fiorani appeals from an order of the District Court dismissing his in
forma pauperis complaint under 28 U.S.C. § 1915(e)(2)(B)(i). For the reasons that follow, we
will affirm.
Fiorani, a resident of Virginia, filed an in forma pauperis complaint in the United States
District Court for the District of Delaware against Hewlett Packard, a California corporation,
Staples, Inc., and certain individual defendants, alleging violations of several state and federal
consumer protection and racketeering laws in connection with his purchase of allegedly
defective laptop computers. Fiorani demanded money damages.
The District Court granted Fiorani’s in forma pauperis application, and, in an order
entered on April 29, 2013, dismissed the complaint as malicious under 28 U.S.C. §
1915(e)(2)(B)(i). The court reasoned that Fiorani has engaged in the practice of filing
frivolous lawsuits in the federal courts, see Fiorani v. Chrysler-Dodge Corp., 2011 WL
1085034 (E.D. Va. March 18, 2011), and has even been enjoined by one court from filing
actions without leave of court, see id. at *1. In addition, he had recently, in 2012, filed a nearly
identical action against Hewlett Packard and Staples in the United States District Court for the
Northern District of California, which remained pending, see Fiorani v. Hewlett-Packard, D.C.
Civ. No. 12-cv-01240. The District Court’s dismissal meant that Fiorani could not proceed
with his District of Delaware complaint without prepayment of the usual filing fees.
Fiorani appeals. We have jurisdiction under 28 U.S.C. § 1291. An impoverished
plaintiff may prosecute his case without prepayment of the filing fees, 28 U.S.C. § 1915(a)(1),
but the in forma pauperis statute provides that the District Court shall dismiss the action at any
time if the court determines that it is “frivolous or malicious,” 28 U.S.C. § 1915(e)(2)(B)(i).
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We review the District Court’s decision to dismiss an in forma pauperis complaint as frivolous
or malicious for an abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992).
“A court that considers whether an action is malicious must, in accordance with the
definition of the term “malicious,” engage in 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 v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995).
Here, the District Court reasoned in part that Fiorani has a well-documented history of filing
frivolous lawsuits in the courts within the Fourth Circuit. The specific question presented,
however, is whether Fiorani was motivated by a desire to vex, injure, or harass the defendants,
and not whether he has abused the federal courts. See id.
In his brief on appeal, Fiorani challenges the District Court’s decision on two bases that
are unrelated to the issue of maliciousness. In any event, these arguments, including that
federal law prevents a District Court from dismissing, pursuant to the in forma pauperis statute,
an action like his which alleges that felonies were committed by agents of the defendants, see
Appellant’s Brief, at 3; and that a District Court, having determined that a litigant has met the
financial requirements of the in forma pauperis statute, may not then dismiss it as frivolous or
malicious, see id., are meritless. Moreover, we reject Fiorani’s baseless assertion that the
District Court was biased in his case. An adverse ruling by itself is not evidence of a court’s
bias. Cf. Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 278 (3d Cir. 2000)
(party’s displeasure with legal rulings does not form an adequate basis for recusal).
Fiorani also argues that his District of Delaware action against Hewlett Packard and
Staples was not malicious because he benefitted from a 2008 class action in California, but he
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has never received the compensation he was due, See Appellant’s Brief, at 4, 6. He asserts that
the District Court for the Northern District of California, where his other action is currently
pending, has improperly delayed disposition of his claims seeking compensation from the 2008
class action, see id. at 7, and he suggests that this is why he turned to the District of Delaware,
see id. at 8, 14, 17-18. We have carefully reviewed Fiorani’s District of Delaware complaint,
and, although he made reference to the 2008 California class action at ¶ 50, and later filed a
copy of the class action complaint as an exhibit, see Docket Entry No. 6, he never once
asserted that he was turning to the District of Delaware because of unfair delay in the Northern
District of California; he did not even disclose the existence of the identical action in the
Northern District of California.
Accordingly, we are not persuaded by Fiorani’s arguments on appeal that the District
Court abused its discretion in determining that his motivation in filing the District of Delaware
action was to vex, injure, or harass the defendants, See Deutsch, 67 F.3d at 1086. Repetitive
litigation undoubtedly is some evidence of a litigant’s motivation to vex or harass a defendant
where it serves no legitimate purpose. The complaint before the District Court disclosed no
legitimate purpose for Fiorani’s District of Delaware action, given that there is an identical
action pending in the Northern District of California against the very same defendants.
For the foregoing reasons, we will affirm the order of the District Court dismissing
Fiorani’s compliant under the in forma pauperis statute.
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