D'Aquin v. eBay Inc. et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THOMAS L D’AQUIN CIVIL ACTION
VERSUS NO. 25-2115
EBAY, INC., ET AL. SECTION: “D” (1)
REPORT AND RECOMMENDATION
Pro se plaintiff Thomas L. d’Aquin has filed this lawsuit against eBay, Inc., and StockX,
Inc., originally asserting claims for products liability, consumer fraud/unfair and deceptive trade
practices, and civil claims under the Racketeer Influenced and Corrupt Organizations Act (RICO).
He also purported to assert a class action. In his amended complaint he no longer raises a RICO or
class action claim. Because there is no basis for federal jurisdiction over his claims, it is
RECOMMENDED that this lawsuit be DISMISSED for lack of subject-matter jurisdiction under
28 U.S.C. § 1915(e)(2)(B).
Background
Mr. d’Aquin filed this lawsuit on October 8, 2025. He also filed a motion for leave to
proceed in forma pauperis. On October 28, 2025, the Court granted him leave to proceed in forma
pauperis, but ordered that summons be withheld and that Mr. d’Aquin show cause why his lawsuit
should not be dismissed for failure to state a claim upon which relief may be granted. Mr. d’Aquin
filed a response on December 19, 2025.1 He acknowledged that certain of the legal theories he
asserted in his original Complaint were not viable, and he requested leave to file his First Amended
Complaint to cure the deficiencies by pleading legally cognizable claims and setting forth concrete
factual allegations. The Court entered his First Amended Complaint.
1 Although he filed this response after the November 26, 2025, deadline, the Court will accept the filing.
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Mr. d’Aquin alleges that eBay operates an online marketplace and marketed goods to him
using the designation “Authenticity Guaranteed.” Rec. Doc. 8, at 2. He alleges that StockX
provided authentication services that he relied upon for secondary market purchases. Id. Between
approximately 2023 and 2024, Mr. d’Aquin purchased multiple pairs of athletic footwear through
eBay listings labeled “Authenticity Guaranteed.” Id. He alleges that eBay represented the items
bearing this designation as having been professionally verified as genuine and suitable for normal
consumer use. Id. Mr. d’Aquin relied on these representations. Id. He also purchased footwear
from StockX though its “authentication services,” which were marketed as ensuring authenticity
and quality. Id. Mr. d’Aquin alleges that after ordinary use, the footwear exhibited structural
defects, including abnormal sole deformation and instability. Id. As a result, he suffered chronic
skeletal pain, required medical attention, and incurred out-of-pocket losses. Id.
In his First Amended Complaint, Mr. d’Aquin asserts the following claims: violation of
the Louisiana Unfair Trade Practices Act against both defendants for engaging in unfair or
deceptive marketing practices; breach of express warranty against eBay; negligent
misrepresentation as to both defendants; and, in the alternative, unjust enrichment because the
defendants were unjustly enriched from the transactions plead.
Although Mr. d’Aquin’s First Amended Complaint provides more factual allegations than
his original Complaint, he no longer purports to assert any claims under federal law. The Court
now considers whether it has jurisdiction over Mr. d’Aquin’s claims.
Law and Analysis
There exists no absolute right to proceed in forma pauperis in federal civil matters; instead,
it is a privilege extended to those unable to pay filing fees when it is apparent that the claims do
not lack merit on their face. See Startii v. United States, 415 F.2d 1115, 1116 (5th Cir.1969); see
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also Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (noting that the revocation of the
privilege of proceeding in forma pauperis is not new).
28 U.S.C. § 1915(e)(2)(B) provides for summary dismissal sua sponte, should the Court
determine that a case is frivolous. Section 1915(e)(2)(B) provides in pertinent part as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that –
* * *
(B) the action or appeal –
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2)(B)(i)-(iii) (emphasis added). “[A] complaint fails to state a claim upon
which relief may be granted when it does not contain ‘sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.’” Rogers v. Boatright, 709 F.3d 403, 407 (5th
Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A complaint is frivolous “if it
lacks an arguable basis in law or fact.” Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994).
Furthermore, federal courts are courts of limited jurisdiction. “Subject matter jurisdiction
may not be waived, and the district court ‘shall dismiss the action’ whenever ‘it appears by
suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter.’” Avitts
v. Amoco Prod. Co., 53 F.3d 690, 693 (5th Cir.1995) (quoting Fed. R. Civ. P. 12(h)(3)).
In his original Complaint, Mr. d’Aquin invoked this Court’s federal question jurisdiction
under 28 U.S.C. § 1331 as a result of his claim under RICO, 18 U.S.C. §1964(c). In his First
Amended Complaint, he no longer purports to assert a RICO claim.2 Because there is no other
2 The undersigned’s Show Cause Order had observed that it appeared Mr. d’Aquin had not alleged facts sufficient to
support a claim for a RICO violation. Rec. Doc. 4.
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possible basis for federal jurisdiction, the Court considers whether it has diversity jurisdiction over
Mr. d’Aquin’s First Amended Complaint under 28 U.S.C. § 1332.
This Court has jurisdiction to consider state law claims where the complaint satisfies the
requirements of 28 U.S.C. § 1332. In order for the Court to exercise diversity jurisdiction under
28 U.S.C. § 1332, the citizenship of all of the plaintiffs must be different from the citizenship of
the defendants and the amount in controversy must be in excess of $75,000. 28 U.S.C. § 1332;
see Getty Oil Corp., Div. of Texaco, Inc. v. Ins. Co. of North Am., 841 F.2d 1254, 1258-59 (5th
Cir. 1988). The amount in controversy is determined by consideration of the complaint itself.
Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353 (1961). “[T]he party invoking federal
jurisdiction must prove by a preponderance of the evidence that the amount in controversy exceeds
the jurisdictional amount.” St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.
1998).
While it appears that Mr. d’Aquin and defendants eBay and StockX are completely diverse,
it does not appear from the complaint that more than $75,000 is in controversy. Neither Mr.
d’Aquin’s original Complaint nor his First Amended Complaint demand a specific amount of
damages. Mr. d’Aquin’s damages may involve compensation for the amounts he spent on multiple
pairs of athletic shoes along with damages for the chronic skeletal pain he claims has resulted from
wearing the shoes. Although he references “medical attention,” there is no reason to believe that
his medical expenses and any non-economic damages (for pain and suffering) would exceed
$75,000. There is no indication from the allegations in the First Amended Complaint that the
Attorney General had put the defendants on notice of a claim of unfair or deceptive trade practices
such that treble damages under the Louisiana Unfair Trade Practices Act, La. Stat. Ann. §
51:1409(A), might be triggered. Because the facts alleged by Mr. d’Aquin in his First Amended
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Complaint do not establish an amount in controversy exceeding $75,000, this Court does not have
diversity jurisdiction over his claims under 28 U.S.C. § 1332.
The Court therefore finds it lacks subject matter jurisdiction over Mr. Jackson’s First
Amended Complaint. Accordingly,
IT IS RECOMMENDED that this lawsuit be DISMISSED for lack of subject-matter
jurisdiction, without prejudice to the filing of Mr. d’Aquin’s claims in the appropriate state forum.
NOTICE OF RIGHT TO OBJECT
Objections must be: (1) specific, (2) in writing, and (3) served within fourteen (14) days
after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 1(a), 6(b) and
72(b). A party's failure to object bars that party from: (1) entitlement to de novo review by a district
judge; and (2) appellate review of the un-objected-to factual findings and legal conclusions
accepted by the district court, except upon grounds of plain error. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
New Orleans, Louisiana, this ___ day of January, 2026.
Janis van Meerveld
United States Magistrate Judge
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