This is a great example of why Court's dockets are so backed up. Smallwood v. NCSoft Corp., No 1:09-cv-00497 (D. HI, Aug. 4, 2010) Plaintiff sued an online game manufacturer on the grounds that he suffered emotional distress because he is now blocked from playing the game (after spending over 20,000 hours at it over the course of a few years). The plaintiff appeared pro se (despite actually having a lawyer assist him) and twice had his complaint dismissed for failure to state a claim on jurisdictional grounds because he didn't adequately plead jurisdiction and the elements of fraud. The Court (U.S. District Court, HI) has now issued its third opinion and only now dismissed some of the claims with prejudice. And this was no small opinion-- in it, the Court discussed the pleading standards for fraud, completed a conflict of law analysis between Texas and Hawaii law, analyzed the extent to which claims could be waived by contract, and then proceeded to look at the specific allegations the plaintiff made to see if they could reach the gross negligence standard needed to get around the limitations in the user agreement and therefore meet the jurisdictional requirement. The Court also included a discussion of the leniency afforded pro se litigants and then why, under the facts of this case, it was no longer affording the plaintiff that leniency.
Now the other claims (defamation/libel/slander, negligence, gross negligence, and negligent infliction of emotional distress) will proceed yet again. Interestingly, he really isn't claiming that the manufacturer should have warned against the addictive nature of the game, it seems more that he is arguing that the Company should have warned that he might not have access to the game forever. All his damages stem from his alleged "withdrawal" after no longer being able to play. I guess that means it is time for yet another warning in the user agreement.
Here is a link to the opinion.
And here is a link to the Above the Law commentary on the frivolous nature of Mr. Smallwood's claim.
