Byvalets v. Cornerstone Group Management

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MARKO BYVALETS,

Plaintiff, MEMORANDUM AND ORDER

22-CV-5010 (ENV) (LB)

-against-

CORNERSTONE GROUP MANAGEMENT;

1053 OWNERS CORPORATION,

Defendants.

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ERIC N. VITALIANO, United States District Judge:

Plaintiff Marko Byvalets brings this pro se action invoking the court’s federal question

jurisdiction under 28 U.S.C. § 1331. Plaintiff has paid the required filing fee. For the reasons

discussed below, the amended complaint is dismissed for lack of subject matter jurisdiction.

STANDARD OF REVIEW

At the pleadings stage of the proceeding, the Court must assume the truth of “all well-

pleaded, nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch Petroleum

Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A

complaint must plead sufficient facts to “state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is axiomatic that pro se complaints are held

to less stringent standards than pleadings drafted by attorneys, and the Court is required to read

the plaintiff's pro se complaint liberally and interpret it as raising the strongest arguments it

suggests. Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed

Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191–93 (2d Cir. 2008).

Regardless of whether a plaintiff has paid the filing fee, a district court has the inherent

power to dismiss a case, sua sponte, if it determines that the action is frivolous or the court lacks

jurisdiction over the matter. Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362,

363–64 (2d Cir. 2000). Lack of subject matter jurisdiction cannot be waived and may be raised

at any time by a party or by the court sua sponte. See Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 434 (2011) (“[F]ederal courts have an independent obligation to ensure that they

do not exceed the scope of their jurisdiction, and therefore they must raise and decide

jurisdictional questions that the parties either overlook or elect not to press.”). If a court lacks

subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. Pro. 12(h)(3); Arbaugh v. Y &

H Corp., 546 U.S. 500, 514 (2006); Durant, Nichols, Houston, Hodgson & Cortese–Costa, P.C.

v. Dupont, 565 F.3d 56, 62–63 (2d Cir. 2009).

BACKGROUND

Plaintiff Marko Byvalets, a citizen of Brooklyn, New York, brings this pro se action

against Cornerstone Group Management and 1053 Owners Corporation, both located in

Brooklyn, alleging that his constitutional rights have been violated because, five years ago,

defendants installed a video camera on the 4th floor of his apartment building. Am. Compl. at 2–

3. Plaintiff seeks $90,000 in damages and for the removal of the camera. Id. at 12. Plaintiff also

references federal criminal statues 18 U.S.C. §§ 241 and 242. Id. at 1, 11–12.

DISCUSSION

Federal Court Jurisdiction

Federal courts are courts of limited jurisdiction and may not hear cases if they lack

subject matter jurisdiction over the issues presented. Lyndonville Sav. Bank & Tr. Co., 211 F.3d

at 700–01 (2d Cir. 2000). “In 28 U.S.C. §§ 1331 and 1332(a), Congress granted federal courts

jurisdiction over two general types of cases: cases that ‘aris[e] under’ federal law, § 1331, and

cases in which the amount in controversy exceeds $75,000 and there is diversity of citizenship

among the parties, § 1332(a).” Home Depot U.S.A., Inc. v. Jackson, 587 U.S. ---, ---, 139 S. Ct.

1743, 1746 (May 28, 2019). The plaintiff bears the burden of establishing either type of subject

matter jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

Federal question jurisdiction exists where a plaintiff’s cause of action is based on a

violation of federal law or where “the well-pleaded complaint necessarily depends on resolution

of a substantial question of federal law.” Bracey v. Board of Educ. of City of Bridgeport, 368

F.3d 108, 113 (2d Cir. 2004) (internal quotation marks omitted). Here, Plaintiff’s allegation that

defendants unlawfully installed a video camera in the hallway of his apartment building does not

provide a basis for this Court’s subject matter under 28 U.S.C. § 1331.1

Diversity jurisdiction is also lacking in this action. Under the diversity jurisdiction

statute, federal courts have subject matter jurisdiction over state law claims where all plaintiffs

and all defendants are of diverse citizenship and “the matter in controversy exceeds the sum or

value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a); see also Bartlett v.

Honeywell Int’l Inc., 737 F. App’x 543, 547 (2d Cir. 2018) (“Diversity jurisdiction is present

when there is complete diversity between the parties . . . .” (citing 28 U.S.C. § 1332(a))); Pa.

Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 117–18 (2d Cir. 2014)

(“Subject matter jurisdiction is based on 28 U.S.C. § 1332, which requires ‘complete diversity,’

i.e.[,] all plaintiffs must be citizens of states diverse from those of all defendants.”); Bayerische

Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 48 (2d Cir. 2012).

1 To the extent Plaintiff’s claim could be construed under 42 U.S.C. § 1983, Plaintiff is advised that under section

1983, individuals may bring a private cause of action against persons “acting under color of state law” to recover

money damages for deprivations of their federal or constitutional rights. Matusick v. Erie Cty. Water Auth., 757

F.3d 31, 55 (2d Cir. 2014) (quoting 42 U.S.C. § 1983). To establish a viable section 1983 claim, Plaintiff must

show “the violation of a right secured by the Constitution and laws of the United States” and that “the alleged

deprivation was committed by a person acting under color of state law.” Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72, 87–88 (2d Cir. 2015) (citations and internal quotation marks omitted). Plaintiff does not set forth any

facts to suggest that defendants are state actors or acted in concert with any state actor.

Plaintiff fails to establish that this Court has diversity jurisdiction over this action because his

citizenship is the same as defendants. See Am. Compl. at 2.

Criminal Statutes

To the extent Plaintiff seeks to bring this action under federal criminal statutes 18 U.S.C.

§§ 241, 242, private citizens such as Plaintiff do not have a constitutional right to bring a

criminal proceeding. See Leeke v. Timmerman, 454 U.S. 83, 86 (1981) (per curiam) (“[A] private

citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another . . .

.") (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)); see also El Bey v. Dogdig, No.

22-CV-0091, 2022 WL 784035, at *2 (S.D.N.Y. Mar. 15, 2022) (a plaintiff cannot initiate a

criminal proceeding).

The Court declines to exercise supplemental jurisdiction over any potential state law

claims. See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c)

of § 1367 confirms the discretionary nature of supplemental jurisdiction.”) (internal quotations

and citation omitted).

CONCLUSION

Accordingly, Plaintiff’s amended complaint is dismissed without prejudice for lack of

subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). The Clerk of Court is directed to enter

judgment and close this case.

In light of its duty to liberally construe pro se complaints, the Court has considered

whether to grant Plaintiff leave to once again amend his complaint but finds that amendment

would be futile. See Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 124–25 (2d Cir.

2011). Although Plaintiff paid the filing fee to bring the action, the Court certifies pursuant to 28

U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma

pauperis status is denied for purpose of an appeal. Coppedge v. United States, 269 U.S. 438,

444–45 (1962).

The Clerk of the Court is further directed to mail a copy of this Memorandum and Order

to Plaintiff and to note the mailing on the docket.

So Ordered.

____/s/ Eric N. Vitaliano_______________

ERIC N. VITALIANO

United States District Judge

Dated: Brooklyn, New York

September 30, 2022