Kinsler v. Fay Servicing

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------- X

:

JUDITH COOPER KINSLER,

:

Plaintiff,

: MEMORANDUM DECISION AND

ORDER

– against – :

1:23-CV-5993 (AMD) (LB)

:

FAY SERVICING, HSBC BANK, KEY BANK,

CITIBANK N.A., STEVEN BAUM, and :

FRIEDMAN & VARTOLO LLP,

:

Defendants.

--------------------------------------------------------------- X

A NN M. DONNELLY, United States District Judge:

Before the Court is the pro se plaintiff’s complaint challenging a pending foreclosure

action in New York State Supreme Court, County of Queens. (ECF No. 1.)1

Although the plaintiff brings this action under 28 U.S.C. § 1331, the complaint does not

establish federal question jurisdiction. The plaintiff as serts only that “[t]he Judge in Queens

Supreme Court ruled on my case and Citi Bank and others involved were denied in its entirety in

Judge Jackman Browns ruling” (id. at 2) and that “my life has been made miserable I am asking

for relief an[d] to be compensated” (id. at 5). Accordingly, the complaint is dismissed without

prejudice.

LEGAL STANDARD

A complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

1 The plaintiff originally filed this action in the Southern District of New York. On August 1, 2023,

Chief Judge Laura Taylor Swain issued a sua sponte order transferring the case to this District.

defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.

2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all factual allegations

contained in the complaint are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678. In reviewing a pro se complaint, the court must be

mindful that the plaintiff’s pleadings should be held “to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.

2009) (noting that even after Twombly, courts “remain obligated to construe a pro se complaint

liberally”).

DISCUSSION

The plaintiff brings this action under the Court’s federal question jurisdiction, but her

complaint does not raise any colorable federal claim. 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.

Bd. of Educ. of City of Bridgeport, 368 F.3d 108, 113 (2d Cir. 2004) (internal quotation marks

omitted). Even reading the complaint liberally, “there are no facts suggesting the existence of a

federal claim.” Harris v. Giorgio, No. 19-CV-5714, 2019 WL 5742607, at *2 (E.D.N.Y. Nov. 5,

2019). The plaintiff does not cite any federal statute that would apply to her claim, nor can the

Court discern any federal cause of action from her complaint, even construing the complaint

liberally, as the Court must do for a pro se litigant. Further, the plaintiff does not plead facts

establishing the Court’s diversity jurisdiction. It appears that the plaintiff seeks merely to

overturn her foreclosure judgment in New York state court. Accordingly, the Court lacks subject

matter jurisdiction to hear this claim.

CONCLUSION

For these reasons, the pro se plaintiff’s complaint is dismissed without prejudice. The

plaintiff may amend her complaint within 30 days. If she decides to file an amended complaint,

the plaintiff must clearly state the legal and factual bases for her claims for each defendant and

specify why the federal court has jurisdiction. The plaintiff is advised that the amended

complaint will replace the original complaint, must be captioned “Amended Complaint,” and

must bear the same docket number as this Memorandum and Order: 1:23-CV-5993 (AMD) (LB).

For free, limited-scope legal assistance, the plaintiff may wish to consult the City Bar Justice

Center’s Federal Pro Se Legal Assistance Project in Brooklyn by calling (212) 382-4729. No

summons will issue at this time and all further proceedings are stayed for thirty days. If the

plaintiff does not amend within 30 days, the Court will enter judgment dismissing the case.

Although the plaintiff paid the filing fee to bring this action, the Court certifies pursuant

to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith.

Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

s/Ann M. Donnelly

___________________________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

August 28, 2023