# Gioia v. SouthEnd Psychiatry

> District Court, E.D. New York · April 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10311685

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10311685

## How later opinions describe it (automated extraction)

- noting that diversity is complete when the complaint “demonstrate[s] that [the plaintiff] does not share citizenship with any of the defendants.”
- noting that courts have an “independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte.”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Maria F. Gioia,

Plaintiff,

-v- 2:23-cv-08163
(NJC) (SIL)
Patterson, Belknap, Webb & Tyler,

Defendant.

Maria F. Gioia,

Plaintiff,

-v- 2:23-cv-08164
(NJC) (SIL)
SouthEnd Psychiatry,

Defendant.

Mariafrancesca Gioia,

Plaintiff,
2:24-cv-1912
-v- (NJC) (SIL)

Johnson and Johnson,

Defendant.

Maria F. Gioia,

Plaintiff, 2:24-cv-2259
(NJC) (SIL)
-v-

SouthEnd Psychiatry,

Defendant.
MEMORANDUM AND ORDER
NUSRAT J. CHOUDHURY, United States District Judge:
Plaintiff Maria F. Gioia (“Gioia”) has brought nine actions before this Court relating to
injuries that she allegedly sustained as a result of taking Invega, a drug manufactured by a
wholly-owned subsidiary of Defendant Johnson & Johnson (“J&J”) and prescribed to Gioia by

SouthEnd Psychiatry (“SEP”): Gioia v. Janssen Pharm., No. 2:2:19-cv-4629 (“Gioia I”) and
Gioia v. Janssen Pharm., No. 2:19-cv-5377 (“Gioia II”) (together the “2019 Actions”); Gioia v.
Janssen Pharm., No. 2:23-cv-1187 (“Gioia III”); Gioia v. SouthEnd Psychiatry, No. 2:23-cv-
1419 (“Gioia IV”); Gioia v. Patterson, Belknap, Webb, & Tyler, No. 2:23-cv-3353 (“Gioia V”);
Gioia v. Patterson, Belknap, Webb & Tyler, No. 2:23-cv-8163 (“Gioia VI”); Gioia v. SouthEnd
Psych., No. 2:23-cv-8164 (“Gioia VII”); Gioia v. Johnson & Johnson, No. 2:24-cv-1912 (“Gioia
VIII”); Gioia v. SouthEnd Psych., No. 2:24-cv-2259 (“Gioia IX”). This Court dismissed Gioia I–
II for failure to state a claim, Gioia III for failure to prosecute, and Gioia IV–V for lack of
subject matter jurisdiction. The four currently pending cases, Gioia VI–IX, duplicate the
allegations of the previously dismissed cases.

Before the Court are four pending items: (1) Gioia’s failure to respond to a November 7,
2023 order to show cause in Gioia VI and VII; (2) J&J’s letter requesting a pre-motion
conference (Gioia VIII, ECF No. 8); (3) Gioia’s motion to remand to state court (Gioia VIII,
ECF No. 10); and (4) Gioia’s motion to proceed in forma pauperis (“IFP”) (Gioia IX, ECF No.
2). For the following reasons, the Court finds that it lacks subject matter jurisdiction over Gioia
VI–IX. Accordingly, IFP is granted in Gioia IX, the complaints in Gioia VI, VII, and IX are
dismissed without prejudice pursuant to Fed. R. Civ. P. 12(h)(3), and leave to amend these

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complaints is denied. Pursuant to 28 U.S.C. § 1447(c), the complaint in Gioia VIII is remanded
to the New York State Supreme Court, Suffolk County. Gioia is warned that if any further
complaints regarding her allegations about Invega are filed in or removed to this Court, the Court
will order her to show cause why she should not be barred under 28 U.S.C. § 1651 from filing

new civil actions.
BACKGROUND

Given the litigation history between the parties in the state and federal courts, a brief
review is warranted.
I. The Prior Actions
A. The Court Dismisses Gioia I and II for Failure to State a Claim
In 2019, Gioia filed two complaints in the Supreme Court of the State of New York,
Nassau County against Janssen Pharmaceutical (“Janssen”) for injuries that Gioia allegedly
sustained after taking Invega, a drug manufactured by Janssen. (Gioia I, ECF No. 1-1; Gioia II,
ECF No. 1-1.)1 Janssen, represented by Patterson, Belknap, Webb & Tyler LLP (“PBWT”),
removed the 2019 Actions to this Court on the basis of diversity subject matter jurisdiction.
(Gioia I, ECF No. 1; Gioia II, ECF No. 1.) The parties then briefed Janssen’s motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) and on February 16, 2021, the Court dismissed Gioia’s

1 Gioia filed two motions in each case to remand these cases to state court and, upon denial of
her second round of motions, the Court warned Gioia that, should “she submit[] any further
frivolous filings concerning remand, the Court may sanction her by dismissing her claims with
prejudice.” (See Mem., Gioia I, ECF No. 39 at 3.)

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complaints in the 2019 Actions in one Memorandum and Order. (See Mem., Gioia I, ECF No.
39.)2
In the Memorandum and Order, the Court liberally construed Gioia’s “bare-boned”
complaints to allege lack of informed consent and failure to warn claims and granted Janssen’s

motion as to both claims. (Mem. at 2.) First, the Court dismissed Gioia’s lack of informed
consent claim against Janssen with prejudice because, under New York law, the duty to warn a
plaintiff directly of the potential risks or side effects of taking Invega lies with a plaintiff’s
physician, not the drug manufacturer. (Id. at 4–5.) Second, the Court dismissed Gioia’s failure to
warn claim without prejudice because Gioia failed “to allege any facts to suggest that her treating
physician was not informed of the risks associated with Invega” and because the FDA-approved
package insert described the very side effects of which Gioia complained. (Id. at 6–8.) In an
abundance of caution and in light of Gioia’s pro se status, the Court granted leave to amend the
failure to warn claim and explained that Gioia “must provide nonconclusory allegations as to
why defendant failed to provide adequate warnings to her physician.” (Id. at 8.)

Plaintiff filed an amended complaint in the 2019 Actions. (Gioia I, ECF No. 40; Gioia II,
ECF No. 33.) The parties briefed Janssen’s motions to dismiss the amended complaints and on
November 21, 2021, the Court issued a Memorandum and Order granting Janssen’s motions and
dismissing Gioia’s failure to warn claim with prejudice in both cases. (Mem., Gioia I, ECF No.
58.)3 The Court found that Gioia’s amended complaint failed to “cure the deficiencies of her
failure to warn claim because the amended allegations, like the original allegations, do not

2 The Court also filed the Memorandum and Order in Gioia II, ECF No. 32.
3 Also filed in Mem., Gioia II, ECF No. 49.

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identify what warnings were provided to plaintiff’s physician or how the provided warnings were
inadequate.” (Id. at 4.) And, because “nearly all of the alleged side effects [Gioia] experienced
are identified in Invega’s FDA-approved package insert,” the Court ruled that Gioia’s
“conclusory allegations coupled with [her] allegations of suffering from the very side effects of

which [Janssen] warns, requires dismissal of [Gioia]’s claim.” (Id. at 5–6.)
The Court also determined that further leave to amend would be futile in light of Gioia’s
failure to correct the deficiencies noted in the order dismissing her original complaints. (Id. at 6.)
Judgment was entered accordingly on November 23, 2021 in each case. (Gioia I, ECF No. 60;
Gioia II, ECF No. 51.) After receiving an extension of time to file an appeal, Gioia appealed to
the Second Circuit. (Gioia I, ECF Nos. 61–62, Elec. Order, Jan. 19, 2022; Gioia II, ECF Nos.
53–54, Elec. Order, Jan. 19, 2022.) The Circuit dismissed her appeal on August 5, 2022 “because
it lack[ed] an arguable basis in either law or fact.” (Mandate, Gioia I, ECF No. 63.)
B. The Court Dismisses Gioia III for Failure to Prosecute
Notwithstanding the dismissal of Gioia’s lack of informed consent and failure to warn
claims with prejudice, on February 13, 2023, Gioia filed another complaint against Janssen, this

time in the Supreme Court of the State of New York, Suffolk County. (Gioia III, ECF No. 1-1.)
Janssen removed Gioia III to this Court and requested a pre-motion conference in anticipation of
filing a motion to dismiss the complaint because it was identical to the 2019 Actions and
therefore barred by res judicata and collateral estoppel. (Gioia III, ECF Nos. 1, 11.) Janssen also
asserted that the Gioia III complaint lacked merit because the failure to warn claim did not allege
what warning her physicians received and how those warnings were inadequate. (Gioia III, ECF
No. 11-1 at 2–3.) Janssen also requested that the Court enter a litigation injunction given that

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Gioia had filed a third, repetitive lawsuit after her two prior complaints were dismissed on the
merits and that dismissal was affirmed on appeal. (Id. at 3.) Gioia responded by filing a letter
requesting that her complaint be withdrawn from this Court and claimed “bullying” from
Janssen’s lawyers. (Gioia III, ECF No. 18.)

At a conference before Magistrate Judge Locke, Janssen opposed Gioia’s request to
withdraw her Gioia III complaint and pressed for a litigation injunction because the case was
Gioia’s third attempt to pursue two previously-dismissed claims. (Gioia III, ECF No. 19.)
Magistrate Judge Locke deferred ruling on Gioia’s claim of unspecified “bullying,” explaining
that because “the Court takes such claims seriously, this conference is adjourned in order to give
Plaintiff another opportunity to explain the bases for her position sufficient that it be addressed
by the Court.” (Id.) Although Gioia was informed of the adjourned teleconference date, she did
not to appear. (Gioia III, ECF No. 24.) Accordingly, Magistrate Judge Locke stayed discovery in
Gioia III pending determination of Janssen’s request for a premotion conference and/or Gioia’s
motion to withdraw or remand her complaint. (Id.) On April 13, 2023, Janssen requested a

briefing schedule for its anticipated motion to dismiss and for entry of a filing injunction; Gioia
did not respond to that application. (Gioia III, ECF No. 25.)
Given this history and Gioia’s apparent intention to withdraw her complaint, the Court
ordered Gioia to show cause on or before October 12, 2023 why the complaint should not be
dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). (Gioia III, ECF No. 30.) The order
required Gioia to explain her failure to appear at conferences, to respond to Janssen’s pre-motion
conference letter, and to participate in the prosecution of the case. (Id.) The Court also required
Gioia to state whether she sought to withdraw the complaint. (Id.) The Court warned Gioia that

6
failure to timely respond to the order “will lead to the dismissal of her complaint with prejudice
pursuant to Federal Rule of Civil Procedure 41(b).” (Id.)
Gioia did not respond to the order to show cause, which was mailed to her address of
record and not returned as undeliverable. Accordingly, on November 16, 2023, the Court

dismissed the Gioia III complaint with prejudice for failure to prosecute under Fed. R. Civ. P.
41(b) and judgment was entered. (Gioia III, Elec. Order, Nov. 16, 2023; Judgment, Gioia III,
ECF No. 35.) Gioia did not appeal.
C. The Court Dismisses Gioia IV–V for Lack of Subject Matter Jurisdiction
On February 22, 2023, eight days after Gioia filed Gioia III, she filed a new complaint
and application to proceed in forma pauperis in this Court, this time against SEP. (Gioia IV, ECF
Nos. 1–2, 11.) Shortly thereafter, on May 1, 2023, Gioia filed another complaint and application
to proceed in forma pauperis naming PBWT, the law firm that represented Janssen in Gioia I–III.
(Gioia V, ECF Nos. 1–2.) The Court granted Gioia’s IFP applications in Gioia IV and V and, on
October 12, 2023, issued a Memorandum and Order dismissing both complaints sua sponte and
without prejudice for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3).

(Mem., Gioia IV, ECF No. 16.)4
Although these complaints, “like at least three of her prior complaints, relate to prior
litigation arising from alleged side effects of a prescription anti-psychotic medication,” the Court
did not reach issue of preclusion. (Mem. at 2.) Rather, the Court determined it lacked subject
matter jurisdiction under both 28 U.S.C. §§ 1331 and 1332. First, the Court found it lacked
federal question jurisdiction because Gioia’s claims against SEP for “medical malpractice” and

4 The Memorandum and Order was also filed in Gioia V as ECF No. 17.

7
“negligence” and “abuse of power” as well as her claims against PBWT for “abuse of power,
bullying, malpractice, denying my civil rights to a fair trial, negligence, failure to acknowledge
and realize facts and failure to do research; ignoring and bullying Pro Se Plaintiff; lying and
cheating for favoritism/easier channels; manhandling; changing course of plans as and when

convenient” did not arise under a federal law, treaty, or the Constitution of the United States.
(Mem. at 9–10.) Second, in an abundance of caution in light of Gioia’s pro se status, the Court
considered whether it had diversity jurisdiction and found that it did not because “the parties are
all domiciled in New York.”5 (Mem. at 10 (citing Advani Enters., Inc. v. Underwriters at Lloyds,
140 F.3d 157, 160 (2d Cir. 1998) (noting that diversity is complete when the complaint
“demonstrate[s] that [the plaintiff] does not share citizenship with any of the defendants.”)).)
Given Gioia’s pattern of filing repetitive lawsuits concerning the same subject matter, the Court
warned Gioia:
[F]uture, frivolous lawsuits arising from or relating to her prior litigation
involving Janssen Pharmaceutical will not be tolerated by the Court. In short,
given Plaintiff’s well-documented history of litigation in this Court, Plaintiff is
cautioned that sanctions may be imposed, including in the form of a litigation
injunction, should she continue in this course of conduct. Should Plaintiff file
another complaint arising from or relating to her prior litigation involving
Janssen Pharmaceutical, the Court will order Plaintiff to show cause why a
litigation bar should not be entered. Plaintiff is further warned that frivolous
complaints concerning any other subject matter may also result in the Court
ordering Plaintiff to show cause why a litigation bar should not be entered.

(Mem. at 12 (emphasis added).) Judgment was entered on October 18, 2023 in each case and
Gioia did not appeal in either case. (Gioia IV, ECF No. 16; Gioia V, ECF No. 18.)

5 The Court found that, at the time Gioia filed these complaints, she had alleged that she was a
citizen of New York and that SEP and PBWT were also citizens of New York. (See Mem. &
Order at 4, 10; see also Gioia V, Compl. ¶¶ II.B.1.a & 2.b.)

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II. The Pending Actions
A. Gioia VI Against PBWT and Gioia VII against SEP
Undeterred, Gioia filed four more complaints. On October 26, 2023, just eight days after
judgment was entered in Gioia IV and V, Gioia filed another complaint against PBWT (Gioia
VI, ECF No. 1) and another complaint against SEP (Gioia VII, ECF No. 1). Gioia filed

applications to proceed in forma pauperis in both actions. (Gioia VI, ECF No. 2; Gioia VII, ECF
No. 2.) On November 7, 2023, the Court ordered Gioia to show cause in both cases within thirty
days why “an order should not be entered barring the acceptance of any future filings from
Plaintiff related to Plaintiff’s litigation involving Janssen Pharmaceutical in this Court without
Plaintiff first obtaining leave of the Court.” (Gioia VI, Elec. Order, Nov. 7, 2023; Gioia VII,
Elec. Order, Nov. 7, 2023.) The orders to show cause was mailed to Gioia at her address of
record, 12311 Cornerstone Lane, Princeton, New Jersey 08540. (Gioia VI, Elec. Order, Nov. 8,
2023; Gioia VII, Elec. Order, Nov. 8, 2023.) These orders have not been returned to the Court as
undeliverable. To date, Gioia has not responded to the order to show cause in either case.
B. Gioia VIII Against J&J

On March 15, 2024, J&J removed to this Court a complaint filed by Gioia against it on
October 25, 2023,6 in the Supreme Court of the State of New York, Suffolk County, under Index
No. 6264459/2023. (Gioia VIII, ECF Nos. 1, 1-1.) Though difficult to decipher and comprehend,
Gioia appears to allege that J&J promoted:
a novel drug Invega without regards to patient population or FDA protocol of
post-approval recommendations and procedure of a post-clinical trial base of 10-
year [indecipherable] before such lax promotion. The pharmaceutical company
failed to warn about important side effect as well as the common outcome often

6 This was the day before Gioia filed her complaints in Gioia VI and Gioia VII in this Court.

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irreversible of subclinical hypothyroidism. The correlation of thyroid function on
scholastic performance has been solidifiedly [sic] accepted as pivitol [sic] on
aspects such as exam performance. While taking that medicine I was
unknowingly why or how producing unrepresentative academic performance even
if I studied and knew the material very well and it caused me to have to repeat my
USMLE Step 2 exam only to pass after multiple attempts even though that isn’t
the most difficult of exams and I studied for longer periods of time. Residency
programs inevidably [sic] rule out multiple attempt candidates most easily due to
the heavily competitive nature of the Residency Match Process. Hence, I did not
get into any Medical Residency Programs and had to terminate my lifelong goal
and career as a physician due to pharmaceutical company negligence to patient
population. FDA Post Approval Process and timeline as well as failure to warn
about important side effects as well as ultimate outcome of subclinical
hypothyroidism. In addition, while looking for a lawyer to pursue this case in July
2019 they pretended to be lawyers to update their database and website
Invega.com with my information and medical knowledge (M.D.) without consent
yet promised me $12–17 million in compensation for the losses, damage, and
information (medical M.D. & experience).

(State Ct. Rec. at 2–4, Gioia VIII, ECF No. 1-1.) In the space that calls for the damages suffered
as a result, Gioia wrote: “loss of career as a medical doctor + subclinical hypothyroidism + loss
of [indecipherable] neural stability and facial/body expressive self-stability and representation”
for which she seeks to recover a damages award in the sum of $16,999,999.00. (Id. at 5.)
On March 1, 2024, before Gioia VIII was removed to this Court, Gioia had filed an
amended complaint against J&J alleging that “Johnson and Johnson failed to warn about
important side effects and ultimate outcome of medication Invega while rapidly promoting it
during preliminary phased approval by FDA which normally takes 10 years.” (Id. at 34.) Gioia
alleges that the “failure to warn about important side effects as well as ultimate outcome of
subclinical hypothyroidism caused misrepresentation of my academic knowledge through
misrepresentation of exam scores which caused me to have multiple attempts at exact exams
while taking that medical while being disillusioned.” (Id.) In the space that calls for the elements
of the cause of action on the form complaint, Gioia wrote:

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Failure to warn about important side effects and ultimate outcome + widely,
quickly, and vastly promoting the novel drug + pretending to be lawyers in
07/2019 when they took my medical knowledge and information to update their
database and website Invega.com without my prior consent however while
promising me compensation as between 12–17 million hence me suing for
$16,999,999.00.

(Id. at 37.) This time, Gioia listed a Suffolk County address in East Patchogue on the amended
complaint. (Id. at 38.) Gioia also listed that address on all subsequent papers that she filed in the
state court, and those that were notarized show that she signed them in Suffolk County, New
York. (Id. at 43–52.)
On March 21, 2024, J&J, represented by PBWT, filed a letter motion requesting a
premotion conference in anticipation of a motion to dismiss the amended complaint and for the
entry of a filing injunction. (Gioia VIII, ECF No. 8.) In this pending letter motion, J&J argues
that Gioia has named J&J rather than its “wholly owned subsidiary” Jansen in an apparent effort
to bypass the Court’s “express warning not to bring any more cases against Janssen.” (Id.) On
March 22, 2024, the Court ordered Gioia to file a response to J&J’s letter by March 29, 2024.
(Gioia VIII, Elec. Order, Mar. 22, 2024.) To date, Gioia has not responded to J&J’s letter. The
Court’s order was mailed to Gioia at her address of record in New Jersey and has not been
returned to the Court as undeliverable. (Gioia VIII, Notice, Mar. 25, 2024.)
On April 1, 2024, Gioia filed a pending motion to remand Gioia VIII to the New York
State Supreme Court, Suffolk County. (Gioia VIII, ECF No. 10.) Gioia includes her New Jersey
and New York addresses (id. at 8) and asserts that she:
has residence in both NJ and NY. In fact, most of her correspondences with this
case even upon index number purchase were from/to the address where she lives
with her mom 12311 Cornerstone Lane Princeton, NJ. She filed in Suffolk
County Supreme Court because her fiancée lives there, she used to live there, she
works there part-time, and this is where she first started the case against Jansen

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[sic] in 2019 while living in Holbrook and then Ronkonkoma . . . .

(Id. at 2.) On April 11, 2024, J&J opposed the motion, arguing that there is diversity jurisdiction
because it is a New Jersey citizen and Gioia is a New York citizen as is evident from her
repeated assertions that she is a New York resident and various indicia of her intent to return
there. (Gioia VIII, ECF No. 12 at 3–5.) J&J also requests a filing injunction against Gioia. (Id. at
5.)
C. Gioia IX Against SEP
On March 22, 2024, Gioia filed another complaint against SEP along with an in forma
pauperis application. (Gioia IX, ECF Nos. 1–2.) Gioia alleges that, during the period December
10, 2022 through December 30, 2022, she was “assign[ed]”a “test consecutively for weeks”—

which she parenthetically explains was an “at home urine collection”— which “was wrong and
inapropriate [sic],” and unspecified “psychiatric medication” was “withh[e]ld[]” from her.
(Compl. ¶ III, Gioia IX, ECF No. 1.) Gioia checked the box on the form complaint to invoke this
Court’s federal question subject matter jurisdiction and wrote “medical malpractice and
negligence U.S. Code 20137” in the space that calls for “the specific federal statutes, federal
treaties, and/or provisions of the United States Constitution are at issue in this case.” (Id. ¶ IIA.)
Although Gioia left blank the section on the form complaint that asks for the citizenship of each
party, she included a residential address for herself in East Patchogue, Suffolk County, New
York and an address for SEP in the Bronx, New York. (Id. ¶¶ I A–B.)

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LEGAL STANDARDS

A district court must dismiss a complaint filed by a plaintiff proceeding in forma pauperis
if the action is “frivolous or malicious,” “fails to state a claim on which relief may be granted,”
or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i–iii). The court “shall” dismiss the action as soon as it makes such a
determination. Id. At the pleading stage, 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), aff’d 569 U.S. 108 (2013) (citing Ashcroft v. Iqbal, 556 U.S. 662,
678–80 (2009)).
This Court is required to construe pleadings “filed by pro se litigants liberally and
interpret them to raise the strongest arguments that they suggest.” Hunter v. McMahon, 75 F.4th
62, 67 (2d Cir. 2023) (quotation marks omitted). “[A] pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”
Ceara v. Deacon, 916 F.3d 208, 213 (2d Cir. 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94

(2007)).
Nevertheless, 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). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation
omitted). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements . . . are not entitled to the assumption of truth.” Id. at 678–79 (citation
omitted). While “detailed factual allegations” are not required, “[a] pleading that offers ‘labels

13
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.
at 678 (quoting Twombly, 550 U.S. at 555).
If a liberal reading of the complaint “gives any indication that a valid claim might be
stated,” the court must grant leave to amend the complaint at least once. See Cuoco v. Moritsugu,

222 F.3d 99, 112 (2d Cir. 2000) (citations omitted). If, however, amendment of the complaint
would not cure the substantive defects of the claim, leave to amend should be denied. Id.
DISCUSSION

I. Subject Matter Jurisdiction
Notwithstanding the liberal pleading standard afforded pro se litigants, a district court
“must dismiss the action” if it “determines at any time that it lacks subject matter jurisdiction.
Fed. R. Civ. P. 12(h)(3); see Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700–
01 (2d Cir. 2000) (“If subject matter jurisdiction is lacking, the action must be dismissed.”)
(citations omitted); In re Tronox Inc., 855 F.3d 84, 95 (2d Cir. 2017) (noting that courts have an
“independent obligation to consider the presence or absence of subject matter jurisdiction sua
sponte.”) (quotation marks omitted). The party “asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it exists.” Searles v. Robert, No. 21-
2836, 2023 WL 7271832, at *1 (2d Cir. Nov. 3, 2023) (quotation marks omitted).
With these standards in mind, the Court examines subject matter jurisdiction in each of
Gioia’s pending cases.

A. The Court Lacks Subject Matter Jurisdiction over Gioia VI, Gioia VII, and Gioia IX
As an initial matter, the Court has reviewed Gioia’s IFP application in Gioia IX and finds
that Gioia has established that she is qualified by her financial status to commence that action

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without the prepayment of the filing fee. (IFP App., Gioia IX, ECF No. 2). Therefore, the
application to proceed IFP is granted.
Given that Gioia filed the complaints in Gioia VI, VII, and IX directly in this Court, she
bears the burden of establishing subject matter jurisdiction. See Searles, No. 21-2836, 2023 WL

7271832, at *1. In each of those complaints, Gioia checked the box to invoke this Court’s federal
question subject matter jurisdiction. (Compl. ¶ II, Gioia VI, ECF No. 1; Compl. ¶ II, Gioia VII,
ECF No. 1; Compl. ¶ II, Gioia IX, ECF No. 1.) In Gioia VI, in the space that calls for the
specific provision of federal law at issue, Gioia alleged “Unauthorized practice of Law CFR
776.57 (Best interest of client + Due Process of service to legal owners) Service Process on
Entities § 113 – 29-104.12: ‘A represented entity may be served . . . permitted by law by serving
its registered agent.’” (Compl. ¶ II.A, Gioia VI, ECF No. 1.) In Gioia VII, Gioia’s response to
that question was “Medical malpractice and negligence U.S. Code 20137.” (Compl. ¶ II.A, Gioia
VII, ECF No. 1.) In Gioia IX against SEP, Gioia responded in the same way she had in Gioia
VII: “Medical malpractice and negligence U.S. Code 20137.” (Compl. ¶ II.A, Gioia IX, ECF No.

1.)
None of these complaints alleges a plausible federal question.7 Given Gioia’s pro se
status and in an abundance of caution, the Court has also considered whether any of the

7 Indeed, the Court understands that the Gioia VI complaint references 32 CFR § 776.57, which
addresses the unauthorized practice of law for attorneys practicing under the supervision of the
Judge Advocate General and has no application here. Further, to the extent Gioia intended to cite
20 U.S.C. § 137 in the Gioia VII complaint, that section was repealed in 1968 and governed
contracts and purchases, the executive officer, and annual reports at the National Training School
for Boys which operated until May 15, 1968 when it was closed pursuant to order of the
Attorney General. 20 U.S.C. § 137 Historical Notes. Thus, Gioia has no colorable federal claim
under 20 U.S.C. § 137 either.

15
complaints plausibly allege any federal question such that subject matter jurisdiction pursuant to
28 U.S.C. § 1331 could be invoked. Even upon a liberal construction, the Court discerns no such
claim.
The Court also does not have diversity jurisdiction under 28 U.S.C. § 1332 because

Defendants PBWT and SEP are citizens of New York, and Gioia has failed to plausibly allege
that she is not also a citizen of New York. In the Gioia VI and VII complaints, Gioia wrote that
her address is 12311 Cornerstone Lane, Princeton, New Jersey 08540, but left blank the section
that asks for the state where the plaintiff is a citizen. (See Compl. ¶¶ I, II.B.1(a), Gioia VI, ECF
No. 1; Compl. ¶¶ I, II.B.1(a), Gioia VII, ECF No. 1.) Both complaints also allege that PBWT and
SEP are New York citizens. (Compl. ¶ II.B.2(b), Gioia VI, ECF No. 1 (providing a New York
address and alleging that PBWT is incorporated in the State of New York and has its principal
place of business also in New York); Compl. ¶ II.B.2(b), Gioia VII, ECF No. 1 (alleging that
SEP is located in the Bronx, New York, is incorporated in New York and also has its principal
place of business there).) The Gioia IX complaint lists Gioia’s address as 1 1st Street in East

Patchogue, New York, 11772 and leaves blank the section of the complaint that asks for the state
where the plaintiff is a citizen. (Compl. ¶¶ I, II.B.1(a), Gioia IX, ECF No. 1.) That complaint
repeats the allegations that SEP is a New York corporation located in New York. (Id.
¶ II.B.2(b).)
The first requirement of diversity jurisdiction—that there is complete diversity of
citizenship between the plaintiff and the defendants—means that a plaintiff cannot be a citizen of
the same state as any of the defendants. St. Paul Fire & Marine Ins. Co. v. Universal Builders
Supply, 409 F.3d 73, 80 (2d Cir. 2005). In determining diversity jurisdiction, “a corporation is

16
considered a citizen of the state in which it is incorporated and the state of its principal place of
business.” Bayerische Landesbank v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 48 (2d Cir. 2012)
(citations omitted). An individual party’s citizenship depends on its domicile, which “is the place
where that individual has a true, fixed home and principal establishment, and to which, whenever

that person is absent from the jurisdiction, he or she has the intention of returning.” 13E Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3612 (3d ed. 2021); see also
Van Buskirk v. United Grp. of Cos., Inc., 935 F.3d 49, 53 (2d Cir. 2019). It is well-established
that “residence alone is insufficient to establish domicile for jurisdictional purposes.” Van
Buskirk, 935 F.3d at 54 (citation omitted); accord Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100,
103 (2d Cir. 1997) (“[I]t is well-established that allegations of residency alone cannot establish
citizenship . . . .”).
Here, Gioia has not met her burden of establishing that diversity jurisdiction lies in this
Court because she has not plausibly alleged that she is a citizen of New Jersey. Instead, her
complaints allege her residences, rather than her domicile.8 Although Gioia listed a New Jersey

address on the complaints in Gioia VI and VII, she provided a Suffolk County area phone
number and alleged that she was working in East Patchogue, Suffolk County until September 1,
2023. (See IFP App. ¶ 2, Gioia VI, ECF No. 2; IFP App. ¶ 2, Gioia VII, ECF No. 2.) None of the

8 Indeed, Gioia includes a telephone number in these complaints with a “631” area code, which
is the same Suffolk County area code included in the 2019 Actions where she alleged her
residence was in Suffolk County, New York. (See 2019 Actions, Compls.) Further, of note,
Gioia alleged that she was working in East Patchogue, New York, until September 1, 2023. (See
IFP App. ¶ 2, Gioia VI, ECF No. 2; IFP App. ¶ 2, Gioia VII, ECF No. 2.) However, Gioia filed
those complaints on October 26, 2023 and the Court evaluates diversity “by examining
citizenship as of the time suit is commenced.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42
(2d Cir. 2000).

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complaints in Gioia VI, VII, or IX allege that Gioia intends to return to her “true fixed home and
principal establishment” in New Jersey. Van Buskirk, 935 F.3d at 53. Indeed, Gioia later
indicated in her motion to remand in Gioia VIII that she maintains residences in both New York
and New Jersey. (Remand Mot. at 2, Gioia VIII, ECF No. 10.) Given that allegations of

residency alone are insufficient to establish diversity jurisdiction, Gioia has not properly invoked
this Court’s diversity subject matter jurisdiction. See, e.g., Jacobs v. Pat. Enf’t Fund, Inc., 230
F.3d 565, 567 (2d Cir. 2000) (finding that plaintiffs initially failed to allege diversity in
complaint because “they had alleged only the residence, and not the citizenship (or domicile), of
the parties”).
Because Gioia has not plausibly alleged a federal question or complete diversity, she has
not met her burden of establishing that subject matter jurisdiction lies in this Court. Accordingly,
the Court dismisses the VI, VII, and IX complaints without prejudice pursuant to Rule 12(h)(3),
Fed. R. Civ. P. See, e.g., Diaz v. Judge Advoc. Gen. of the Navy, 413 F. App’x 342, 344 (2d Cir.
2011) (“[W]here a court lacks subject matter jurisdiction, it also lacks the power to dismiss with

prejudice.”) (quotation marks omitted)).
B. The Court Remands Gioia VIII for Lack of Subject Matter Jurisdiction
As the party seeking to invoke federal subject matter jurisdiction in this removal action,
J&J bears the burden of establishing that subject matter jurisdiction lies in this Court. Winter v.
Novartis Pharms. Corp., 39 F. Supp. 3d 348, 350 (E.D.N.Y. 2014) (“In a case removed to
federal court from state court, the removal statute is to be interpreted narrowly, and the burden is
on the removing party to show that subject matter jurisdiction exists . . . .) (citing Lupo v. Human
Affairs Int’l, Inc., 28 F.3d 269, 274 (2d Cir. 1994)). “All doubts should be resolved against

18
removability.” Lupo, 28 F.3d at 274. As detailed above, “residence alone is insufficient to
establish domicile for jurisdictional purposes.” Van Buskirk, 935 F.3d at 54 (citation omitted).
Courts evaluate diversity by examining the “parties’ domicile at the time the complaint was
filed,” Van Buskirk, 935 F.3d at 53, and “[a]n individual’s citizenship, within the meaning of the

diversity statute, is determined by his domicile.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38,
42 (2d Cir. 2000). In this context, domicile is defined as “the place where a person has his true
fixed home . . . and to which, whenever he is absent, he has the intention of returning.” Id.
(quotation marks and citation omitted).
J&J has not properly invoked this Court’s diversity subject matter jurisdiction because it
alleges only Gioia’s residency, not her domicile. J&J’s Notice of Removal argues that diversity
jurisdiction exists because (1) Gioia’s amended complaint and summons state that she was a
resident of Suffolk County, (2) J&J is a New Jersey corporation, and (3) the amount in
controversy exceeds $75,000. (Not. of Removal ¶¶ 5–7, Gioia VIII, ECF No. 1.) J&J fails to
account for the fact that Gioia has used both a Suffolk County and New Jersey address

throughout the prosecution of the state court action. For example, Gioia listed 12311 Cornerstone
Lane, Princeton, New Jersey, 08540 as her address on the summons, below her signature on page
6, on the request for judicial intervention, and on her motion for default judgment. (State Ct. Rec.
at 6, 8–9, 10–11, 18–19, Gioia VIII, ECF No. 1-1.) The affidavit in support of Gioia’s motion for
default judgment filed in the state court includes a notarization of Gioia’s signature in New
Jersey. (Id. at 10–11, 18–9.) In denying the motion for default judgment, Acting Supreme Court
Justice Quinn listed both Gioia’s New Jersey and Suffolk County, New York addresses, noting
that “[t]he summons and complaint states Plaintiff’s address is in Ronkonkoma, however, every

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other document filed indicates Plaintiff’s address as a New Jersey address and the documents
notarized are all from a New Jersey notary.” (Id. at 29.)
Gioia’s later filings also allege her residences, rather than her domicile. For example,
every paper Gioia filed in the state court, beginning with the March 1, 2024 amended complaint,

lists Gioia’s Suffolk County address in East Patchogue, New York. (Id. at 38, 43–52; see also id.
at 32, 40 (showing that Gioia signed notarized papers in Suffolk County, New York).) Gioia’s
Motion to Remand states that she has two residences, one in New York and the other in New
Jersey, but includes no facts suggesting that New York is the place that she intends to remain
indefinitely. (Remand Mot. at 2, Gioia VIII, ECF No. 10.) Instead, she explains that, although
her fiancée resides in Suffolk County, New York, and that she “used to live there,” she also lives
with her mother in New Jersey. (Id.) Contrary to J&J’s argument, these facts do not reveal an
intent to remain in New York indefinitely and are therefore insufficient to show her domicile in
New York.
The removed action does not allege a federal question such that this Court’s federal

question subject matter jurisdiction could properly be invoked. The amended complaint alleges
that J&J “failed to warn about important side effects and ultimate outcome of medication Invega
while rapidly promoting it during preliminary phased approval by FDA” and that this failure to
warn “caused misrepresentation of my academic knowledge through misrepresentation of exam
scores which caused me to have multiple attempts at exact exams while taking that medical
while being disillusioned.” (State Ct. Rec. at 35, Gioia VIII, ECF No. 1-1.) Even upon a liberal
construction, Gioia does not allege a colorable federal claim and the Court discerns none.

20
Instead, she continues to pursue her unsuccessful state law lack of informed consent and failure
to warn claims.
Because this Court has neither diversity nor subject matter jurisdiction over Gioia VIII, it
must remand this case sua sponte. 28 U.S.C. 1447(c) (“If at any time before final judgment it

appears that the district court lacks subject matter jurisdiction [over a case removed from state
court], the case shall be remanded.”) Accordingly, Gioia VIII is remanded to the New York State
Supreme Court, Suffolk County, pursuant to 28 U.S.C. § 1447(c). The Court does not reach
whether dismissal for failure to prosecute under Fed. R. Civ. P. 41(b) is warranted where Gioia
failed to respond to J&J’s March 21, 2024 pre-motion conference letter in which J&J argues that
Gioia has named J&J rather than Janssen in an apparent effort to bypass the Court’s “express
warning not to bring any more cases against Janssen.” (Gioia VIII, ECF No. 8.)
II. Warning to Gioia
As demonstrated above, the complaints in Gioia VI–IX repeat the allegations and
jurisdictional defects of the previously-dismissed complaints in Gioia I–V. Gioia cannot

repeatedly file the same claims in an attempt to obtain a different result. “Every paper filed with
the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the
institution’s limited resources. A part of the Court’s responsibility is to see that these resources
are allocated in a way that promotes the interests of justice.” In re McDonald, 489 US 180, 184
(1989). If Gioia files another complaint about the same subject matter as Gioia I–IX, including
allegations arising from or relating to the medication Invega, the Court will order Gioia to show
cause why she should not be barred under 28 U.S.C. § 1651 from filing new civil actions without
prior permission from the Court. This warning applies to any complaints filed directly in this

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Court or properly removed here.
III. Leave to Amend Would be Futile
“Although district judges should, as a general matter, liberally permit pro se litigants to
amend their pleadings, leave to amend need not be granted when amendment would be futile.”

Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016). Granting leave to amend here
would be unproductive because even if Gioia properly alleged a basis for diversity jurisdiction,
her lack of informed consent and failure to warn claims are not plausible and that determination
has been affirmed on appeal. (See Mem., Gioia I, ECF. No. 58; Mandate, Gioia I. ECF No. 63.)
Additionally, Gioia’s failure to respond to this Court’s orders in Gioia VI, VII, and IX raises
failure-to-prosecute concerns and any further litigation between the parties arising from Gioia’s
use of the medication Invega would likely be precluded.9

CONCLUSION

For the reasons stated above, this Court grants Gioia’s motion to proceed IFP (Gioia IX,
ECF No. 2) and dismisses the complaints in Gioia VI, VII, and IX without prejudice pursuant to
Fed. R. Civ. P. 12(h)(3). Leave to amend these complaints is denied. Pursuant to 28 U.S.C.
§ 1447(c), the complaint in Gioia VIII is remanded to the New York State Supreme Court,
Suffolk County. The Clerk of the Court shall: (1) forward a certified copy of this Memorandum
and Order to the Clerk of the New York State Supreme Court, Suffolk County; (2) enter
judgment accordingly in each case; and (3) mail a copy of this Memorandum and Order to Gioia

9 Given the lack of subject matter jurisdiction, the Court does not reach whether res judicata or
collateral estoppel would preclude adjudication of Gioia’s present claims, or whether Gioia’s
failure to respond to the Court’s orders merits dismissal under Fed. R. Civ. P. 41(b).

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at her addresses of record in Suffolk County and New Jersey and note such mailing on the
docket.
Gioia is warned that, if she files another complaint about the same subject matter as
Gioia I–IX, including allegations arising from or relating to the medication Invega, the

Court will order her to show cause why she should not be barred under 28 U.S.C. § 1651
from filing new civil actions without prior permission from the Court. This warning applies
to any complaints filed directly in this Court or properly removed here.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith and therefore in forma pauperis status
is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45
(1962).

Dated: Central Islip, New York
April 19, 2024

________/s Nusrat J. Choudhury_______
NUSRAT J. CHOUDHURY
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311685. Public record. Not legal advice.