Brown v. Microsoft Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DORA BROWN,

Plaintiff,

19-CV-6649 (CM)

-against-

ORDER OF DISMISSAL

MICROSOFT CORPORATION,

Defendant.

COLLEEN McMAHON, Chief United States District Judge:

Plaintiff, appearing pro se, brings this action invoking the Court’s diversity jurisdiction,

28 U.S.C. § 1332. By order dated August 7, 2019, the Court granted Plaintiff’s request to

proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth in this

order, the Court dismisses the action for lack of subject matter jurisdiction.

STANDARD OF REVIEW

The Court must dismiss an in forma pauperis complaint, or portion thereof, that is

frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also

dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P.

12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in

original).

BACKGROUND

This complaint, which is very difficult to read, concerns Plaintiff’s inability to access

documents and email on her computer. She claims that her “work disappeared from the cloud”

and that she cannot access her “outlook from email.” ECF No. 2. She also appears to struggle

with backing up documents. The stress caused by Plaintiff’s failed attempts to access her

documents and email has exacerbated her underlying medical conditions. She seeks

compensation “for the loss of data and the continuing abuse of [her] civil, legal, intellectual

property rights.” Id.

DISCUSSION

The subject matter jurisdiction of the federal district courts is limited and is set forth

generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal jurisdiction is available

only when a “federal question” is presented or when plaintiff and defendant are citizens of

different states and the amount in controversy exceeds the sum or value of $75,000. “‘[I]t is

common ground that in our federal system of limited jurisdiction any party or the court sua

sponte, at any stage of the proceedings, may raise the question of whether the court has subject

matter jurisdiction.’” United Food & Commercial Workers Union, Local 919, AFL-CIO v.

CenterMark Prop. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (quoting Manway

Constr. Co., Inc. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983)); see

Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”); Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own

initiative . . . .”).

To invoke federal question jurisdiction, a plaintiff’s claims must arise “under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under

federal law if the complaint “establishes either that federal law creates the cause of action or that

the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal

law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting

Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Mere invocation of

federal jurisdiction, without any facts demonstrating a federal law claim, does not create federal

subject matter jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182,

1188-89 (2d Cir. 1996). Plaintiff does not invoke the Court’s federal question jurisdiction or

plead facts showing that her claim arises under federal law.

Plaintiff also does not allege facts demonstrating that the Court has diversity jurisdiction

over this action. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that

the plaintiff and the defendant are citizens of different states. Wis. Dep’t of Corr. v. Schacht, 524

U.S. 381, 388 (1998). Plaintiff must also allege to a “reasonable probability” that the claim is in

excess of the sum or value of $75,000.00, the statutory jurisdictional amount. See 28 U.S.C.

§ 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006)

(citation and internal quotation marks omitted).

Plaintiff’s allegations show that the amount in controversy cannot be satisfied. The Court

can dismiss a complaint for failing to plead that the amount in controversy exceeds $75,000 only

if there is “a legal certainty from the complaint that plaintiff cannot recover sufficient damages to

invoke federal jurisdiction.” Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.

1982); Ochoa v. Interbrew America, Inc., 999 F.2d 626, 628-29 (2d Cir. 1993) (“[I]n

determining whether a challenged jurisdictional amount has been met, district courts are

permitted only to assess the allegations in a complaint and not the validity of any asserted

defenses.”).

Here, Plaintiff does not allege any facts in the complaint suggesting that she is legally

entitled to any money. Because “from the face of the pleadings, it is apparent, to a legal

certainty, that the plaintiff cannot recover the amount claimed,” Ochoa, 999 F.2d at 629, Plaintiff

has not pleaded facts that, if true, would allow her to recover sufficient damages to invoke the

Court’s diversity jurisdiction. The Court therefore lacks subject matter jurisdiction over this

action.

A district court may decline to exercise supplemental jurisdiction over state-law claims

when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

§ 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its

early stages and only state-law claims remain, the federal court should decline the exercise of

jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).

Having dismissed the federal claims over which the Court has original jurisdiction, the

Court declines to exercise its supplemental jurisdiction over any state-law claims Plaintiff may

be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

(“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by

enumerating the circumstances in which district courts can refuse its exercise.’”) (quoting City of

Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997)).

WARNING

In the past month, Plaintiff has filed seven other cases in this Court. See, e.g., Brown v.

Apple Corporation, ECF 1:19-CV-6648, 2 (filed July 16, 2019); Brown v. HP Inc., ECF 1:19-

CV-6331, 2 (filed July 8, 2019); Brown v. CUCS, ECF 1:19-CV-6330, 2 (filed July 8, 2019);

Brown v. Fios, ECF 1:19-CV-6329, 2 (filed July 8, 2019); Brown v. Automattic, ECF 1:19-CV-

6328, 2 (filed July 8, 2019); Brown v. Rose, ECF 1:19-CV-6786, 2 (filed July 22, 2019); Brown

v. Etemao, ECF 1:19-CV-6286, 5 (S.D.N.Y. Aug. 5, 2019) (dismissed for lack of subject matter

jurisdiction). The Court therefore warns Plaintiff that further duplicative or frivolous litigation in

this Court will result in an order barring Plaintiff from filing new actions in forma pauperis

without prior permission. See 28 U.S.C. § 1651.

CONCLUSION

The Clerk of Court is directed to assign this matter to my docket. Plaintiff has consented

to electronic service. Plaintiff's complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1),

is dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an

appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is directed to docket this as a “written opinion” within the meaning of

Section 205(a)(5) of the E-Government Act of 2002.

SO ORDERED.

Dated: August 9, 2019 ,

New York, New York huh Hike

Chief United States District Judge