“[S]ubject-matter delineations must be policed by the courts on their own initiative . . . .”
How later courts described this case
- “[S]ubject-matter delineations must be policed by the courts on their own initiative . . . .”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DORA I. BROWN,
Plaintiff,
-against- 19-CV-6330 (CM)
CUCS; WIFI RUSH-34; ORDER OF DISMISSAL
DIRECT_F2_HP_OFFICE JET PRO 6970,
Defendant.
COLLEEN McMAHON, Chief United States District Judge:
Plaintiff, appearing pro se and in forma pauperis (IFP), brings this action under the
Court’s federal question jurisdiction. 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
In this complaint, Plaintiff alleges that Defendants — CUCS, Wifi Rush-34, and
Direct_F2_HP_Office Jet Pro 6970 — are interfering with her internet access and violating her
privacy. Plaintiff lives in the St. George Hotel with other residents who receive services from
CUCS “as the caregiver.”
CUCS also runs the communal computer room for those who do not have access
to their own internet service and also provides for a fee access to a ‘hotspot’
provided by Wifi Rush (Network Cloud Management) Direct_F2_HP_Office Jet
Pro 6970 provides the printing svcs. I provide my own services, internet, hotspot,
printing. I am not a client of CUCS. I am a rent stabilized tenant in an affordable
section 8 studio apartment. The violation of my privacy, digital technology tools,
computer, iphone, & ipad have become unbearable since they have moved their
communal computer room directly across the courtyard facing my studio
apartment. CUCS has claimed ownership of my website name EV7 and has used
its digital tools to violate my privacy collaborating with FIOS (Verizon) now that
the abuse and harassment has become so virulent. Have reported it to Verizon
which suggested I file a fraud case with their fraud team, my ability to do this has
been blocked on my laptop computer, iphone and ipad. I am also filing a lawsuit
against Verizon Fios also.
(ECF 1:19-CV-6330, 2.) Plaintiff seeks money damages.
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 plead any 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).
Here, Plaintiff does not allege any facts in the complaint suggesting that there is diversity
of citizenship. The Court therefore lacks diversity jurisdiction over this action.
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to
cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione,
657 F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Because the defects in Plaintiff’s complaint cannot be cured with an amendment, the Court
declines to grant Plaintiff leave to amend her complaint.
LITIGATION HISTORY AND WARNING
In a matter of weeks, Plaintiff has filed eight cases in this Court, including this action.
See Brown v. Microsoft Corp., ECF 1:19-CV-6649, 9 (S.D.N.Y. Sept. 30, 2019) (dismissed for
lack of subject matter jurisdiction); Brown v. Etemao, ECF 1:19-CV-6286, 5 (S.D.N.Y. Aug. 5,
2019) (dismissed for lack of subject matter jurisdiction); Brown v. Rosen, ECF 1:19-CV-6786, 2
(S.D.N.Y. filed July 22, 2019); Brown v. Apple Corp., ECF 1:19-CV-6648, 2 (S.D.N.Y. filed
July 16, 2019); Brown v. HP Inc., ECF 1:19-CV-6331, 5 (S.D.N.Y. Oct. 25, 2019)(dismissed for
lack of subject matter jurisdiction); Brown v. FIOS, ECF 1:19-CV-6329, 4 (S.D.N.Y. Oct. 25,
2019) (dismissed for lack of subject matter jurisdiction with leave to replead); Brown v.
Automattic, ECF 1:19-CV-6328, 2 (S.D.N.Y. filed July 8, 2019).
On August 9, 2019, Plaintiff was warned that further vexatious or frivolous litigation in
this Court will result in an order barring her from filing any new actions IFP without prior
permission. See Brown, ECF 1:19-CV-6649, 5; see also 28 U.S.C. § 1651. Plaintiff filed this
action before that warning was issued. The Court now reiterates that warning. On September 20,
2019, Plaintiff was further warned that if she is unable to plead facts establishing diversity, the
Court will issue an order directing Plaintiff to show cause why she should not be required to
obtain permission from the Court before filing any new action. See Brown, ECF 1:19-CV-6328,
5.
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this
order to Plaintiff, and note service on the docket. Plaintiffs complaint, filed IFP under 28 U.S.C.
§ 1915(a)(1), is dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
Plaintiff is warned that further duplicative or frivolous litigation in this Court will result
in an order barring her from filing new actions in forma pauperis without prior permission.
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: November 1, 2019 □
New York, New York hie. ac hk
Chief United States District Judge