Taylor v. Enterprise Holding Group, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

RONALD G. TAYLOR,

Plaintiff,

20-CV-6793 (LLS)

-against-

ORDER TO AMEND

ENTERPRISE HOLDING GROUP, LLC,

Defendant.

LOUIS L. STANTON, United States District Judge:

Plaintiff, appearing pro se, brings this action under the Court’s federal question

jurisdiction, alleging that Defendant discriminated against him and committed other misconduct.

By order dated August 31, 2020, the Court granted Plaintiff’s request to proceed without

prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court grants

Plaintiff leave to file an amended complaint within sixty days of the date of this order.

STANDARD OF REVIEW

The Court must dismiss an in forma pauperis complaint, or any portion of the complaint,

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). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –

to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain statement showing that the

pleader is entitled to relief.

The Supreme Court has held that under Rule 8, a complaint must include enough facts to

state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the

Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing

the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals

of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550

U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court

must determine whether those facts make it plausible – not merely possible – that the pleader is

entitled to relief. Id.

BACKGROUND

Plaintiff sets forth the following allegations. In August 2019, Plaintiff rented, leased, or

was otherwise “lawfully given possession” of a 2019 Jeep Grand Cherokee through Enterprise.

On October 17, 2019, an Enterprise employee telephoned Plaintiff and informed him that the

vehicle had been involved in an accident. Plaintiff disavowed any knowledge of that incident, but

the employee stated that he had “personally [gone] to the garage that housed the vehicle in

question and spoke with the supervising garage attendant therein and it was concluded that ‘you

did it.’” (ECF 2 ¶¶ 9-12.) The complaint continues:

Plaintiff surmised by equating that the meeting . . . was by and between some

“good old boys” who clearly conspired to conceal and cover-up the truth by

targeting the Plaintiff Ronald G. Taylor for so-called damages to the vehicle in

question; in addition, Plaintiff clearly stated to the Defendant electronically which

it never refuted are you saying that the word of a white man has trumps [sic] the

word of a black man who has a lengthy business relationship which spans years

with Enterprise and based on that alone my credibility should not be an issue as

on solely that I should be deemed trustworthy.

(Id. ¶ 13.)

During an October 31, 2019 telephone conversation, Alexander Pope, an Enterprise

employee in Missouri, demanded that Plaintiff pay $1,000 “to satisfy” the “claim,” and “made it

clear” that if Plaintiff did not pay the money it would “sever the relationship” with Plaintiff and

“impede the ability of the Plaintiff establishing a relationship with any other rent a car company

and also turn this matter over to an agency to enforce collection.” (Id. ¶¶ 14, 15(d).) Plaintiff

conducted a “limited investigation,” but was not permitted to inspect the vehicle,” or view

videotape of the incident “which contained exculpatory evidence.” (Id. ¶ 15.)

Plaintiff asserts claims of extortion under 18 U.S.C. § 875(d); “harassment or abuse”

under 15 U.S.C. § 1692d(3); and discrimination under 22 U.S.C. § 2755. Plaintiff seeks

declaratory relief and $100,000 in damages. Plaintiff resides in Manhattan. He does not provide

an address for Defendant Enterprise Holding Group, LLC.

DISCUSSION

A. Federal Question Jurisdiction

Plaintiff invokes the Court’s federal question jurisdiction, 28 U.S.C. § 1331, but the facts

alleged do not give rise to claims under the federal statutes cited in the complaint.

Fair Debt Collection Practices Act

Plaintiff alleges that Defendant harassed and abused him in violation of the Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. § 1692. The FDCPA applies to consumer debt

“arising out of . . . transaction[s]” that “are primarily for personal, family, or household

purposes.” 15 U.S.C. § 1692a(5); Polanco v. NCO Portfolio Mgmt., Inc., 930 F. Supp. 2d 547,

551 (S.D.N.Y. 2013) (“[T]he FDCPA is triggered when the obligation is a debt arising out of a

consumer transaction”). In cases where the FDCPA applies, it prohibits deceptive and misleading

practices by “debt collectors.” 15 U.S.C. § 1692e.

A debt collector is defined in § 1692a(6) as: (1) a person whose principal purpose is to

collect debts; (2) a person who regularly collects debts owed to another; or (3) a person who

collects its own debts, using a name other than its own as if it were a debt collector.1 Creditors

are generally not considered “debt collectors”2 under the FDCPA. See Burns v. Bank of Am., 655

F. Supp. 2d 240, 254 (S.D.N.Y. 2008) (dismissing FDCPA claims against bank mortgagee

because they were not a ‘debt collector’ since “the [FDCPA] is quite clear that it is directed at

independent debt collectors and not creditors attempting to collect on their own debts”) (citation

omitted), aff’d, 360 F. App’x 255 (2d Cir. 2010).

Here, Plaintiff alleges that an Enterprise employee “harassed” and “abused” him for a

$1,000 payment. Plaintiff asserts that he is not responsible for the damage to the vehicle, and

therefore not liable for the $1,000 payment, and he also claims that he was prevented from

investigating the incident. These facts do not give rise to an FDCPA claim. The Court will

assume for the purposes of this order that the Enterprise employee acted in a deceptive or

misleading manner. But the Enterprise employee does not qualify as a debt collector under the

FDCPA; instead, he was speaking as a creditor. Although Plaintiff alleges that the Enterprise

1 See also Henson v. Santander Consumer USA, Inc., 137 S. Ct. 1718 (2017) (holding that

entities that regularly purchase debts originated by someone else and then seek to collect those

debts for their own account are not necessarily debt collectors subject to the FDCPA).

2 “The term ‘debt collector’ means any person who uses any instrumentality of interstate

commerce or the mails in any business the principal purpose of which is the collection of any

debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or

asserted to be owed or due another.” 15 U.S.C. § 1692a(6).

employee threatened to turn the matter over to a collection agency, the complaint does not

suggest that that has yet occurred.

For these reasons, it does not appear that Plaintiff can state a claim under the FDCPA.

Extortion

Plaintiff alleges that Defendant engaged in extortion, and he cites to a federal criminal

statute, 18 U.S.C. 875(d). A private citizen, however, cannot prosecute a criminal action in

federal court. See Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981) (prisoners lack standing to

seek the issuance of an arrest warrant); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A]

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

another.”).

Additionally, under both state and federal law, extortion and attempted extortion are

criminal offenses that do not imply a private right of action. See N.Y. Penal Law § 155.05[2][e];

§ 110.00; Minnelli v. Soumayah, 839 N.Y.S.2d 727, 728 (1st Dep’t 2007); Walia v. Veritas

Healthcare Solutions, L.L.C., 13-CV-6935 (KPF) 2015 WL 4743542, at *2 (S.D.N.Y. Aug. 11,

2015); Naples v. Stefanelli, 972 F. Supp. 2d 373, 401 (E.D.N.Y. 2013) (Dismissing with prejudice

Plaintiff’s extortion claims because under New York law, extortion “is a criminal offense, and

may not be pled as a separate cause of action in a civil case.”); Mathon v. Feldstein, 303 F. Supp.

2d 317, 325 (E.D.N.Y. 2004) (holding that “extortion is a federal crime ... [and] there is no

federal statute creating a private civil cause of action for extortion.”).

Accordingly, Plaintiff’s extortion claim does not give rise to a civil cause of action falling

within this Court’s subject matter jurisdiction.

Discrimination

Plaintiff alleges that Defendant discriminated against him, in violation of 22 U.S.C.

§ 2755. That statute prohibits discrimination in the “furnishing of defense articles or defense

services” on the basis of race, religion, national origin, or sex, see 22 U.S.C. 2755(a), and bears

no relevance to the facts alleged.

The Court construes the complaint as asserting a discrimination claim under 42 U.S.C.

§ 1981, which provides that all individuals “have the same right . . . to make and enforce

contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white citizens.” § 1981(a).

To state a claim under § 1981, a plaintiff must allege three elements: “(1) the plaintiff is a

member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant;

and (3) the discrimination concerned one or more of the activities enumerated in the statute . . . .”

Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 1 F.3d 1085, 1087 (2d Cir. 1993) (per curiam).

In the context of retail shopping, courts have held that the “contracts” clause and the “equal

benefit of all laws and proceedings” clause applies. See Domino’s Pizza, Inc. v. McDonald, 546

U.S. 470, 476 (2006) (holding that a plaintiff is entitled to relief under § 1981 “when racial

discrimination blocks the creation of a contractual relationship, as well as when racial

discrimination impairs an existing contractual relationship.”).

The complaint does not contain sufficient facts to state a discrimination claim under

§ 1981. According to Plaintiff, an Enterprise employee did not “refute” Plaintiff’s assertion,

apparently made in an email, that Enterprise was accepting the word “of a white man” over

Plaintiff’s. These facts alone do not give rise to an inference that Defendant intended to

discriminate against Plaintiff on the basis of a protected characteristic. The Court grants Plaintiff

leave to submit an amended complaint to provide any other available facts in support of a claim

under § 1981.

B. Diversity Jurisdiction

Plaintiff does not explicitly assert any state law claims, and it is not clear whether this

Court would have diversity jurisdiction over this matter. 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). In addition, the plaintiff must

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).

“An individual’s citizenship, within the meaning of the diversity statue, is determined by

his domicile.” Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). For the purposes of diversity

jurisdiction, a corporation is a citizen of the state where it has its principal place of business and

the state where it is incorporated. Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). The

citizenship of a limited liability company (“LLC”) depends upon the citizenship of its members.

See Handelsman v. Bedford Village Assoc. Ltd. P’ship, 213 F.3d 48, 51 (2d Cir. 2000).

Here, Plaintiff alleges that he is a citizen of New York. He does not plead any facts about

the members of Enterprise Holding Group LLC, or the citizenship of each of such members. It is

thus not clear that complete diversity of citizenship exists. See Aurecchione v. Schoolman Transp.

Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (holding that the plaintiff bears the burden of

establishing subject matter jurisdiction).

It is also not clear that the amount in controversy exceeds $75,000.00. There is in this

Circuit “a rebuttable presumption that the face of the complaint is a good faith representation of

the actual amount in controversy.” Wolde-Meskel v. Vocational Instruction Project Cmty. Servs.,

Inc., 166 F.3d 59, 63 (2d Cir. 1999). But where a complaint does not contain facts plausibly

suggesting that the amount in controversy meets the jurisdictional minimum, the Court is not

required to presume that the bare allegations in the complaint are a good faith representation of

the actual amount in controversy. See Weir v. Cenlar FSB, No. 16-CV-8650 (CS), 2018 WL

3443173, at *12 (S.D.N.Y. July 17, 2018) (reasoning that “the jurisdictional amount, like any

other factual allegation, ought not to receive the presumption of truth unless it is supported by

facts rendering it plausible”) (citing Wood v. Maguire Auto. LLC, No. 09-CV-0640, 2011 WL

4478485, at *2 (N.D.N.Y. Sept. 26, 2011), aff’d, 508 F. App’x 65 (2d Cir. 2013) (summary

order)); Adams v. Netflix HQ, No. 17-CV-1468, 2017 WL 6618682, at *2 (D. Conn. Sept. 18,

2017) (“The complaint . . . ‘must allege facts in a non-conclusory manner that plausibly establish

grounds for relief.’” (quoting Lapaglia v. Transamerica Cas. Ins. Co., 155 F. Supp. 3d 153, 155

(D. Conn. 2016)).

Here, Plaintiff alleges that Defendant is wrongfully demanding $1,000 from him, and he

does not provide facts suggesting that the amount in controversy in this action exceeds

$75,000.00. Rather, the amount Plaintiff specifies — $100,000 — likely includes potential

compensatory and punitive damages, and appears to be entirely speculative.3 Without facts to

support this assertion, the Court cannot presume that the claim is in excess of $75,000.

Should Plaintiff file an amended complaint, he may present any additional facts showing

that the Court has diversity jurisdiction over this matter.

C. Supplemental Jurisdiction

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

3 Although punitive damages are considered when calculating the amount in controversy,

if punitive damages are not recoverable under New York law on the claim for which they are

sought, then the amount should not be included in the calculation. See Fairman v. Hurley, 373 F.

Supp. 2d 227, 234–35 (W.D.N.Y. 2005) (citing 15 Moore’s Federal Practice § 102.106[4]).

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)). Because it is not clear that

Plaintiff can state a claim over which the Court has original jurisdiction, the Court will determine

at a later stage whether or not to exercise its supplemental jurisdiction over any state-law claims.

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)).

CONCLUSION

Plaintiff is granted leave to file an amended complaint that complies with the standards

set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit

within sixty days of the date of this order, caption the document as an “Amended Complaint,”

and label the document with docket number 20-CV-6793 (LLS). An Amended Complaint form is

attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the

time allowed, and he cannot show good cause to excuse such failure, the complaint will be

dismissed for failure to state a claim upon which relief may be granted.

Plaintiff has consented to electronic service of court documents. (ECF No. 3.)

SO ORDERED.

Dated: September 17, 2020

New York, New York Leis L Stent _

Louis L. Stanton

US.D.J.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

_____CV_______________

(Include case number if one has been

Write the full name of each plaintiff.

assigned)

AMENDED

-against-

COMPLAINT

Do you want a jury trial?

☐ Yes ☐ No

Write the full name of each defendant. If you need more

space, please write “see attached” in the space above and

attach an additional sheet of paper with the full list of

names. The names listed above must be identical to those

contained in Section II.

NOTICE

The public can access electronic court files. For privacy and security reasons, papers filed

with the court should therefore not contain: an individual’s full social security number or full

birth date; the full name of a person known to be a minor; or a complete financial account

number. A filing may include only: the last four digits of a social security number; the year of

an individual’s birth; a minor’s initials; and the last four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

I. BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of

cases can be heard in federal court: cases involving a federal question and cases involving

diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United

States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,

a case in which a citizen of one State sues a citizen of another State or nation, and the amount

in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may

be a citizen of the same State as any plaintiff.

What is the basis for federal-court jurisdiction in your case?

☐ Federal Question

☐ Diversity of Citizenship

A. If you checked Federal Question

Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship

1. Citizenship of the parties

Of what State is each party a citizen?

The plaintiff , , is a citizen of the State of

(Plaintiff’s name)

(State in which the person resides and intends to remain.)

or, if not lawfully admitted for permanent residence in the United States, a citizen or

subject of the foreign state of

.

If more than one plaintiff is named in the complaint, attach additional pages providing

information for each additional plaintiff.

If the defendant is an individual:

The defendant, , is a citizen of the State of

(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or

subject of the foreign state of

.

If the defendant is a corporation:

The defendant, , is incorporated under the laws of

the State of

and has its principal place of business in the State of

or is incorporated under the laws of (foreign state)

and has its principal place of business in .

If more than one defendant is named in the complaint, attach additional pages providing

information for each additional defendant.

II. PARTIES

A. Plaintiff Information

Provide the following information for each plaintiff named in the complaint. Attach additional

pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

B. Defendant Information

To the best of your ability, provide addresses where each defendant may be served. If the

correct information is not provided, it could delay or prevent service of the complaint on the

defendant. Make sure that the defendants listed below are the same as those listed in the

caption. Attach additional pages if needed.

Defendant 1:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 2:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 3:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 4:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

III. STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were

harmed, and what each defendant personally did or failed to do that harmed you. Attach

additional pages if needed.

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical

treatment, if any, you required and received.

IV. RELIEF

State briefly what money damages or other relief you want the court to order.

V. PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the

complaint is not being presented for an improper purpose (such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported

by existing law or by a nonfrivolous argument to change existing law; (3) the factual

contentions have evidentiary support or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for further investigation or discovery;

and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil

Procedure 11.

I agree to notify the Clerk's Office in writing of any changes to my mailing address. I

understand that my failure to keep a current address on file with the Clerk's Office may

result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to

proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff’s Signature

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:

☐ Yes ☐ No

If you do consent to receive documents electronically, submit the completed form with your

complaint. If you do not consent, please do not attach the form.