Brown v. President/Founder Alma Realty Corp.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DAMONTE BROWN,

Plaintiff,

1:22-CV-2648 (LTS)

-against-

PRSIDENT/FOUNDER ALMA REALTY ORDER OF DISMISSAL

CORP,

Defendant.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff DAmonte Brown, who is appearing pro se, filed this action invoking the Court’s

diversity jurisdiction. He also asserts that “liberty of party” is a jurisdictional basis of his claims.

(ECF 2, at 2.) Plaintiff sues the “President/Founder” of “Alma Realty Corp,” which is located in

Long Island City, Queens County, New York. While his complaint is not very clear, it appears

that Plaintiff seeks damages.

By order dated May 9, 2022, the Court granted Plaintiff’s request to proceed in forma

pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth in this order, the

Court dismisses this action for lack of subject matter jurisdiction, but grants Plaintiff leave to

replead his claims in an amended complaint.1

1 Because the responses in Plaintiff’s original IFP application did not establish that

Plaintiff was unable to pay the fees to bring this action, by order dated April 5, 2022, the Court

directed Plaintiff to either pay the fees to bring this action or submit an amended IFP application.

Plaintiff submitted an amended IFP application (ECF 4) and, on the basis of Plaintiff’s responses

in that submission, the Court granted Plaintiff IFP status for this action. Attached to Plaintiff’s

amended IFP application, however, are documents in which Plaintiff asserts claims arising from

incidents that allegedly occurred in the Daniel Patrick Moynihan United States Courthouse, and

that have nothing to do with the allegations in Plaintiff’s complaint. The Court will therefore

disregard the documents attached to Plaintiff’s amended IFP application. If Plaintiff wishes to

assert claims arising from the incidents that allegedly occurred in the courthouse, he may assert

them in a complaint commencing a separate civil action.

STANDARD OF REVIEW

The Court must dismiss an IFP 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

Plaintiff asserts in his complaint that the jurisdictional bases of his claims are diversity of

citizenship and “liberty of party.” (ECF 2, at 2.) He alleges that both he and the defendant are

citizens of the State of New York, and that the events giving rise to his claims began in 2021,

have continued to the present, and have occurred in the State of New York and in “electronic

mail service.” (Id. at 5.)

In his complaint’s statement of claim, Plaintiff describes his complaint as an “emergency

application.” (Id.) He also asserts the following in his complaint’s statement of claim: “Failure of

the company as of, determined February 28, 2022. References available. All respects to building

authority provided. Service date of notice January 28th 2022.” (Id.)

In the injuries section of his complaint, Plaintiff states: “pain and suffering – 2021 –

2022/present. Holistic wellness practices. Provider information available upon request.” (Id. at

6.) In addition, Plaintiff asserts the following in the relief section of his complaint:

“Wrongdoing/Unlawful business activity termination. Causation of damages, litigation regs to be

presented at case end. Forfeiture of ownership, transfer of ownership, rights to plaintiff, or

equivalent. More information available upon request.” (Id.)

DISCUSSION

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

generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, a federal district court has subject

matter jurisdiction of a claim only when a “federal question” is presented, or when the plaintiff

asserts claims under state law under the court’s diversity jurisdiction, when the plaintiff and the

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 support 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 question jurisdiction, without any facts demonstrating that the plaintiff has a federal law

claim, does not create federal question jurisdiction. See Nowak v. Ironworkers Local 6 Pension

Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996).

Plaintiff asserts that one of the jurisdictional bases of his claims is “liberty of party,”

which the Court understands to be an assertion that there is a federal claim supporting federal

question jurisdiction. Plaintiff has alleged no facts, however, showing that the Court has federal

question jurisdiction of his claims.

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

of his claims. To establish diversity jurisdiction, a plaintiff must first allege that he and the

defendant are citizens of different states. See 28 U.S.C. § 1332(a)(1); 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 claims are in excess of the sum or value of $75,000, the statutory

jurisdictional amount. See § 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 asserts that both he and the defendant are citizens of the State of New York, and

he alleges no facts showing that his claims satisfy the jurisdictional amount, which must exceed

the sum or value of $75,000. Thus, the Court has no diversity jurisdiction of Plaintiff’s claims.

Because Plaintiff does not show that the Court has federal question or diversity

jurisdiction of his claims, the Court dismisses this action for lack of subject matter jurisdiction.

See Fed. R. Civ. P. 12(h)(3). In light of Plaintiff’s pro se status, however, the Court grants

Plaintiff leave to replead his claims in an amended complaint in which he alleges facts showing

that this Court has subject matter jurisdiction of his claims; Plaintiff must allege facts showing

that the Court has federal question or diversity jurisdiction of his claims.

CONCLUSION

The Court dismisses this action for lack of subject matter jurisdiction, see Fed. R. Civ. P.

12(h)(3), but grants Plaintiff 30 days’ leave to replead his claims in an amended complaint in

which he alleges facts showing that this Court has subject matter jurisdiction of his claims. If

Plaintiff fails to file an amended complaint within the time allowed, the Court will enter

judgment dismissing this action for lack of subject matter jurisdiction. Id.

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 IFP status is denied for the purpose of an appeal. See

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

SO ORDERED.

Dated: May 16, 2022

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge