# Pierre v. John Doe

> District Court, E.D. New York · February 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10800816

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 14, 2025
- **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/10800816

## How later opinions describe it (automated extraction)

- noting that, even after Twombly, courts “remain obligated to construe a pro se complaint liberally”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

KATHELINE PIERRE,

Plaintiff,
MEMORANDUM & ORDER
v.

24-CV-5996 (HG) (VMS)
MARK EUBANKS, President and Chief

Executive Officer, Brinks, Inc.,

Defendant.

HECTOR GONZALEZ, United States District Judge:
Plaintiff Katheline Pierre filed this action pro se in the United States District Court for
the Southern District of New York, which transferred it to this Court on August 27, 2024. ECF
No. 6 (Transfer Order). On September 18, 2024, the Court granted Plaintiff’s application to
proceed in forma pauperis (“IFP”).1 Plaintiff’s initial Complaint named “John Doe, Brinks
Armored Truck Driver,” as the only defendant, provided an address for service in Richmond,
Virginia,2 and alleged that Plaintiff was harmed in Brooklyn. ECF No. 1 at 4 (Complaint).3
Plaintiff’s subsequent filings name “Mark Eubanks, CEO Brinks” as a defendant and assert that
he is “respondeat superior in this case.” ECF No. 17 at 5. Plaintiff has filed two amended
complaints in this action. ECF No. 13, 17 (Amended Complaints). For the reasons explained
herein, Plaintiff’s claim is dismissed.

1 Plaintiff has filed another motion for leave to proceed IFP. ECF No. 14. Because the
Court has already granted Plaintiff leave to proceed IFP, this new motion is moot.

2 This address, which appears to be a PO Box, appears in the Contacts tab on the website
for The Brink’s Company.

3 The Court refers to the pages assigned by the Electronic Case Filing System (“ECF”).
BACKGROUND
Plaintiff alleges that she was injured when an employee of The Brink’s Company
(“Brink’s”) hit her with the back of his truck, causing injuries. ECF No. 17 at 5 (Second
Amended Complaint). As already explained, in her initial Complaint, Plaintiff first named a

“John Doe” Brinks employee as a Defendant. ECF No. 1. On September 18, 2024, the Court
entered an Order granting Plaintiff leave to proceed IFP but identifying problems with Plaintiff’s
Complaint that would prevent the case from moving forward. ECF No. 9. The Court explained
that it could not issue a summons and direct service on a John Doe, that Plaintiff’s Complaint did
not provide a proper address for service on that individual, and that Plaintiff had not alleged facts
sufficient to support a finding that the Court had subject matter jurisdiction over the action. Id.
The Court gave Plaintiff 30 days to address these issues. Id.
After Plaintiff initially missed her deadline to respond to the Court’s Order, the Court sua
sponte allowed her additional time. On November 16, 2024, Plaintiff filed a letter on the docket
stating that “the new named defendant holding respondeat superior liable [sic], is Mark Eubank,

American Citizen and CEO of Brinks [sic] Company.” ECF No. 11. Plaintiff asserted that
“[t]he contact address shall remain the same.” Id. After reviewing Plaintiff’s letter, the Court
issued another Order on December 4, 2024, explaining to Plaintiff that: (1) Plaintiff’s initial
Complaint contained only an electronic signature and not a hand-written signature, as is required
in this district; (2) if Plaintiff wished to amend her Complaint to name an additional defendant
who was not previously named, she needed to file an amended complaint and identify the
specific factual allegations against each Defendant; (3) the address Plaintiff had provided for Mr.
Eubank in her letter was not a proper address at which the United States Marshals could
effectuate service; and (4) Plaintiff needed to provide the Court with information about all
Defendants’ state citizenship to allow the Court to determine whether it had subject matter
jurisdiction over her claim. ECF No. 12. The Court warned Plaintiff that this was her “final
chance to address the issues that the Court has identified.” Id.
On December 19, 2024, Plaintiff filed an Amended Complaint. ECF No. 13 (“First

Amended Complaint”). In her First Amended Complaint, she replaced the John Doe Defendant
with “Mark Eubanks, CEO, Brinks Inc.” Id. She stated that she was holding Mr. Eubanks4
“vicariously liable for the unjust actions of its employee” who allegedly hit her with his truck on
October 20, 2020. Id. at 5–6. She did not allege Mr. Eubanks’s individual citizenship but did
allege corporate citizenship as to Mr. Eubanks, claiming that as CEO of Brink’s, he is
incorporated under the laws of the State of Virginia, and has “its” principal place of business in
the State of Virginia. Id. at 5. Her factual allegations otherwise mirror those in her initial
Complaint. See generally id. She also attaches to her First Amended Complaint documents
describing her injuries. ECF No. 15. Her First Amended Complaint was again signed
electronically rather than by hand. ECF No. 13 at 8.

After reviewing her First Amended Complaint, the Court issued yet another Order
identifying for Plaintiff further issues with her Amended Complaint. ECF No. 16. The issues
identified by the Court were: (1) Plaintiff’s First Amended Complaint still did not provide a
proper service address for Mr. Eubanks; (2) Plaintiff signed her First Amended Complaint
electronically rather than by hand; (3) Plaintiff’s First Amended Complaint did not identify any

4 The case caption on Plaintiff’s First Amended Complaint listed the Defendant as “Mark
Eubanks” but throughout her First Amended Complaint, Plaintiff referred to the Defendant as
“Mark Eubank.” The Court’s understanding is that the CEO of Brinks is named Mark Eubanks,
as listed in Plaintiff’s case caption. See Mark Eubanks, President and Chief Executive Officer,
Brink’s, https://investors.brinks.com/management/mark-eubanks (last visited Feb. 13, 2025).
The Court will replace “Eubank” with “Eubanks” herein for ease of reference.
actions or omissions attributable to Mr. Eubanks; (4) Plaintiff needed to allege Mr. Eubanks’s
personal citizenship for diversity purposes; and (5) Plaintiff’s claim appeared to be outside the
three-year statute of limitations for personal injury actions in New York State. Id. The Court
warned Plaintiff that it was her “fourth and final chance to address the issues” identified by the

Court and that if she failed to respond to the Order and address the issues identified therein, her
case would be dismissed. Id. at 4.
Plaintiff filed a Second Amended Complaint on January 23, 2025. ECF No. 17. She also
filed a set of documents describing her injuries. ECF No. 18. Her Second Amended Complaint
is now signed by hand. ECF No. 17 at 8. The allegations contained in Plaintiff’s Second
Amended Complaint are otherwise unchanged from those in her First Amended Complaint. See
generally id. Plaintiff still states that she was injured on October 20, 2020, and does not identify
any actions or omissions attributable to Mr. Eubanks.
LEGAL STANDARD
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).5 “A claim is plausible ‘when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d
Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations
contained in the complaint are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. A pro se complaint “must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

5 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration
marks, emphases, footnotes, and citations are omitted.
(2007); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that, even after Twombly,
courts “remain obligated to construe a pro se complaint liberally”).
In addition to requiring sufficient factual matter to state a plausible claim for relief,
pursuant to Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must provide a short, plain

statement of claim against each named defendant so that they have adequate notice of the claims
against them. Iqbal, 556 U.S. 678 (Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.”). A pleading that only “tenders naked assertions devoid of
further factual enhancement” will not suffice. Id. To satisfy this standard, the complaint must, at
a minimum, “disclose sufficient information to permit the defendant to have a fair understanding
of what the plaintiff is complaining about and to know whether there is a legal basis for
recovery.” Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000).
Additionally, under 28 U.S.C. § 1915(e)(2)(B), a district court “shall” dismiss an action
where it is satisfied that the action “(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (ii) seeks monetary relief against a defendant who is immune

from such relief.” An action is “frivolous” when either “the factual contentions are clearly
baseless, such as when allegations are the product of delusion or fantasy,” or when “the claim is
based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141
F.3d 434, 437 (2d Cir. 1998).
DISCUSSION
To date, the only issue identified with Plaintiff’s submissions that Plaintiff has cured,
despite nearly five months of trying, is the issue related to hand-signing her Complaint. The
operative pleading in this action, Plaintiff’s Second Amended Complaint, names a single
Defendant, Mr. Eubanks. ECF No. 17. Again, the only address that Plaintiff provides for Mr.
Eubank is 1801 Bayberry Court in Richmond, Virginia, which is one of the mailing addresses
that appears on the Brink’s website for the corporation. Id. at 5. There is no indication in the
Second Amended Complaint that Brink’s has any operations at this location other than mail
delivery despite the Court identifying this specific issue for Plaintiff in multiple prior Orders.

See generally id.
In her Second Amended Complaint, Plaintiff again claims that Mr. Eubanks, as the CEO
of Brink’s, is “vicariously liable” for the “unjust actions” of an unknown employee, but she does
not identify any actions or omissions attributable to Mr. Eubanks despite the Court’s prior
warnings. Id. Plaintiff states that she was injured by an impact with a Brink’s armored truck on
October 20, 2020, “on the corner of the street in downtown Brooklyn,” but she does not identify
the location or the time of the accident or any other information that would allow for
identification of the specific truck and driver. Id. at 6. Plaintiff does not attach an accident
report to her Complaint. Although she asserts that “Mark Eubank[s], CEO, BRINKS, INC.” is a
corporation that “is incorporated under the laws of the State of Virginia, and has its principal

place of business in the State of Virginia,” id. at 5, she has not alleged that Mr. Eubanks, as an
individual, is domiciled in Virginia or can be reached by service of process at the Brink’s PO
Box address that she provides. And, despite having multiple opportunities to do so, Plaintiff has
not named Brink’s, the company, as a defendant.
The Court cannot determine that it has subject matter jurisdiction over Plaintiff’s claim
because Plaintiff has not plausibly alleged that Mr. Eubanks is a citizen of Virginia and thus
diverse from Plaintiff. Pursuant to 28 U.S.C. § 1332, “federal courts have subject matter
jurisdiction over state law claims where all plaintiffs and all defendants are of diverse citizenship
and the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs.” Pepentsev v. Ahmed, No. 19-cv-6898, 2020 WL 2797224, at *2 (E.D.N.Y. May 28,
2020); see also 28 U.S.C. § 1332. A plaintiff in federal court, “whether pro se or not, must
establish that the court has subject matter jurisdiction over the action.” Winkler v. Hirsch, No.
12-cv-3893, 2012 WL 3779295, at *1 (E.D.N.Y. Aug. 30, 2012). Despite the Court’s multiple

prior warnings, Plaintiff continues to suggest that the citizenship of Brink’s, a corporation, is the
relevant citizenship in determining whether the Court has jurisdiction over this action. Because
Plaintiff is suing Mr. Eubanks and not Brink’s, Mr. Eubanks’s citizenship is the only citizenship
relevant to the Court’s jurisdiction. See Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d
Cir. 2000) (an individual’s citizenship is not determined based on his place of business but rather
by his “domicile,” which is “the place where [he] has his true fixed home and principal
establishment, and to which, whenever he is absent, he has the intention of returning”).
Because federal courts are courts of limited jurisdiction, this Court may not hear
Plaintiff’s case if it lacks subject matter jurisdiction over the issues presented. See Lyndonville
Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000). Here, ignoring the

Court’s warnings, Plaintiff has not plausibly alleged that Mr. Eubanks is a citizen of Virginia,
and therefore the Court cannot satisfy itself that it has subject matter jurisdiction to hear
Plaintiff’s claim.6 Accordingly, Plaintiff’s claim must be dismissed. See, e.g., Butler v. Faraci,
No. 24-cv-36, 2024 WL 1282352, at *6 (E.D.N.Y. Mar. 26, 2024) (dismissing pro se plaintiff’s
claims where she failed to adequately allege defendants’ citizenship and brought her claims
under the court’s diversity jurisdiction); Lue v. JPMorgan Chase & Co., No. 21-892, 2022 WL
1146219, at *1 (2d Cir. 2022) (remanding case to the district court with directions to determine
whether it has diversity jurisdiction—and to dismiss the case if it determines that it does not—

6 Plaintiff has not, for example, provided the Court with a Virginia address for service on
Mr. Eubanks separate and apart from the Brink’s PO Box.
where pro se plaintiff’s allegations were insufficient to establish the individual defendants’
citizenship for diversity purposes).
Because Plaintiff is pro se, the Court notes for her benefit that, although it has not
dismissed the case on these grounds, as the Court has warned Plaintiff, her claim is time-barred.

The statute of limitations for personal injury actions in New York State is three years. N.Y.
C.P.L.R. § 214(5); see also Kane v. Mount Pleasant Cent. Sch. Dist., 80 F.4th 101, 104 (2d Cir.
2023) (explaining that New York’s statute of limitations for personal injury actions is three
years). “Sua sponte dismissal” “is appropriate . . . where the existence of an affirmative defense,
such as the statute of limitations, is plain from the face of the pleading. Kelly v. Florence, No.
24-cv-2279, 2024 WL 5089769, at *10 (S.D.N.Y. Dec. 11, 2024) (citing cases); see also Ross v.
Cavalry Portfolio Servs., LLC, 701 F. Supp. 3d 211, 223 (E.D.N.Y. 2023) (“[A] court may raise
a statute of limitations defense sua sponte when the facts supporting the statute of limitations
defense are set forth in the papers plaintiff himself submitted.”), aff'd, No. 23-7861, 2024 WL
4404043 (2d Cir. Oct. 4, 2024); Khalil v. Pratt Inst., 818 F. App’x 115, 116 (2d Cir. 2020) (“A

complaint that is time-barred fails to state a claim on which relief may be granted, . . . and a
district court may sua sponte dismiss a complaint as time-barred where the facts supporting the
statute of limitations defense are set forth in the papers plaintiff himself submitted.”). Here,
Plaintiff’s own pleadings assert unequivocally that her alleged injury occurred on October 20,
2020. Plaintiff did not file her initial Complaint until July 30, 2024, more than three years after
the alleged injury occurred. ECF No. 1. Accordingly, Plaintiff’s claim falls outside of the
statute of limitations and may be dismissed as time-barred.
“Leave to amend, though liberally granted, may properly be denied for,” among other
reasons, “repeated failure to cure deficiencies by amendments previously allowed.” Ruotolo v.
City of New York, 514 F.3d 184, 191 (2d Cir. 2008). Here, the Court has already allowed
Plaintiff to amend her complaint twice to address the issues identified herein, but neither
amendment has adequately addressed these fundamental problems with her claim. Accordingly,
Plaintiff’s claim is dismissed without leave to amend. See, e.g., Hunt v. Consol. Edison Co., No.

18-cv-7262, 2021 WL 3492716, at *8 (E.D.N.Y. Aug. 9, 2021) (dismissing plaintiff’s claims
without leave to amend after plaintiff had failed to correct the deficiencies identified by the court
“after two opportunities to do so”).
CONCLUSION
For the reasons set forth herein, this action is dismissed without prejudice. The Clerk of
Court is respectfully directed to enter judgment, to close this action, and to mail a copy of this
Order to the pro se Plaintiff and to note the mailing on the docket. The Court certifies pursuant
to 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 any appeal. See Coppedge v. United States, 369
U.S. 438, 444–45 (1962).

SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge

Dated: Brooklyn, New York
February 14, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10800816. Public record. Not legal advice.