Melendez v. Woloshky

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS __________________________________________ )

VICTOR L. MELÉNDEZ, )

Plaintiff, ) ) v. ) Civil Action No. ) 21-11291-IT

FRANCES E. VIERA RODRIGUEZ, )

CARMEN M. RODRIGUEZ, )

BRISTOL SUPERIOR DISTRICT COURT, )

D.A. THOMAS QUINN, and )

NICOLAS ATHANASSIOU, )

Defendants. ) __________________________________________)

ORDER DISMISSING CASE WITHOUT PREJUDICE

September 3, 2021

TALWANI, J.

This action is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 12(h)(3) for lack of subject matter jurisdiction. This court has an independent obligation to inquire sua sponte into its own subject matter jurisdiction. McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Here, after examining the Amended Complaint [5], the court discerns no plausibly pleaded federal claims. Plaintiff Victor L. Meléndez asserts federal question jurisdiction under 28 U.S.C. § 1331, contending that “(1) using of documents social security number or birth certif[icate] (2) is order v[iol]ation of federal law such as fraud” Am. Compl. 3. In the Civil Cover Sheet, Meléndez states the cause of action is “18 U.S.C. [I]dentity theft and Fraud using documents personal and fraud.” Civil Cover Sheet [#5-1]. Although identity theft is prohibited by federal criminal law, see 18 U.S.C. § 1028, there is no private right of action allowing an individual to sue for identity theft under that statute. Chaturvedi v. Siddharth, CV 20-11880-FDS, 2021 WL 664129, at *2 n.3 (D. Mass. Feb. 19, 2021) (citing Garay v. U.S. Bancorp, 303 F. Supp. 2d 299, 302–03 (E.D.N.Y. 2004)). There is therefore no subject matter jurisdiction over such a claim. There being no plausibly pleaded federal claims, the court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). While the Court takes no position as to the merits or viability on any potential state law claims, this Order does not preclude Meléndez from filing in an appropriate state forum. No filing fee is assessed, and all pending motions are DENIED as MOOT. The Clerk is directed to enter a separate order of dismissal.

So Ordered. /s/ Indira Talwani

INDIRA TALWANI

Dated: September 3, 2021 United States District Judge