Evans v. Jones

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IVAN N. EVANS, Plaintiff, 24-CV-6015 (LTS) -against- ETHANIEL JONES; JOHN DOE, ASSET ORDER OF DISMISSAL PROTECTION; MACY’S DEPARTMENT WITH LEAVE TO REPLEAD STORE, Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is currently detained in Westchester County Jail and is appearing pro se, brings this action asserting claims for negligence. By order dated September 24, 2024, 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 the action for lack of subject matter jurisdiction.

STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon 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), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).

BACKGROUND The following facts are drawn from Plaintiff’s complaint. Plaintiff’s sole allegation is that he suffered “an assault due to negligent security.” (ECF 1 at 5.) He does not provide any information about when or where this occurred.

Plaintiff sues Macy’s Department Store, Inc., Asset Protection Captain Ethaniel Jones, and “John Doe” Asset Protection Associate. Plaintiff seeks damages and states that his “right forearm is broken.” (Id. at 4.)

DISCUSSION A. Subject Matter Jurisdiction 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 & Com. 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 . . . .”).

Federal Question Jurisdiction 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)). Merely invoking federal jurisdiction, without pleading 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).

Here, Plaintiff invokes “negligence” as the legal basis for his claims. The Court surmises from Plaintiff’s allegations that he may have suffered physical injuries at the hands of asset protection employees at Macy’s department store, though Plaintiff does not include facts about what occurred. Negligence is a claim arising under state law, not federal law. As such, Plaintiff’s claim for negligence does not provide a basis for federal question subject matter jurisdiction in this court.

Diversity Jurisdiction Plaintiff also does not allege facts demonstrating that the Court has diversity jurisdiction of 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). For diversity purposes, an individual is a citizen of the State where he “has his true fixed home . . . and to which, whenever he is absent, he has the intention of returning.”

Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). A corporation is a citizen of both the State where it is incorporated and the State where it has its principal place of business.

Hertz Corp. v. Friend, 559 U.S. 77, 93 (2010). In addition, the plaintiff must allege to a “reasonable probability” that the claim is in excess of the sum or value of $75,000, 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).

Plaintiff does not plead facts about the citizenship of the parties. Plaintiff provides a mailing address for himself at Westchester County Jail in New York but does not plead facts about the State where he is domiciled. Plaintiff lists addresses for Defendants in Yonkers, New York, where they work. (ECF 1 at 3.) He does not plead facts about where the individuals are domiciled, and does not plead facts about where Defendant Macy’s Department Store, Inc., is incorporated and has its headquarters. Plaintiff thus fails to meet his burden of demonstrating that the Court has diversity jurisdiction of this action.

B. Leave to Amend Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects unless amendment 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). Moreover, a district court generally should allow a pro se plaintiff an opportunity to amend a complaint in order “to drop dispensable nondiverse defendants whose presence would defeat diversity of citizenship.” Jaser v. New York Prop. Ins. Underwriting Ass’n, 815 F.2d 240, 243 (2d Cir. 1987).

The Court therefore grants Plaintiff leave to file an amended complaint in this Court, if he chooses to do so rather than proceeding in a state court of general jurisdiction, if he can allege facts showing that the federal court has subject matter jurisdiction of this action.

If Plaintiff chooses to file an amended complaint in this action, the Court further directs Plaintiff to allege facts about what each defendant named in the amended complaint did or failed to do that violated Plaintiff’s rights. If Plaintiff files an amended complaint, it should include: a) the names and titles of all relevant people; b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred; c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.

Essentially, Plaintiff’s amended complaint should tell the Court: who violated his rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief.

If Plaintiff does not file an amended complaint within the time allowed, the Court will direct the Clerk of Court to enter judgment dismissing this action for lack of subject matter jurisdiction in federal court.

CONCLUSION Plaintiff’s complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed for lack of subject matter jurisdiction, with 60 days’ leave to replead. See Fed. R. Civ. P. 12(h)(3).

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 Court directs the Clerk of Court to hold this matter open on the docket until a civil judgment is entered.

SO ORDERED.

Dated: January 13, 2025 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge