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RENE v. CITIBANK NA

January 11, 1999

JEAN RENE AND BRIGITTE RENE, HIS WIFE, PLAINTIFFS
v.
CITIBANK NA, ZEICHNER, ELLEMAN & KRAUSE, OCI MORTGAGE CORPORATION, AND GLENN L. STEPHENSON, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge

                           MEMORANDUM OF DECISION
                                 AND ORDER

In a Memorandum of Decision and Order dated March 21, 1998, this Court dismissed the plaintiffs' first amended complaint pursuant to Fed.R.Civ.P. 8, without prejudice and with leave to file a second amended complaint, after finding that the first amended complaint was "prolix, confusing and argumentative."

I. BACKGROUND

The following facts are taken from plaintiffs' Complaint. The plaintiffs assert that on or about August 18, 1988, Citibank approved them for a loan, to purchase a home, in the sum of $139,500.00, at an interest rate of 11.375%. On August 18, 1988 the plaintiffs went to closing on the house and signed a mortgage agreement with Citibank. At an unspecified time thereafter, OCI and Stephenson purchased the plaintiffs' mortgage from Citibank. On August 18, 1996, OCI and Stephenson commenced eviction and foreclosure proceedings against the plaintiffs for failure to make payments "at the sixth district court of Suffolk." On July 23, 1997, the plaintiffs were forcibly removed from their home.

The Complaint includes claims against the defendants, both individually and collectively, under the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., 42 U.S.C. § 1983, and related state law claims for common-law fraud, usury and breach of contract. The plaintiffs allege that: (1) Citibank breached the mortgage agreement by failing to lend "lawful money of the United States"; (2) that Citibank perpetrated a fraud by lending such unlawful monies; (3) that by creating this unlawful debt Citibank has engaged in the collection of usurious interest rates, and racketeering activity, including mail and wire fraud; and (4) that Stephenson and OCI "unlawfully" created a debt by purchasing the Citibank mortgage and, in violation of the plaintiffs' 14th Amendment rights, forcibly removed the plaintiffs from their home. As far as the Court can discern, the plaintiffs assert no claims against ZEK.

II. DISCUSSION

A. The Plaintiffs' Pro Se Status

In addressing the defendant's motion, the Court is mindful that the plaintiffs are proceeding pro se and that their submissions should be held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)); Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (citations omitted). The Court recognizes that it must make reasonable allowances so that these pro se plaintiffs do not forfeit their rights by virtue of their lack of legal training. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). However, the plaintiffs' pro se status does not "exempt [them] from compliance with relevant rules of procedural and substantive law." Id. (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).

B. ZEK's Motion to Dismiss

Fed.R.Civ.P. 8(a) requires a plaintiff to set forth in the complaint a "short and plain statement of the claim showing that the [plaintiff] is entitled to relief." The complaint must at least "sufficiently appraise a defendant of the charges asserted against it." Humpherys v. Nager, 962 F. Supp. 347, 351 (E.D.N.Y. 1997) (quoting Gould v. Russi, 830 F. Supp. 139, 143 (N.D.N.Y. 1993)). As noted above, a review of the Complaint reveals that the defendant ZEK is mentioned only once: in the caption. "The complaint does not provide any facts to indicate how [ZEK] could have injured [the plaintiffs]. `The courts have consistently held that, where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.'" Humpherys v. Nager, 962 F. Supp. at 351 (quoting Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y. 1981) [granting 12(b)(6) motion to dismiss where defendant was named only in caption and noting that complaint fails to meet standard of Fed.R.Civ.P. 8(a)]). Since apparently no claims are raised against the defendant ZEK, the Complaint fails to meet the minimal threshold of notice pleading established by Rule 8, and the firm's motion to dismiss the Complaint, as against it, is granted.

  C. The Defendants' Rule 12(b)(1) Motions to Dismiss for Lack of Subject
     Matter Jurisdiction: The Standard

All of the defendants move to dismiss the Complaint pursuant to Rule 12(b)(1) on the ground that this Court lacks subject matter jurisdiction. Federal subject matter jurisdiction exists only when a "federal question" is presented under 28 U.S.C. § 1331, or, as provided in 28 U.S.C. § 1332, where the plaintiffs and all the defendants are of diverse citizenship and the amount in controversy exceeds $75,000. Where jurisdiction is lacking, the district court must dismiss the Complaint without regard to the merits of the lawsuit. Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996). Here, the plaintiffs assert that federal subject matter jurisdiction is predicated on federal question and diversity jurisdiction.

"In considering motions to dismiss for want of subject matter jurisdiction, the Court must accept as true all material factual allegations in the Complaint and refrain from drawing inferences in favor of the party contesting jurisdiction." Serrano v. 900 5th Ave. Corp., 4 F. Supp.2d 315, 316 (S.D.N.Y. 1998) (citing Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)). The district court, however, is not merely confined to the four corners of the Complaint. "On a motion under Fed.R.Civ.P. 12(b)(1) challenging the district court's subject matter jurisdiction, the court may ...


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