The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION
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."
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.
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 ...