Lehman claims that the comments made by Kornblau and the narrator were
false because he had been acquitted of all criminal charges brought
against him. The complaint alleges that at the time Kornblau made her
comments for the television program, she knew that Lehman had been
acquitted. The complaint further alleges that because the ultimate
disposition of the charges against Lehman were public knowledge, the
Learning Channel and Discovery willfully disregarded the truth or failed
to take the most elementary steps to ascertain the true facts.
Accordingly, Lehman contends that these statements were made willfully,
maliciously, and with a reckless disregard for the truth. The complaint
alleges that, therefore, the comments by Kornblau and the narrator of the
program constitute libel and slander. In addition, Lehman asserts that the
program and its broadcast caused damage to the plaintiffs good name and
reputation and caused him to suffer emotional distress.
The complaint raises two causes of action. The first cause of action
alleges that the conduct of the defendants constitutes common law libel
and slander, which allegedly violates 28 U.S.C. § 1337. The second
cause of action alleges that the plaintiff was deprived of his good name
and reputation without due process of law in violation of the Fourteenth
Amendment and 42 U.S.C. § 1983.
The County defendants move to dismiss the complaint on the ground that
the Court lacks federal subject matter jurisdiction over the action. They
argue that 28 U.S.C. § 1337 does not provide litigants with a cause
of action but, rather, provides federal subject matter jurisdiction in
certain cases. In addition, the County defendants contend that harm to
one's reputation does not give rise to a cause of action under Section
A. The Standard
When considering a motion to dismiss the complaint for lack of subject
matter jurisdiction, pursuant to Rule 12(b)(1), the Court may consider
affidavits and other materials beyond the pleadings to resolve the
jurisdictional question. See Robinson v. Gov't of Malaysia, 269 F.3d 133,
141 n. 6 (2d Cir. 2001); Antares Aircraft, L.P. v. Fed. Rep. of Nigeria,
948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215,
112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); Exch. Nat'l Bank of Chicago v.
Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir. 1976). Under Rule
12(b)(1), the court must accept as true all material factual allegations
in the complaint but will not draw inferences favorable to the party
asserting jurisdiction. See Shipping Fin. Servs. Corp. v. Drakos,
140 F.3d 129, 131 (2d Cir. 1998); Atl. Mut. Ins. Co. v. Balfour Maclaine
Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). Hearsay statements
contained in affidavits may not be considered. See Kamen v. AT&T,
791 F.2d 1006, 1011 (2d Cir. 1986).
In addition, the Court is mindful that Lehman's pro se status means
that his 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, 176, 66 L.Ed.2d 163 (1980) (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 a pro
se plaintiff does not forfeit rights by virtue of his lack of legal
training. See Traguth v. such, 710 F.2d 90, 95 (2d Cir. 1983). Indeed,
courts should "read the pleadings of a pro se plaintiff liberally
and interpret them "to raise the strongest arguments that they suggest."
McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the Court is
also aware that pro se status "does not exempt a party from compliance
with relevant rules of procedural and substantive law.'" Traguth, 710
F.2d at 95 (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).
B. Subject Matter Jurisdiction
Federal subject matter jurisdiction exists when a federal question is
presented to the Court, see 28 U.S.C. § 1331, or the plaintiff and all
of the defendants are citizens of different states and the amount in
controversy exceeds $75,000, see 28 U.S.C. § 1332. Where subject
matter jurisdiction is lacking, the district court must dismiss the
complaint without regard to the merits of the lawsuit. See Nowak v.
Ironworker, Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996).
Lehman asserts that federal subject matter jurisdiction is predicated
upon diversity and federal question jurisdiction, and the Court will
address each basis for jurisdiction in turn.
1. Diversity Jurisdiction
Diversity jurisdiction exists where there is a suit between citizens of
different states, and the amount in controversy exceeds $75,000. See
28 U.S.C. § 1332; Advani Enters., Inc. v. Underwriters at Lloyds,
140 F.3d 157, 160 (2d Cir. 1998). For a district court to have diversity
jurisdiction, there must be complete diversity of citizenship, see
Advani, 140 F.3d at 160, which means that no plaintiff is a citizen of
the same state as any defendant. See Cresswell v. Sullivan &
Cronwell, 922 F.2d 60, 68 (2d Cir. 1990); see also Herrick Co., Inc. v.
SCS Communications, Inc., 251 F.3d 315, 322 (2d Cir. 2001) (finding it
axiomatic that "diversity jurisdiction is available only when all adverse
parties to a litigation are completely diverse in their citizenships").
Here, Lehman is a citizen of New York. Although the Learning Channel and
Discovery are alleged to be citizens of Maryland, Kornblau and the County
of Nassau are citizens of New York. Accordingly, complete diversity of
citizenship does not exist, and this Court does not have subject matter
jurisdiction based on diversity.
2. Federal Question Jurisdiction
Federal question jurisdiction exists when an action "aris[es] under the
Constitution, laws, or treaties of the United States."
28 U.S.C. § 1331. The Second Circuit has held that, in determining
whether federal question jurisdiction exists, the Court should not
consider whether the plaintiff could recover on his claims. See Town of
West Hartford v. Operation Rescue, 915 F.2d 92, 100 (2d Cir. 1990)
(citations omitted). "Instead, the test is whether "the cause of action
is so patently without merit as to justify . . . the court's dismissal
for want of jurisdiction.'" Id. (quoting Hagans v. Lavine, 415 U.S. 528,
542-43, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974)). Consequently, a federal
question claim should only be dismissed for lack of subject matter
jurisdiction if it is" "so insubstantial, implausible, foreclosed by
prior decisions of this Court, or otherwise completely devoid of merit as
not to involve a federal controversy." Id. (quoting Oneida Indian Nation
v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73
(1974)). Further, a court properly assumes subject matter jurisdiction
over a lawsuit if the federal claim is colorable. See Savoie v. Merchants
Bank, 84 F.3d 52, 57 (2d Cir. 1996).
a. The First Cause of Action
Lehman's first cause of action alleges libel and slander against all of
defendants and is brought pursuant to 28 U.S.C. § 1337. Section 1337
provides, in relevant part:
(a) The district courts shall have original
jurisdiction of any civil action or proceeding arising
under any Act of Congress regulating commerce or
protecting trade and commerce against restraints and
This Section confers jurisdiction in particular cases but does not in and
of itself create a federal cause of action. See Colorado Labor Council,
AFL-CIO v. American Federal of Labor and Congress of Indus.
Organizations, 481 F.2d 396, 400 (10th Cir. 1973); B.F. Goodrich Co. v.
Northwest Indus., 424 F.2d 1349 (3d Cir. 1970); see also IIT v. Vencap,
Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (stating that Section 1337
confers jurisdiction "over actions arising under an Act of Congress
regulating trade and commerce against restraint and monopolies" when "the
Act of Congress does not have its own jurisdiction conferring
provision"). As such, Lehman does not allege an action "arising under the
Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331
by asserting that the defendants violated 28 U.S.C. § 1337.
Moreover, the complaint does not satisfy the requirements of Section
1337 SO that the Court could acquire jurisdiction pursuant to that
statute. To invoke federal jurisdiction under Section 1337, a complaint
must state a claim arising under a federal act regulating commerce. See
Carlson v. Coca-Cola Co., 483 F.2d 279-280 (9th Cir. 1973); see also
Vencap, 519 F.2d at 1015; Zimmerman v. Conrail, 550 F. Supp. 84, 85-86
(S.D.N.Y. 1982) (holding that § 1337(a) does not confer federal
subject matter jurisdiction when the federal statute regulating commerce
is only tangentially related to the cause of action, i.e., it governs the
defendant's day-to-day operations but does not provide the basis for the
cause of action). However, here, Lehman does not mention a federal act
regulating commerce in connection with his first cause of action. Nor
does the complaint artfully plead what is actually a claim arising under
a federal act regulating commerce. See Davis v. North American Van
Lines, 934 F. Supp. 245, 248 (S.D.Tex. 1996) (holding that a claim may
arise under a federal act regulating commerce even if that act is not
specifically mentioned in the complaint). Cf. Russo v. Kirby, 453 F.2d 548,
551 (2d Cir. 1971) ("Jurisdiction under § 1337 does not attach on the
bare assertion that a right under an act regulating commerce is
infringed. Facts must be alleged to show that federal law in the
particular case creates a duty or remedy."). Rather, he alleges the common
law torts of libel and slander. Moreover, even assuming that the
operations of some of the defendants are governed by federal acts
regulating commerce, that fact is insufficient to satisfy Section 1337.
See Zimmerman, 550 F. Supp. at 85-86. Accordingly, Section 1337 cannot
provide this Court with federal subject matter jurisdiction over Lehman's
In sum, the Court grants the motion by the County defendants to dismiss
the first cause of action as against them on the ground that the Court
lacks subject matter jurisdiction over the claim.
b. The Second Cause of Action
As a second cause of action, Lehman alleges that he "was subjected to
loss of property, i.e. his good name and reputation in violation of
42 U.S.C. § 1983 and the [F]ourteenth [A]mendment to the
Constitution" as a result of the defendants' conduct in producing and
airing the television program "World's Most Outstanding Undercover
Stings". It is well established that damage to one's reputation is not
itself sufficient to invoke the procedural protection of the Due Process
Clause." Paul v. Doris, 424 U.S. 693, 701, 96 S.Ct. 1155, 1161, 47
L.Ed.2d 405 (1976); see Doe v. Dept. of Public Safety, 271 F.3d 38, 47
(2d Cir. 2001); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994).
Rather, to sufficiently plead a Section 1983 claim for a violation of the
Due Process Clause, a plaintiff who complains of governmental defamations
must show "(1) the utterance of a statement about him or her that is
sufficiently derogatory to injure his or her reputation, that is capable
of being proved false, and that he or she claims is false, and (2) some
tangible and material state-imposed burden or alteration of his or her
status or of a right in addition to the stigmatizing statement." Doe, 271
F.3d at 47 (citing Paul, 424 U.S. at 701-02, 710-11, 96 S.Ct. 1155).
Thus, where a plaintiff alleges damage to his reputation, "stigma plus"
is required to establish a constitutional deprivation. See Doe, 271 F.3d
at 47; Valmonte, 18 F.3d at 999.
Here, Lehman's allegations do not rise to the level of a constitutional
deprivation because he claims only that the defendant's conduct deprived
him of his good name and reputation. The complaint does not refer to the
termination of government employment or the deprivation of some other
legal right or status. See Paul, 424 U.S. at 701, 96 S.Ct. at 1160.
Although Lehman mentions the word "property' his examples of "property"
include only his good name and reputation. Accordingly. the second cause
of action fails to pass the "stigma plus" test. See Paul, 424 U.S. at
701-02, 710-11, 96 S.Ct. at 1160; Doe, 271 F.3d at 47, Valmonte, 18 F.3d
Moreover, the Court finds that Lehman s Section 1983 claim for the
deprivation of due process based on his reputation is "so patently
without merit as to justify . . . the court's dismissal for want of
jurisdiction." Operation Rescue, 915 F.2d at 100. Indeed, the claim is
foreclosed by the well-established rule set forth by the Supreme Court
and reiterated by the Second Circuit, that reputation alone, "apart from
some more tangible interests such as employment," is not "sufficient to
invoke the procedural protection of the Due Process Clause." Paul, 424
U.S. at 701, 96 S.Ct. at 1161; Doe, 271 F.3d at 47; Valmonte, 18 F.3d at
999. Accordingly, Lehman's second cause of action does not set forth a
colorable federal claim against the County defendants, and the Court
grants the motion by the those defendants to dismiss that cause of action
as against them on the ground that the Court lacks the subject matter
jurisdiction necessary to entertain it.
Based on the foregoing, it is hereby
ORDERED, that the motion by Kornblau and Nassau County to dismiss the
complaint as against them pursuant to Rule 12(b)(1) of the Fed.R.Civ.P.
is GRANTED; and the complaint is DISMISSED as against those defendant;
and it is further
ORDERED, that the Clerk of the Court is directed to amend the caption
of the complaint to read as follows:
and it is further
ORDERED, that the parties are directed to report to United States
Magistrate Judge William D. Wall forthwith to set a schedule for
© 1992-2003 VersusLaw Inc.