UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
April 12, 2006
CARMEN MILEY, PLAINTIFF,
DR. SIMON SAADA, DR. NORMAN SAFFRA, DR. MARIA REINES, JOHN DOE (1-12), DEFENDANTS.
The opinion of the court was delivered by: Joseph F. Bianco, District Judge
MEMORANDUM AND ORDER
This matter was reassigned to the undersigned from the Honorable Carol B. Amon on February 10, 2006. For the reasons that follow, the Court directs plaintiff to show cause by written affirmation within thirty (30) days of the date of this Order why the instant action should not be dismissed for lack of subject matter jurisdiction.
Plaintiff, a New York resident, filed the instant fee-paid action pro se on April 29, 2005, alleging that defendants' actions caused her to be wrongfully terminated by her employer-Victory Memorial Hospital in Brooklyn, New York. (Compl. ¶¶ 10-12.) Plaintiff asserted causes of action pursuant to Title VII of the Civil Rights Act (hereinafter "Title VII") and the Age Discrimination in Employment Act of 1967 (hereinafter "ADEA"). By order dated June 9, 2005, the Court directed plaintiff to file an amended complaint within thirty (30) days. (Miley v. Saada, et al., No. 05-CV-2481 (CBA), slip op. at 5 (E.D.N.Y. June 9, 2005)). The Court held that in order to pursue her causes of action, she must (1) name her employer, not her former colleagues, as defendant, and (2) submit a "right-to-sue" notice issued by the Equal Employment Opportunity Commission. (Id., slip op. at 3-6). The Court warned plaintiff that if she failed to amend her complaint as directed, her action would be dismissed without prejudice. (Id., slip op. at 6).
Subsequent to the Court's order, plaintiff retained counsel, and on August 18, 2005, plaintiff's counsel submitted an amended complaint. On April 11, 2006, defendants Saada, Saffra and Reinis filed answers to the amended complaint.*fn1
The amended complaint is virtually identical to the original complaint.*fn2 Plaintiff does not name her former employer as defendant, nor does she submit a right to sue letter as directed by the Court. The only significant amendment to the original complaint is that plaintiff alleges that defendant Saada is a resident of New Jersey*fn3 and that defendant Saffra is a resident of Connecticut.*fn4 (Am. Compl. ¶¶ 6-7). Plaintiff does not allege the citizenship of defendant Reinis.
The amended complaint does not specifically state that plaintiff is abandoning her claims pursuant to Title VII and the ADEA. However, by not complying with the Court's prior order and alleging the non-New York residency of two of the three named defendants, it appears that plaintiff has withdrawn her Title VII and ADEA causes of action and invokes this Court's jurisdiction pursuant to the diversity statute-28 U.S.C. § 1332-raising tort claims based on slander and intentional infliction of emotional distress. (See Am. Compl. ¶ 1).
Pursuant to § 1332, federal jurisdiction is available when plaintiff and defendant are of diverse citizenship and the amount in controversy exceeds $75,000. However, "diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff." (Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (emphasis in original)). As plaintiff fails to allege the residency of defendant Reinis, it is unclear whether complete diversity of citizenship exists between plaintiff and each of the defendants. (See Int'l Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 391 (2d Cir. 1989) (failure to plead complete diversity is fatal to an assertion of diversity jurisdiction)).
Furthermore, plaintiff does not specify the amount of damages she seeks. "A party invoking the jurisdiction of the federal court has the burden of proving that it appears to a `reasonable probability' that the claim is in excess of the statutory jurisdictional amount." (Chase Manhattan Bank, N.A. v. Am. Nat'l Bank and Trust Co. of Chicago, 93 F.3d 1064, 1070 (2d Cir. 1996) (quoting Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994))). Additionally, "with mounting federal case loads, . . . it has become doubly important that the district courts take measures to discover those suits which [do not belong in a federal court] and to dismiss them when the court is convinced to a legal certainty that the plaintiff cannot recover an amount in excess of the [the minimum statutory jurisdictional amount.]" (Tongkook, 14 F.3d at 784 (quoting Deutsch v. Hewes St. Realty Corp., 359 F.2d 96, 98 (2d Cir. 1996)) (parenthetical in original)). Accordingly, plaintiff's amended complaint does not satisfy the amount in controversy requirement of § 1332.
Nevertheless, the Court affords plaintiff an opportunity to establish that it has jurisdiction over her complaint. Plaintiff is hereby directed to show cause, by written affirmation, within thirty (30) days of the date of this order why the Court should not dismiss her complaint for lack of subject matter jurisdiction. As described above, if plaintiff wishes to proceed under the diversity statute, she must establish that complete diversity exists between the parties and that "recovery in excess of [$75,000] is reasonably possible." (Chase Manhattan Bank, 93 F.3d at 1070 (quotations omitted)). All further proceedings shall be stayed for thirty (30) days or until plaintiff has complied with this Order. If plaintiff fails to show cause within the time allotted, plaintiff's action shall be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. (Coppedge v. United States, 369 U.S. 438, 444-45 (1962)).