The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Pro se plaintiff Alfredo Rodriguez ("plaintiff" or "Rodriguez") brought the above-captioned lawsuit, on behalf of himself and his mother, Emilia Rodriguez, against the above-captioned defendants, including Safety National Casualty Corporation ("SNCC"), in connection with the failure to return certain bail money, posted by plaintiff's mother and another party as collateral in connection with a prosecution of plaintiff in State of New York, Suffolk County.
Defendant SNCC now moves for an order dismissing plaintiff's Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction. For the reasons set forth herein, defendant's motion is granted and the lawsuit is dismissed against SNCC, as well as the other defendants, for lack of subject matter jurisdiction.
The following facts are taken from the Amended Complaint ("Amended Compl."), as well as the documents attached to the initial Complaint ("Compl."),*fn1 and are not findings of fact by the Court, but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiff, the non-moving party.
Pro se plaintiff alleges, in relevant part, the following:
On or before June 2003, Suffolk County Court, Honorable Michael F. Mullen, (SCJ) issued cash or bond bails upon the principal-plaintiff*fn2 amounting to $50,000.00 under case number 0668-98. On or about September 22, 2003, the plaintiffs made contact with the Agents and discussed the criterion for Bail Bond. The Agents and the Plaintiffs agreed to a total cash deposit of approximately $22,500.00 dollars for the bond and release of the Principal-plaintiff. The Principal-plaintiff contacted a friend named Mickey Forde (who he met while awaiting trial at the Riverhead, Suffolk County Jail) and asked him for a loan to assist in the cash bond deposit. He consulted with his father, Mr. Hal W. Forde, who agreed to a $5,000.00 loan in which the principal was obligated to pay back. Thus, the basis for Mr. Forde's deposit of a $9,000.00 check. On or about September 29, 2003 the principal was released to the bond and was required to affix his signature to an 'Indemnity Agreement for surety bail-bond and an 'Assuming Specific Obligation' was had before the Agents. Pursuant to this Bond, those obligations and conditions were met on December 1, 2003, when he surrendered to the State court for re-sentencing. On or before the issuance of a second bail-bond ordered the New York State Supreme Court, Second Judicial Department, Appellate Division for $75,000.00. The Plaintiffs again engaged in dialog [sic] with Daniel Stewart, Jr., from the Jaddie R. Stewart Bail-Bond Agency. An agreement was made to have the first bond, and the returnable cash deposits, consolidated with the current bond with an additional posted cash of $9,000.00 dollars. Mrs. Rodriguez, in fact, handed the defendants an additional $9,000.00 dollars. On or about February 4, 2004 the Principal was released to the bond and was required to affix his signature to an 'Indemnity Agreement for surety bail-bond and an "Assuming Specific Obligation' was had before the Agents. Pursuant to this Bond, those obligations and conditions were met on August 9, 2006, when he surrendered to the State court for re-sentencing. (Amended Compl. ¶¶ 5-12) (footnotes omitted). Although all of the details of this dispute are unclear, it appears from the allegations in the Amended Complaint and the numerous documents accompanying the initial Complaint that Emilia Rodriguez ("Ms. Rodriguez"), who is plaintiff's mother, engaged the services of a bail bondsman, identified in the Amended Complaint as Jaddie Stewart Agency (the "Agency"), to post a bail bond and obtain plaintiff's release. More specifically, it is alleged that Ms. Rodriguez and another party, Hal Forde, deposited cash collateral for two bail bonds -- one for the underlying criminal case, and the second for bail pending appeal before the Appellate Division, Second Department. Based upon the bail bonds obtained by Ms. Rodriguez and Mr. Forde, plaintiff was released from custody. There is no allegation that plaintiff violated the terms of his release such that there was any forfeiture as to the subject collateral. Instead, it appears that a dispute developed after plaintiff surrendered for re-sentencing, thereby satisfying his bail conditions. In particular, it appears from the documentation supplied by plaintiff that defendants have taken the position that the money has already been returned. (Compl., at 25.)
Plaintiff now seeks monetary damages in connection with the approximately $31,500 in bail money from the state court actions that allegedly is wrongfully being withheld by the defendants.
On January 3, 2008, plaintiff Alfredo Rodriguez filed the instant action. On March 20, 2008, defendant SNCC requested a pre-motion conference in connection with its proposed motion to dismiss for lack of jurisdiction. On March 28, 2008, plaintiff requested the opportunity to file an amended complaint and, on April 3, 2008, the Court granted that request. On April 14, 2008, plaintiff withdrew the request to file an amended complaint. On April 21, 2008, defendant SNCC filed its motion to dismiss for lack of jurisdiction. On May 8, 2008, plaintiff requested the opportunity to file an amended complaint. On May 27, 2008, the Court conducted a telephonic conference during which the jurisdictional issues were discussed, and a new briefing schedule for the motion to dismiss was set. On June 25, 2008, plaintiff filed the Amended Complaint which, among other things, added Emilia Rodriguez as a plaintiff. On July 14, 2008, defendant SNCC renewed its motion to dismiss. Plaintiff did not respond to that motion. The Court has fully considered the submissions of the parties.
The defendant has moved to dismiss both under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In reviewing a motion to dismiss under Rule 12(b)(1), the court "must accept as true all material factual allegations in the complaint, but we are not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004) (citation omitted). Moreover, the court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." Id. (citations omitted). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). The Court may also raise the issue of subject matter ...