The opinion of the court was delivered by: Conner, Senior D.J.
Pro se plaintiff Nitza Keane brings this action against defendant Frank M. Keane to recover damages arising out of defendant's transfer of certain property immediately prior to the parties' divorce. Defendant now moves to dismiss the claims against him pursuant to FED. R. CIV. P. 12(b)(1) and 12(b)(6). For the following reasons, defendant's motion is granted.
Plaintiff alleges the following in her Second Amended Complaint.*fn1
Plaintiff, a citizen of New York, and defendant, a citizen of Connecticut, were divorced pursuant to a "final Order and Decision" issued in July 2003. (2d Am. Complt. ¶¶ II.C, III.B.) In October 2008, plaintiff learned that, in anticipation of the divorce proceeding, defendant fraudulently sold two pieces of property in Nyack, New York, and that those sales deprived plaintiff of her right to an equitable distribution of those properties in the divorce. (Id., Attachment.) Defendant entered into a conspiracy with Joseph Bonavito and James Zimmerman,*fn2 both of whom failed to disclose the true facts regarding the two properties. (Id.) Defendant also failed to disclose his ownership of stock and a pension from General Motors Corporation, his former employer. (Id.)
Plaintiff alleges that defendant failed to disclose relevant facts "regarding the sale," including the facts that "[t]wo pieces of propert[ies] were sold instead of one on [September] 9, 1997" and that a mortgage on the property had been satisfied on July 1, 2003. (Id. ¶ III.B.) "Under oath,  [d]efendant . . . admitted that he had forged  [p]laintiff's signature" without her consent. (Id. ¶ III.C.) "Marital assets were fraudulently transferred into the [d]efendant's name two years before the commencement of the divorce action by [p]laintiff" and "mortgage receipts for [the sale of] the properties were held by  [d]efendant for several years before" the divorce. (Id.) Defendant committed fraud in "the procurement of the [divorce] settlement" by his failure to introduce evidence and by "engaging in deceitful and fraudulent representation of the true facts." (Id.)*fn3
Defendant was "enriched by this agreement when the [c]court reduced the gross monthly mortgage payment by more than 43% on a fifty[-]fifty agreement" and because defendant "availed himself of  [p]laintiff's money for which he should be compelled to pay interest in as much as the agreed upon settlement of the distributive award is not a [future] award but a current one." (Id.)*fn4
"[A] 'sitting Judge' under the direction of the Head of the Matrimonial Part ordered a hearing to take place on another piece of property that was purchased during the marriage and that 
[d]efendant, under oath denied ownership and the newly discovered evidence." (Id., Attachment.) "Based on just the testimonies of the parties that were heard before another Judge, [the 'sitting Judge'] refused to have a hearing and disregarded the 'newly discovered evidence' and ruled on 'paper.'" (Id.)
Plaintiff appears to assert claims of fraud, denial of due process, unjust enrichment and intentional infliction of emotional distress.
Where a court is presented with a motion to dismiss under both FED. R. CIV. P. 12(b)(1) and 12(b)(6), the court "must decide the 'jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.'" Megna v. F.D.A., 2009 WL 749900, at *4 (E.D.N.Y. Mar. 17, 2009) (internal citation omitted). Accordingly, we first address whether dismissal is proper under FED. R. CIV. P. 12(b)(1).
I. Legal Standard for FED.R.CIV.P.12(b)(1)
"In deciding a motion to dismiss for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1), a court must accept as true all of the material factual allegations in the complaint." Brescia v. Sia, 2008 WL 1944010, at *2 (S.D.N.Y. Apr. 30, 2008) (Conner, J.) (citing Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)). However, "[t]he plaintiff bears the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists." Bonime v. Avaya, Inc., 2006 WL 3751219, at *1 (E.D.N.Y. Dec. 20, 2006), aff'd, 547 F.3d 497 (2d Cir. 2008) (citing Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002)). Subject matter jurisdiction "must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Drakos, 140 F.3d at 131. Rather, "[t]he mover and the pleader may use affidavits and other materials beyond the pleadings themselves in support of, or in opposition to, a challenge to subject matter jurisdiction." Giovanniello v. N.Y. Law Publ'g Co., 2007 WL 2244321, at *2 (S.D.N.Y. Aug. 6, 2007) (internal ...