The opinion of the court was delivered by: Mae A. D'agostino, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
On April 2, 2012, the Court received for filing a pro se second
amended complaint and in forma pauperis application.*fn1
(Dkt. No. 7). In his second amended complaint, plaintiff
asserts claims of fraud and breach of contract against defendant. In
an Order and Report--Recommendation dated April 10, 2012, United
States Magistrate Judge David R. Homer found that plaintiff's
complaint was subject to dismissal for lack of federal jurisdiction.
Magistrate Judge Homer also recommended denying plaintiff's IFP application as moot. (Dkt. No. 8).
Plaintiff filed specific objections to the Report-Recommendation. (Dkt. No. 9). In view of the objections and pursuant to 28 U.S.C. § 636(b)(1), this Court conducts a de novo review of these issues. The Court reviews the remaining portions of the Report-Recommendation for clear error or manifest injustice. See Brown v. Peters, 1997 WL 599355, at *2-3 (N.D.N.Y.) aff'd without op., 175 F.3d 1007 (2d Cir. 1999). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
I. The Second Amended Complaint
On or about October 24, 2011, plaintiff received a business loan contract for the sum of $25,000.00 from defendant. To begin the loan process, plaintiff was directed to forward $600.00, via Western Union, to Marie Wilson in Vancouver, Canada. Defendant's representative, John Fine, told plaintiff that upon receipt of the funds, the loan process would be "turned over to the lender". However, prior to that, plaintiff was directed to remit $400.00 for "electronic clearing house charges". John Fine told plaintiff that upon receipt of those funds, the loan would be released. Plaintiff forwarded this amount to Marie Wilson in Vancouver via Western Union. Plaintiff was contacted by "another man" with a different telephone number who indicated that plaintiff was to call his "855" number and release $350.00 in broker's fees to "close the deal and receive the check". Plaintiff remitted the $350.00. Plaintiff attempted to telephone the broker but was unable to reach him at the telephone number provided. Plaintiff called John Fine and was told that the broker's fee was sent to the wrong department and asked plaintiff to forward another "350 to Canada". Plaintiff alleges that he has lost a total of $1,350.00 to defendant thru "hidden fees and misdirection" and further, plaintiff claims he never received the $25,000.00 loan.
Plaintiff alleges causes of action for breach of contract, theft by deception and misrepresentation. Plaintiff also asserts a cause of action based upon 18 U.S.C. § 1030 asserting violations of the Computer Fraud and Abuse Act ("CFAA").*fn2 Plaintiff alleges that due to defendant's actions, he was unable to service contracts and suffered a "loss of reputation in the import/export business". Plaintiff claims a loss of $24,000,000.00.
On April 10, 2012, Magistrate Judge Homer recommended that the Court dismiss plaintiff's second amended complaint for lack of jurisdiction. Judge Homer concluded, ". . . the second amended complaint is devoid of any facts which would establish that the amount of controversy exceeds the sum or value of $75,000."*fn3 (Dkt. No. 8, p. 3).
Plaintiff argues that Judge Homer erred in recommending dismissal because the action satisfies the requirements of 28 U.S.C. §§ 1331 and 1332. Plaintiff alleges that , "the sum ...