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Carmen Diaz v. Verizon; Mr. Lowell C. Mcadam

October 25, 2012


The opinion of the court was delivered by: John Gleeson, United States District Judge:


Plaintiff Carmen Diaz filed this pro se action, accompanied by an application to proceed in forma pauperis, on September 17, 2012. Plaintiff's financial status, as set forth in that application, qualifies her to commence this action without prepayment of the filing fees. 28 U.S.C. § 1915(a)(1). Accordingly, the application to proceed in forma pauperis is granted. However, for the reasons discussed below, the court dismisses the complaint for lack of subject matter jurisdiction.


Diaz brings this action against Verizon, Direct TV, and their respective Presidents and Chief Executive Officers.*fn1 Diaz alleges that she entered into an agreement with Verizon in 2009 or 2010 for television, internet, and phone services. Compl. at ¶ 4(1). She further alleges that, unbeknownst to her, Verizon and Direct TV had a contractual agreement whereby Direct TV would provide Diaz with television services. Id. at ¶ 4(2). Two years after establishing service with Verizon, Diaz alleges that she switched to another provider. Id. at ¶ 4(3). Diaz asserts that when she paid her final bill to Verizon, Verizon should have but failed to forward a portion of her payment to Direct TV, which would fulfill her outstanding bill with Direct TV. Id. at ¶¶ 4(3), 4(5). Diaz contends that Direct TV then proceeded to establish an account under her name in an attempt to collect that outstanding bill in the amount of $100.57, which has since accrued a balance of $370.31. Id. at ¶ 4(7). Diaz further contends that a collection agency is attempting to collect $73.12, the amount that remains unpaid in the Direct TV account, on behalf of Direct TV.

Id. at ¶ 4(8). Diaz alleges that her credit score has been affected as a result. Id. Diaz seeks equitable relief directing Verizon to pay Direct TV the outstanding amount owed and directing Direct TV to cancel the account established under her name. Diaz further seeks two million dollars in damages.


A. Standard of Review

Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action if it determines that it "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." An action is "frivolous" when either "the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy" or "the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations omitted).

District courts are required to read pro se complaints liberally; "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The court must therefore interpret the complaint "to raise the strongest arguments that it suggests." Chavis v. Chappuis, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)) (internal quotation marks omitted). Moreover, at the pleadings stage of the proceeding, the court must assume the truth of "all well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

B. Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction and may not preside over cases absent subject matter jurisdiction. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005); Frontera Resources Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 397 (2d Cir. 2009). Lack of subject matter jurisdiction cannot be waived, United States v. Cotton, 535 U.S. 625, 630 (2002), and may be raised at any time by a party or by the court sua sponte. Henderson ex rel. Henderson v. Shinseki, 131 S.Ct. 1197, 1202 (2011) ("[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press."). Where a court lacks subject matter jurisdiction, dismissal is mandatory. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); see also Fed.R.Civ.P. 12(h)(3). The plaintiff, even if proceeding pro se, bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Hamm v. U.S., 483 F.3d 135, 137 (2d Cir. 2007); Ally v. Sukkar, 128 Fed.Appx. 194, 195 (2d Cir. 2005) ("Although we construe a pro se plaintiff's complaint liberally, a plaintiff attempting to bring a case in federal court must still comply with the relevant rules of procedural and substantive law, including establishing that the court has subject matter jurisdiction over the action.") (citations omitted).

The complaint invokes the jurisdiction of the court under 28 U.S.C. § 1332(a). The basic statutory grants of subject matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332. Arbaugh, 546 U.S. at 513. Section 331 provides for "[f]ederal-question" jurisdiction; § 1332 provides for "[d]iversity of citizenship" jurisdiction. 28 U.S.C. §§ 1331-32. "A plaintiff properly invokes § 1331 jurisdiction when she pleads a colorable claim 'arising under' the Constitution or laws of the United States." Arbaugh, 546 U.S. at 513. She properly invokes § 1332 jurisdiction "when she presents a claim between parties of diverse citizenship that exceeds the required jurisdictional amount, currently $75,000." Id. (citing 28 U.S.C. § 1332(a)). The complaint fails to establish that the court has jurisdiction over this action. Diversity jurisdiction requires complete diversity of citizenship, where "the citizenship of each plaintiff is diverse from the citizenship of each defendant." Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). The complaint states that Diaz resides in New York. It further states that one of the defendants also resides in New York. Therefore, complete diversity is lacking and this court lacks diversity jurisdiction over the complaint.

Absent diversity jurisdiction, federal question jurisdiction is required for the court to maintain subject matter jurisdiction. "The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Id. at 392. The complaint invokes the jurisdiction of the court solely under 28 U.S.C. § 1332, which provides for diversity jurisdiction. Moreover, the factual allegations do not state a claim involving violations of the U.S. Constitution or federal law. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809 n.6 (1986) ("Jurisdiction may not be sustained on a theory that the plaintiff has not advanced.") (citations omitted); Healy v. Sea Gull Specialty Co., 237 U.S. 479, 480 (1915) ("Jurisdiction generally depends upon the case made and relief demanded by the plaintiff . . . ."). Therefore, the complaint must be dismissed because plaintiff fails to state a claim that would confer jurisdiction upon this court pursuant to federal question or diversity jurisdiction.

When dismissing a complaint, a court should afford the plaintiff an opportunity to amend her pleading "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Cruz v. Gomez, 202 F.3d 593, 597- 98 (2d Cir. 2000) (quoting Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999)). For example, Diaz's factual allegations regarding the collection of the outstanding bill owed to Direct TV suggest the possibility of a claim under The Fair Debt Collection Practices Act. See Appendix A. Therefore, I grant her leave to file an amended complaint in which she may invoke the jurisdiction of the court by alleging a violation of federal law.


Accordingly, the court dismisses the pro se complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(h)(3) and 28 U.S.C. § 1915(e)(2)(B)(ii). Diaz may file an amended complaint within 30 days from the date of this order that sets forth a basis of this court's subject matter jurisdiction over the action. Plaintiff's amended complaint must be captioned as an "Amended Complaint" and bear the same docket number as this order. Plaintiff is advised that any amended complaint she files will completely replace the original complaint. If plaintiff fails to comply with this order within the time allowed, the case will be dismissed pursuant to Fed.R.Civ.P. 12(h)(3) and 28 U.S.C. § 1915(e)(2)(B)(ii). 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).


John Gleeson, U.S.D.J.


The Fair Debt Collection Practices Act -- 15 U.S.C. §§ 1692 et seq.

§ 1692. Congressional findings and declaration of purpose

(a) Abusive practices

There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

(b) Inadequacy of laws

Existing laws and procedures for redressing these injuries are inadequate to protect consumers.

(c) Available non-abusive collection methods

Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.

(d) Interstate commerce

Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce.

(e) Purposes

It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

§ 1692a. Definitions

As used in this subchapter--

(1) The term "Bureau" means the Bureau of Consumer Financial Protection.

(2) The term "communication" means the conveying of information regarding a debt directly or indirectly to any person through any medium.

(3) The term "consumer" means any natural person obligated or allegedly obligated to pay any debt.

(4) The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

(5) The term "debt" means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include--

(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;

(B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts;

(C) any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties;

(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;

(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person;

(iii) concerns a debt which was not in default at the time it was obtained by such person; or

(iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

(7) The term "location information" means a consumer's place of abode and his telephone number at such place, or his place of employment.

(8) The term "State" means any State, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any ...

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