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Taldone v. Barbash

United States District Court, E.D. New York

May 5, 2014

SUSAN BARBASH, ERIC KATZ, MARIA AVITABLE, PETE HANNAH, BARBARA FISHKIND, JAMIE WINKLER, as individuals and/or employees and/or owner/operators of South Shore Restoration Group, HARBOUR CLUB, LLC, WINKLER REAL ESTATE, DOES 1-12, Defendants.



On April 3, 2014, pro se plaintiffs Wendy Taldone and Thomas Briksza ("plaintiffs") filed: (1) a complaint in this Court against Susan Barbash ("Barbash"), Eric Katz ("Katz"), Maria Avitable ("Avitable"), Pete Hannah ("Hannah"), Barbara Fishkind ("Fishkind"), Jamie Winkler ("Winkler"), Harbour Club, LLC, Winkler Real Estate and twelve (12) unidentified defendants named as "Does 1-12" (collectively, "defendants"), alleging state law claims seeking damages for fraud, negligence, conspiracy to defraud, breach of contract and "malice" arising from a residential lease agreement into which the parties entered in March 2013; and (2) an application to proceed in forma pauperis. Since plaintiffs' financial status, as set forth in their respective declarations in support of their applications to proceed in forma pauperis, qualifies them to commence this action without prepayment of the filing fees, see 28 U.S.C. § 1915(a)(1), their applications to proceed in forma pauperis are granted. However, for the reasons set forth below, the complaint is sua sponte dismissed pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction unless plaintiffs file an amended complaint in accordance with this Order.

I. The Complaint[1]

The complaint asserts forty-nine (49) causes of action against defendants for fraud (first, eighth, fourteenth, twentieth, twenty-sixth, thirty-second, thirty-eighth and forty-fourth causes of action), breach of contract (second, fourth, ninth, eleventh, fifteenth, seventeenth, twenty-first, twenty-third, twenty-seventh, twenty-ninth, thirty-third, thirty-fifth, thirty-ninth, forty-first, forty-fifth and forty-seventh causes of action), negligence (third, tenth, sixteenth, twenty-second, twenty-eighth, thirty-fourth, fortieth and forty-sixth causes of action), conspiracy to defraud (fifth, twelfth, eighteenth, twenty-fourth, thirtieth, thirty-sixth, forty-second and forty-eighth causes of action) and malice (sixth, seventh, thirteenth, nineteenth, twenty-fifth, thirty-first, thirty-seventh, forty-third and forty-ninth causes of action), all arising from a contract into which the parties entered in March 2013, pursuant to which plaintiffs leased a residence in New York from defendants. (Compl. at 2, 6-28). Plaintiffs claim that defendants: (1) made misrepresentations to them concerning, inter alia, the condition of the premises and the scope of the lease, including the "property's habitability and the area of actual usage available to [them], " (Compl. at 6), "for the express purpose of inducing [them] to enter into * * * [the] contract to lease said property, " (id. at 2-3, 3); (2) "refuse[] to maintain said property in accordance with the law, " (id. at 3, ¶ 5), and to make necessary repairs; (3) "have repeatedly violated, and allowed other[s] to repeatedly violate [their] right to Quiet Enjoyment and Right to Peace and Privacy, " (id. at 4, ¶ 9), and "have threatened and harassed [them] by claiming the right to enter the premises at any time they choose, and without any prior notice or consent, " OIL); (4) "issued [them] a Move Out and Cleaning Cost Schedule and are threatening to hold [their] security money * * *, " (id. at 4, ¶ 10); (5) required them to obtain homeowners insurance in excess of the value of the property that they leased; and (6) are threatening to evict them from the premises after informing them that they could stay beyond the lease date and accepting their advance payment of rent for the extra month. (Id. at 2-6).

Plaintiffs allege "Diversity and violations of Federal Laws" as the bases of this Court's jurisdiction, claiming "upon information and belief [that] the Plaintiffs and Defendant[s] are citizens of different States." (Id. at 1). However, plaintiffs allege only that they are residents of the State of New York, (id.), and they do not allege the citizenship of any of the defendants, although the addresses provided in the complaint for each defendant are in the State of New York. (Id at 40-41). Moreover, although plaintiffs allege "other violations of the Laws, Statutes and Codes of the United States of America, " (Id. at 1), they fail to identify any federal law allegedly violated by defendants. In addition, plaintiffs allege that "[j]urisdiction is also conferred on This Court as Defendant's [sic] conduct illegal activities across state lines, and in the furtherance of these on-going illegal activities and schemes, use the Federal Mail System, emails and interstate telephone lines."(Id.)

II. Discussion

A. Standard of Review

"Federal courts are courts of limited jurisdiction, " Gunn v. Minton, ___ U.S. ___, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quotations and citation omitted); Mims v. Arrow Financial Services, LLC, ___ U.S. ___, 132 S.Ct. 740, 747, 181 L.Ed.2d 881 (2012), and may not preside over cases absent subject matter jurisdiction. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (holding that federal courts may not exercise jurisdiction absent a statutory basis); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (holding that federal courts "possess only that power authorized by Constitution and statute * * *.") Although district courts are required to read pro se complaints liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013), and to construe them "to raise the strongest arguments that they suggest, " Gerstenbluth v. Credit Suisse Securities (USA) LLC, 728 F.3d 139, 142-43 (2d Cir. 2013) (quotations and citations omitted), lack of subject matter jurisdiction cannot be waived or forfeited and may be raised at any time by a party or by the court sua sponte. See Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012); see also Sebelius v. Auburn Regional Medical Center, ___ U.S. ___, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) ("Objections to a tribunal's jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subject-matter jurisdiction over the controversy.") Indeed, federal courts "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); see also Fracasse v. People's United Bank, ___ F.3d ___, 2014 WL 1243811, at * 2 (2d Cir. Mar. 27, 2014) (holding that federal courts must "conduct an independent inquiry into whether [they] have jurisdiction over a matter before [they] proceed to address questions on the merits" and that "[i]f subject matter jurisdiction is lacking and no party has called the matter to the court's attention, the court has the duty to dismiss the action sua sponte." (quotations and citations omitted)). If a court lacks subject matter jurisdiction, it must dismiss the action. See Fed.R.Civ.P. 12(h)(3); Arbaugh, 546 U.S. at 514, 126 S.Ct. 1235; Fracasse, ___ F.3d ___, 2014 WL 1243811, at * 2; Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont 565 F.3d 56, 62-3 (2d Cir. 2009).

B. Subject Matter Jurisdiction

Regarding the original subject matter jurisdiction of federal courts, the Supreme Court has held:

"The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332. Section 1331 provides for [f]ederal-question' jurisdiction, § 1332 for [d]iversity of citizenship' jurisdiction. A plaintiff properly invokes § 1331 jurisdiction when she pleads a colorable claim arising under' the Constitution or laws of the United States. * * * She invokes § 1332 jurisdiction when she presents a claim between parties of diverse citizenship that exceeds the required jurisdictional amount, currently $75, 000."

Arbaugh, 546 U.S. at 513, 126 S.Ct. 1235 (quotations and brackets in original; citation and footnote omitted); see also Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013) ("Congress has granted district courts original jurisdiction over cases in which there is a federal question, see 28 U.S.C. § 1331, and certain cases between citizens of different states, so long as the requirements of complete diversity and amount in controversy are met, 28 U.S.C. § 1332.")

Even liberally construed, plaintiffs' complaint does not establish that this Court has subject matter jurisdiction under ...

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