United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. COGAN U.S.D.J.
Kecia Kemp, proceeding pro se, brings this action
for attorney malpractice, seeking only punitive damages.
Plaintiff's request to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915 is granted. For the reasons
discussed below, the complaint is dismissed and plaintiff is
granted 20 days leave to file an amended complaint.
brings this action against attorney Chauncey Henry
(“Henry”), who represented her in an action
before this Court for employment discrimination and
retaliation under Title VII, the Family and Medical Leave
Act, and corresponding provisions of New York State law.
See Kemp v. City of NY Dept. of Health, No. 16 Civ.
1080 (BMC) (the “prior action”). Plaintiff
originally filed the prior action pro se in March
2016, and later retained Henry in October 2016. The complaint
is not entirely clear, but it appears that plaintiff agreed
to pay Henry $5, 000 to represent her in the prior action.
Plaintiff states that she paid Henry $1, 500 on the day he
was retained, and thereafter, “on the 15th of each
month beginning [November] 2016 [Henry] would go into
[plaintiff's] Chase bank to receive $458.00.”
February 4, 2017, I granted defendant's motion to dismiss
the prior action with prejudice as to the federal claims and
without prejudice as to the state law claims. It is clear
from the instant complaint that plaintiff was dissatisfied
with the outcome of the prior action and Henry's
representation of her in that action. She claims that Henry
did not attempt to communicate with her about her case,
submitted papers to the Court without notifying her or
seeking her approval, and failed to properly advise her as to
appropriate steps she could take to pursue her case.
Plaintiff also states that Henry had access to her bank
account pursuant to the parties' engagement agreement,
but that Henry “went into her bank account”
without authorization on two occasions.
instant action plaintiff is seeking $300, 000 in punitive
damages due to Henry's “lack of representing my
case, misleading me to think that I was late filing my case
and that I was not providing documents in timely matter [sic]
which is fabrication to what I submitted through the court
prior to retaining Mr. Henry.”
plaintiff is proceeding pro se, and her complaint is
held to less stringent standards than pleadings drafted by
lawyers, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
she still must establish that the court has subject matter
jurisdiction over her action. See, e.g.,
Rene v. Citibank NA, 32 F.Supp.2d 539, 541-42
(E.D.N.Y. 1999). Lack of subject matter jurisdiction cannot
be waived and may be raised at any time by a party or by the
court sua sponte. See Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428 (2011). If a court lacks subject
matter jurisdiction, it must dismiss the action. See
Fed.R.Civ.P. 12(h)(3); Arbaugh v. Y & H Corp.,
546 U.S. 500, 514 (2006).
subject matter jurisdiction exists only where the action
presents a federal question pursuant to 28 U.S.C. §
1331, or where there is diversity jurisdiction pursuant to 28
U.S.C. § 1332. Igartua v. Dept. of Homeless
Servs., Nos. 15 CV 3806, 15 CV 3807, 2015 WL 4656557, at
*2 (E.D.N.Y. Aug. 5, 2015) (internal citations omitted).
“The party invoking federal jurisdiction bears the
burden of establishing that jurisdiction exists.”
Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir.
2009) (internal quotation marks omitted). “A plaintiff
properly invokes § 1331 jurisdiction when [s]he pleads a
colorable claim ‘arising under' the Constitution or
laws of the United States.” Arbaugh, 546 U.S.
at 513 (citing Bell v. Hood, 327 U.S. 678, 681-85
(1946)). A plaintiff properly invokes § 1332
jurisdiction when she presents a claim between parties of
diverse citizenship that exceeds the required jurisdictional
amount, which is currently $75, 000. Id. (citing
does not allege a basis for jurisdiction, but it is clear
from the complaint that the Court has neither federal
question nor diversity jurisdiction. The factual allegations
in the complaint purely state a claim for legal malpractice,
which is a matter of state law over which this Court does not
have federal question jurisdiction. See Fine v. City of
New York, 529 F.2d 70, 74 (2d Cir.1975) (“Whatever
cause of action [the plaintiff] might have against his
lawyer, whether sounding in professional malpractice, tort,
or otherwise, is one of state law insufficient to vest a
federal court with jurisdiction over the subject
it appears that diversity of citizenship exists, as plaintiff
is a citizen of Virginia and Henry is a citizen of New York,
plaintiff has not remotely met her burden to establish that
she can recover more than or even close to $75, 000 in this
action. See Chase Manhattan Bank, N.A. v. Am. Nat'l
Bank and Trust Co. of Chicago, 93 F.3d 1064, 1070 (2d
Cir. 1996) (“A party invoking the jurisdiction of the
federal court has the burden of proving that it appears to a
reasonable probability that the claim is in excess of the
statutory jurisdictional amount.”) (internal quotation
marks omitted). Plaintiff rests only on her demand for
punitive damages to satisfy the jurisdictional amount, and
“in computing jurisdictional amount, a claim of
punitive damages is to be given closer scrutiny . . .
.” Zahn v. Int'l Paper Co., 469 F.2d 1033,
1033 n. 1 (2d Cir. 1972). Plaintiff's demand for $300,
000 in punitive damages, in light of the fact that she did
not suffer any compensatory damages, “raise[s] a
suspicious judicial eyebrow.” BMW of N. Am., Inc.
v. Gore, 517 U.S. 559, 583 (1996). Indeed,
plaintiff's claim to $300, 000 is based solely on
Henry's representation for which the parties agreed Henry
would be paid a mere $5, 000. These allegations fail to
allege a colorable basis for the amount of punitive damages
“[b]efore determining that the amount in controversy
requirement has not been met, the court must afford plaintiff
the opportunity to show good faith in believing that a
recovery in excess of [$75, 000] is reasonably
possible.” Chase Manhattan Bank, N.A., 93 F.3d
at 1070. Plaintiff is therefore granted leave to file an
amended complaint. Should plaintiff elect to file an amended
complaint, the amended complaint must set forth facts
sufficient to meet the amount in controversy requirement set
forth above. In other words, she must explain how to gets to
a damage calculation in excess of $75, 000; she cannot just
pull a number out of the air.
complaint is dismissed for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(h)(3). Plaintiff is granted 20 days leave to file an
amended complaint. Plaintiff is advised that an amended
complaint does not simply add to the first complaint; it
completely replaces the original complaint. Therefore,
plaintiff must include in the amended complaint all the
necessary information that was contained in the original