United States District Court, E.D. New York
MEMORANDUM & ORDER
M. AZRACK UNITED STATES DISTRICT JUDGE
the Court are plaintiffs' objections to Magistrate Judge
A. Kathleen Tomlinson's Report and Recommendation
(“R & R”) dated February 28, 2017. In the R
& R, Judge Tomlinson recommends that the Court grant
defendants' motions to dismiss plaintiffs' federal
claims under Federal Rule of Civil Procedure 12(b)(6). With
respect to plaintiffs' state law claims, Judge Tomlinson
concludes that the Court does not have diversity jurisdiction
over these claims and recommends that the Court decline to
exercise supplemental jurisdiction over these claims.
Plaintiffs timely filed objections. Having conducted a review
of the full record and the applicable law, for the following
reasons, the Court adopts Judge Tomlinson's R & R, in
its entirety, as the opinion of the Court.
Court assumes familiarity with the facts, which are
referenced only as necessary to explain the Court's
STANDARD OF REVIEW
reviewing a magistrate judge's report and recommendation,
a court must “make a de novo determination of
those portions of the report or . . . recommendations to
which objection[s] [are] made.” 28 U.S.C. §
636(b)(1); see also Brown v. Ebert, No. 05-CV-5579,
2006 WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006). 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). Those portions of a
report and recommendation to which there is no specific
reasoned objection are reviewed for clear error. See Pall
Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y.
Court reviews the portions of the R & R to which the
parties did not specifically object. After review, I find
that these portions contain no clear error, and I adopt these
the Court reviews the portions of the R & R to which
plaintiffs objected. Upon a de novo review of the
record and Judge Tomlinson's R & R, the Court affirms
and adopts the remaining portions of the R & R as the
opinion of the Court. I discuss each objection below.
object to Judge Tomlinson's recommendation that the Court
lacks subject matter jurisdiction to hear plaintiffs'
state law claims. Plaintiffs maintain that the Court has
diversity jurisdiction based on the residencies of opposing
parties. Specifically, plaintiffs argue that it is a
“well knowing [sic] fact that Plaintiffs are Residents
of Florida.” (ECF No. 51 at 1.) As support, plaintiffs
refer the Court to two other cases pursued by the plaintiffs:
Maitland v. Lunn, 14-CV-5938 and Maitland v.
Konica Minolta, 09-CV-1675.
Court first notes that plaintiffs' references to two
other cases before the Court are insufficient evidence to
support the assertion that they are Florida residents.
Plaintiffs fail to refer the Court to any specific documents
or findings on those dockets that are relevant to the
question of residency. It is not the Court's duty to
scour the dockets in other cases to find unspecified evidence
or rulings that might be relevant to plaintiffs'
assuming, for the sake of argument, that plaintiffs have
established that they are residents of Florida, I would still
adopt Judge Tomlinson's recommendation that plaintiffs
have failed to adequately plead diversity jurisdiction. As
Judge Tomlinson explains in her R & R, diversity
jurisdiction turns on the citizenship of each party,
not the residency of each party. This is
because “allegations of residency alone cannot
establish citizenship . . . .” Davis v.
Cannick, No. 14-CV-7571, 2015 WL 1954491, at *2
(E.D.N.Y. Apr. 29, 2015) (quoting Canedy v. Liberty Mut.
Ins.Co., 126 F.3d 100, 103 (2d Cir. 1997)). Accordingly,
it is insufficient for the plaintiffs to plead that they are
Florida residents, without averring, through
non-conclusory allegations, that they are Florida
citizens. See Herrick Co. v. SCS Commc'ns,
Inc., 251 F.3d 315, 322-23 (2d Cir. 2001) (quoting
Advani Enter., Inc. v. Underwriters at Lloyds, 140
F.3d 157, 160 (2d Cir. 1998)) (“[I]t is well
established that ‘[t]he party seeking to invoke
jurisdiction under 28 U.S.C. § 1332 bears the burden of
demonstrating that the grounds for diversity exist and that
diversity is complete.'”). Because plaintiffs'
objection only addresses their residencies, not
their citizenships, I adopt Judge Tomlinson's
recommendation that this Court lacks diversity jurisdiction
over plaintiffs' state law claims.
The Claims Raised in ...