United States District Court, E.D. New York
L. IRIZARRY, Chief United States District Judge
Entertainment, LLC. (“Plaintiff”), seeks this
Court's intervention to prevent the musician Burna Boy
from performing at the PlayStation Theater, tomorrow, May 6,
2017 (“PlayStation Concert”). The Court declines
5, 2017, Plaintiff filed a Complaint against Burna Boy Ltd.,
Damini Ogulu a.k.a. Burna Boy (“Burna Boy”), Bose
Abodosede Ogulu, the PlayStation Theater, a subsidiary of
Anshultz Entertainment Group, and W & R Projects, LLC
(collectively “Defendants”), alleging breach of
contract and tortious interference. See Mot. for
Prelim. Injunction & Temp. Restrain. Order (“TRO
Mot.”), Dkt. Entry No. 1 at 24-39.
addition to the Complaint, Plaintiff filed papers supporting
an application for a preliminary injunction and a temporary
restraining order to enjoin Burna Boy from performing at the
PlayStation Concert. See Id. at 1-23; Unsigned Order
to Show Cause (“Prop. OTSC”), Dkt. Entry No. 2.
The sole reason for this request is Plaintiff's
conclusory allegation “that it will suffer both
economic loss and harm to its business reputation.” TRO
Mot. at 29. Defendants oppose this motion. See Opp.
to App. For Temp. Retrain. Order, Dkt. Entry No. 4.
outset, the Court notes disapprovingly that Plaintiff filed
this request on the eve of the PlayStation Concert when its
Chief Executive Officer knew, as early as the end of March
2017, that Burna Boy would be performing at this event in
early May. This application could have, and should have, been
filed at that time. The Court takes a dim view of such
tactical, eleventh hour ploys. However, this calculated
decision does not serve Plaintiff's application; the
Court cannot reach the merits of Plaintiff's request
because it lacks subject matter jurisdiction over the
courts are courts of limited jurisdiction whose power is
limited strictly by Article III of the Constitution and
congressional statute.” United Food &
Commercial Workers Union, Local 919 AFL-CIO v. CenterMark
Props. Merdien Square, Inc., 30 F.3d 298, 303 (2d Cir.
1994) (internal citation omitted). For that reason, parties
“cannot waive subject matter jurisdiction by express
consent, conduct, or estoppel because they fail to challenge
jurisdiction early in the proceedings.” Id.
(internal citations and quotation marks omitted). If the
parties fail to raise this issue, the Court may do so sua
sponte. Fed.R.Civ.P. 12(h)(3); Durant, Nichols,
Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565
F.3d 56, 62-63 (2d Cir. 2009) (internal citation omitted).
This is so because the Court has “an independent
obligation to ensure that [it] do[es] not exceed the scope of
[its] jurisdiction, and therefore [it] must raise and decide
jurisdictional questions that the parties either overlook or
elect nor to press.” Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011) (internal citations
omitted). When the Court lacks subject matter jurisdiction,
it must dismiss the action. Fed.R.Civ.P. 12(h)(3);
Arbaugh v. Y & H Corp., 546 U.S. 500, 514
Plaintiff claims that this Court has subject matter
jurisdiction over the dispute pursuant to both 28 U.S.C.
§ 1331 and 28 U.S.C. § 1332. See TRO Mot.
at 25, 26. The Court disagrees. For the Court to exercise
original jurisdiction under 28 U.S.C. § 1331, an action
must “aris[e] under the Constitution, laws, or treaties
of the United States.” Insofar as any claims might be
stated in the Complaint, they are common law actions based on
an alleged contract and do not “arise” under the
federal Constitution, laws, or treaties. See
generally, TRO Mot. at 24-31. As such, § 1331 is
inapplicable to this matter. As for diversity jurisdiction
under 28 U.S.C. § 1332, it may be invoked only where
there is complete diversity of citizenship between the
parties. See Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 373 (1978) (internal citations
omitted); Graves v. Home Depot U.S.A., Inc., No.
12-CV-3816 (LGS) (DF), 2013 WL 3055348, at *1 (S.D.N.Y. May
24, 2013) (internal citations omitted). Here, Plaintiff
affirmatively pleads that both it and Defendant W & R
Projects, LLC. are limited liabilities corporations organized
under the laws of New York State. Compare TRO Mot.
at 24, with Id. at 25. Since complete diversity does
not exist between the parties, the Court cannot exercise
diversity jurisdiction over this proceeding.
this matter is dismissed for want of subject matter
reasons stated above, the matter is dismissed, without
prejudice to refile in the proper forum, for lack of subject
matter jurisdiction. While this Court is skeptical of the
merits of the application, it is for the ...