United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, District Judge
2014, Plaintiff Nanette Sanchez filed a “remaining
family member” (“RFM”) grievance, claiming
that she qualified to take over her deceased mother's
lease of a New York City Housing Authority
(“NYCHA”) public housing apartment. Decl. of
Nabiha Rahman in Supp. of Def.'s Mot. to Dismiss
(“Rahman Decl.”) (ECF No. 48), ¶¶ 11,
13. After her grievance was denied by the property manager
and upheld on review by NYCHA's borough office, a hearing
was scheduled on Plaintiff's RFM grievance for October
24, 2014 and then adjourned until November 21, 2014.
Id. ¶¶ 13-15 & Ex. E. When Plaintiff
failed to appear at the hearing either in person or through a
representative, the hearing officer issued an order
dismissing Plaintiff's RFM grievance. Id. ¶
16 & Ex. E.
January 14, 2015, Plaintiff applied to open her default and
schedule a new hearing date, explaining that she had missed
the November 21, 2014 hearing due to illness. Id.
¶ 17 & Ex. F. Although NYCHA opposed Plaintiff's
application, id. ¶ 18 & Ex. F, the hearing
officer granted Plaintiff's application on February 17,
2015, id. ¶ 19 & Ex. F. The hearing
officer's decision was mailed to Plaintiff on the same
day but, due to a miscommunication, the hearing was not re-
scheduled at that time. Id.
proceeding pro se, initiated this action on June 28,
2016. In her complaint, she alleges that her right to due
process was violated because NYCHA was “trying to evict
her” without affording her a grievance hearing. Compl.
(ECF No. 1) at pp. 2-4. She alleges, in particular, that she
had informed the NYCHA attorney two days prior to her hearing
that she had been scheduled for surgery on the day of the
hearing and would therefore be unable to attend, but that the
attorney failed to notify the hearing officer. Compl. at 2.
same date, Plaintiff filed a motion for a stay of eviction.
ECF No. 10. In its opposition to that motion, NYCHA informed
the Court that a new grievance hearing had been scheduled on
Plaintiff's RFM claim which, in NYCHA's view,
rendered Plaintiff's claim moot. ECF No. 15. On August
19, 2016, before the deadline for Plaintiff to file a reply,
the Court entered an order stating that it would reserve
decision on Plaintiff's motion until the anticipated
grievance hearing was held, in light of significant concerns
regarding the Court's authority to provide the injunctive
relief sought by Plaintiff and NYCHA's agreement not
evict Plaintiff prior to the hearing. ECF. No. 19.
several delays, the grievance hearing on Plaintiff's RFM
claim was held on February 28, 2017, and the hearing officer
issued a determination on March 13, 2017, finding that
Plaintiff is not a RFM as defined by NYCHA regulations.
Rahman Decl. ¶¶ 20-21 & Ex. G. On April 14,
2017, the Court held a status conference, which both parties
attended. During the conference, Plaintiff agreed that her
hearing had taken place and that her RFM grievance had been
denied. During the conference, the Court granted NYCHA leave
to file a motion to dismiss. See ECF No. 41. The
Court ordered that NYCHA file its motion no later than May
12, 2012; that Plaintiff file her opposition no later than
June 2, 2017; and that NYCHA file its reply, if any, no later
than one week following service of Plaintiff's
opposition. Id. A written order memorializing that
briefing schedule was served on Plaintiff by mail. ECF No.
filed its motion to dismiss on May 10, 2017. ECF Nos. 47-50.
In its motion, NYCHA argues that the Court lacks subject
matter jurisdiction over this action because Plaintiff's
claim is moot. NYCHA also argues, in the alternative, that
Plaintiff's complaint fails to state a claim for
violation of procedural due process. Plaintiff did not file
STANDARD OF REVIEW
case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it.” Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). The plaintiff bears the burden of proving
by a preponderance of the evidence that subject matter
jurisdiction exists. See Makarova, 201 F.3d at 113.
“While the Court must accept as true all factual
allegations in the complaint, the court may not draw any
jurisdictional inferences in favor of the plaintiff.”
Squicciarini v. United States, No. 12-cv-2386 (ER),
2013 WL 620190, at *3 (S.D.N.Y. Feb. 15, 2013) (citations
omitted). “Jurisdiction must be shown affirmatively,
and that showing is not made by drawing from the pleadings
inferences favorable to the party asserting it.”
APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)
(brackets omitted) (quoting Shipping Fin. Servs. Corp v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998)).
resolving a motion to dismiss for lack of subject matter
jurisdiction, the Court may consider evidence outside the
pleadings and make findings of fact. Makarova, 201
F.3d at 113. When a defendant makes a “fact-based
12(b)(1) motion, proffering evidence beyond the [p]leading,
” the plaintiff must then “come forward with
evidence of [her] own to controvert that presented by the
defendant” if it “reveal[s] the existence of
factual problems in the assertion of jurisdiction.”
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57
(2d Cir. 2016).
Article III of the U.S. Constitution, [w]hen a case becomes
moot, the federal courts lack subject matter jurisdiction
over the action.” Doyle v. Midland Credit Mgmt.,
Inc., 722 F.3d 78, 80 (2d Cir. 2013) (per curiam)
(internal quotation marks and citation omitted).
“Mootness is a doctrinal restriction stemming from the
Article III requirement that federal courts decide only live
cases or controversies . . . .” In re Zarnel,
619 F.3d 156, 162 (2d Cir. 2010). “A case becomes moot
when interim relief or events have eradicated the effects of
the defendant's act or omission, and there is no
reasonable expectation that the alleged violation will
recur.” Van Wie v. Pataki, 267 F.3d 109, 113
(2d Cir. 2001).
only injury alleged in Plaintiff's complaint is that
NYCHA was seeking to evict her from her mother's
apartment without affording her a new administrative
grievance hearing on her RFM claim after she failed to appear
for her originally scheduled hearing. NYCHA has now provided
the Court with evidence that Plaintiff was ultimately
afforded a pre-eviction grievance hearing, see
Rahman Decl. ¶¶ 20-21 & Ex. G, and Plaintiff
has failed to come forward with any contradictory evidence.
Indeed, Plaintiff herself represented to the Court during the
April 14, 2017 status conference that the hearing had taken
place, and that the hearing officer had denied her RFM
grievance. Furthermore, this is not the type of alleged
violation that is capable of recurring. ...