United States District Court, E.D. New York
LAO-TEH HUNG a.k.a. LEONARD T. HUNG; DUO-CHI HUNG a.k.a. DOROTHY C. HUNG, Plaintiffs,
ELIZABETH W. HURWITZ, ESQ.; LIH YUH KUO, a.k.a. LILY HSU KUO, Defendants.
MEMORANDUM AND ORDER
WILLIAM F. KUNTZ, UNITED STATES DISTRICT JUDGE.
Hung a.k.a. Leonard T. Hung and Duo-Chi Hung a.k.a. Dorothy
C. Hung (together, "Plaintiffs"), who are residents
of Flushing, New York, filed this fee-paid, pro se
action invoking the Court's federal question and
diversity jurisdiction under 28 U.S.C. § 1331 and 28
U.S.C. § 1332. By Memorandum and Order dated August 28,
2017, the action was dismissed for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(h)(3). Plaintiffs were granted 30 days leave to
file an amended complaint to establish complete diversity of
citizenship among themselves and each defendant named.
September 28, 2017, Plaintiffs filed an Amended Complaint,
which names Elizabeth W. Hurwitz ("Hurwitz") and
Lih Yuh Kuo also known as Lily (Hsu) Kuo ("Kuo") as
the only defendants. ECF No. 8. For the reasons discussed
below, Plaintiffs are hereby granted an additional 30 days
leave to file a second amended complaint.
pleadings stage of the proceeding, the Court must assume the
truth of "all well-pleaded, nonconclusory factual
allegations" in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint
must plead sufficient facts to "state a claim to relief
that is plausible on its face." Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). It is axiomatic that
pro se complaints are held to less stringent
standards than pleadings drafted by attorneys and the Court
is required to read the plaintiff s pro se complaint
liberally and interpret it raising the strongest arguments it
suggests. Erickson v. Pardus, 551 U.S. 89 (2007);
Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed
Plaintiff v. Sealed Defendant #7, 537 F.3d 185, 191-93
(2d Cir. 2008).
Lack of Subject Matter Jurisdiction
Court previously stated, 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, 434 (2011) ("[F]ederal
courts have an independent obligation to ensure that they do
not exceed the scope of their jurisdiction, and therefore
they must raise and decide jurisdictional questions that the
parties either overlook or elect not to press."). If a
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 (2006); Durant, Nichols,
Houston, Hodgson & Cortese-Costa, P.C. v. Dupont,
565 F.3d 56, 62-3 (2d Cir. 2009).
28 U.S.C. § 1332(a)(1), the Court has subject matter
jurisdiction over actions between citizens of different
states, where the matter in controversy is more than $75,
000. "[Diversity jurisdiction is available only when all
adverse parties to a litigation are completely diverse in
their citizenships." Herrick Co. v. SCS
Commc'ns, Inc., 251 F.3d 315, 322 (2d Cir. 2001). A
party's citizenship for purposes of Section 1332 is a
question of law and fact. Palazzo ex rel Delmage v.
Corio, 232 F.3d 38, 42 (2d Cir. 2000). The party seeking
to invoke jurisdiction pursuant to Section 1332 has the
burden of establishing that complete diversity exists.
Herrick Co., 25\ F.3dat322. A party's
citizenship depends on her domicile. Durant, Nichols,
Houston, Hodgson & Cortese-Costa, P.C v. Dupont, 371
Fed.Appx. 135, 137 (2d Cir. 2010) (quoting Linardos v.
Fortuna, 157 F.3d 945, 948 (2d Cir. 1998)). Domicile is
"the place where a person has his true fixed home and
principal establishment, and to which, whenever he is absent,
he has the intention of returning." Palazzo,
232 F.3d at 42 (citation omitted). A person only has one
domicile at a time. Id. To change her domicile, a
person must take up residence in a new domicile and intend to
it appears that defendant Hurwitz is a citizen of Michigan,
but defendant Kuo may be a citizen of New York, which would
negate complete diversity between the parties. Plaintiffs
initially asserted that defendant Kuo was a citizen of New
York, residing in Lido Beach, New York, but now allege that
she is a citizen of Taiwan. Specifically, they state that Kuo
is a citizen of Taiwan, having residency can be found at 143
Chang-Chun Road, 5th Floor, Taipei, Taiwan,
although she is 'domicile' or with-out permanent
residency' and is 'currently' (i.e. for the time
being, since Dec. 28th, 2016[)], in an
'unverified' or 'can't be-disclosed'
nursing care facility some-where; or 'was told' by
daughter(s) Karen Hsu and Ruth Hsu that their mother was
sometime temporarily at 73 Luchon St., Lido Beach, Nassau
County, NY 11561.
Am. Compl. ¶ 11. The "documentary proof of
evidence" Plaintiffs offer to establish that Kuo is not
a citizen of New York, is a United States Postal Service
Express Mail receipt addressed to Kuo in Taiwan in 1995.
Id. at 3, 10. This is clearly insufficient, so
Plaintiffs have not met their burden of establishing that
complete diversity exists between the parties.
in an abundance of caution and in light of its duty to
liberally construe pro se complaints, the Court
grants Plaintiffs an additional 30 days leave to file a
second amended complaint to establish complete diversity of
citizenship among themselves and each defendant named in the
Amended Complaint. See Pearson v. Reid-Robinson, 632
Fed.Appx. 19, 19 (2d Cir. 2016) (holding that courts should
allow "plaintiffs to amend complaints to drop
dispensable nondiverse defendants whose presence would defeat
diversity of citizenship." (internal quotation marks
omitted) (citing Jaser v. New York Prop. Ins.
Underwriting Ass'n,815 F.2d 240, 243 (2d Cir.
1987))). Plaintiffs are advised that the second amended
complaint will completely replace the Complaint and the
Amended Complaint, must be captioned, "Second Amended
Complaint, " and must bear the same docket number as
this Memorandum and Order. If Plaintiffs fail to file a
second amended complaint within the time allowed, judgment
shall issue dismissing this action. Although ...