United States District Court, E.D. New York
MEMORANDUM AND ORDER
LASHANN DEARCY HALL, UNITED STATES DISTRICT JUDGE
Plaintiff Maria Cai brings this action against Defendant
Frequency Networks, Inc. alleging a breach of contract.
Defendant moves for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c), or, in the
alternative, to dismiss the complaint for lack of
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). Defendant also moves for attorneys' fees.
2013, Plaintiff, a citizen of New York, began raising capital
for Defendant, a California-based company. (Am. Compl. 4-5,
ECF No. 5.) Plaintiff and Blair Harrison, Defendant's
CEO, agreed that Defendant would pay Plaintiff a $35, 000
consultant fee on each monthly invoice she sent to the
company. (Id.) Plaintiff sent the company three
invoices. (Id.) Defendant sent Plaintiff one check
for $35, 000, dated March 13, 2014. (Id. at 5, 10.)
On the same day, Harrison sent Plaintiff an email in which
she asked Plaintiff to agree that the email would
“confirm our agreement that this payment of $35, 000
for consulting services plus the 75, 000 share stock option
grant together constitute payment in full by Frequency of any
and all amounts owed to you as of this date for any reason
whatsoever.” (Answer to Am. Compl. Ex. A, ECF No.
12-1.) In the email, Harrison asked Plaintiff to reply that
she agreed to the statement. (Id.) The next day,
Plaintiff responded, “I Confirm.” (Id.)
Harrison then forwarded the email exchange to two employees
of Defendant, Rita Tocco and Mike Gordon, writing,
“Confirmation of full and final settlement with Maria
9, 2016, Plaintiff commenced this diversity action, alleging
that Defendant owed her $70, 000 in business commission fees
for the two unpaid invoices, 75, 000 shares of stock in cash
value, and $315 for a cellphone. (See Compl. 5.) On
July 13, 2016, the Court dismissed Plaintiff's complaint
for failure to satisfy the amount-in-controversy requirement.
(See Order to File an Amended Complaint, ECF No. 4.)
Plaintiff was granted thirty days to amend. (Id.)
filed an amended complaint on July 18, 2016, alleging that
Defendant owes her $70, 000 in commission, “75, 000
shares of stock” at a price of “$1 per share or
more after years of business evaluation, ” and $315 for
a cellphone. (See Am. Compl. 5-6.) In the amended
complaint, Plaintiff maintained that when her stock matured
“after one year from issue date, [she] still could not
liquidate it.” (Am. Compl. 5.) In support of her claim,
Plaintiff attached a Stock Option Agreement between Defendant
and Plaintiff dated March 10, 2014. (Am. Compl. 8.) Pursuant
to the Stock Option Agreement, Defendant granted Plaintiff
the option to purchase 75, 000 shares of common stock, at an
exercise price of $0.195 per share. (Id.) The option
to purchase is set to expire on March 9, 2024. (Id.)
November 23, 2016, Defendant filed an answer, denying the
allegations and asserting as affirmative defenses that: (1)
the amended complaint fails to state a claim upon which
relief can be granted; (2) the Court lacks subject-matter
jurisdiction because Plaintiff has not met the
amount-in-controversy requirement to establish diversity
jurisdiction under § 28 U.S.C. 1332; (3) the Eastern
District of New York is the improper venue for the action
because Defendant is a California company and the events
giving rise to the claim occurred in California; (4)
Plaintiff was paid in full for any and all amounts owed; (5)
Plaintiff released her claim against Defendant; and (6)
Plaintiff's claims are barred by the doctrines of accord
and satisfaction, promissory estoppel, and fraud in the
inducement. (See Answer.) On March 31, 2017,
Defendant filed the instant motion.
party moves for dismissal under Federal Rule of Civil
Procedure 12(b)(1) and on other grounds, courts consider the
Rule 12(b)(1) challenge first. See Rhulen Agency, Inc. v.
Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.
1990). If a court finds that it lacks subject matter
jurisdiction, “then the accompanying objections and
defenses become moot.” Id.
is properly dismissed under Rule 12(b)(1) for lack of subject
matter jurisdiction when “the district court lacks the
statutory or constitutional power to adjudicate it.”
Pivotal Payments, Inc. v. FVA Ventures, Inc., No. CV
11-5713, 2012 WL 3887360, at *2 (E.D.N.Y. July 30, 2012)
(quoting Makarova v. U.S., 201 F.3d 110, 113 (2d
Cir. 2000)). A party invoking federal jurisdiction
“must allege in [its] pleading the facts essential to
show jurisdiction, ” and “must support [those
facts] by competent proof.” U.S. ex rel Phipps v.
Comprehensive Cmty. Dev. Corp., 152 F.Supp.2d 443, 448
(S.D.N.Y. 2001) (quoting McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 178 (1936).
Rule 12(b)(1) motion, “the court must accept all
factual allegations in the complaint as true and draw
inferences from those allegations in the light most favorable
to the plaintiff.” Jaghory v. New York State
Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997).
The court may refer, however, to evidence outside the
pleadings. See Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). When a plaintiff proceeds pro se, in
addition, the court will read her submissions liberally and
“interpret them to raise the strongest arguments that
they suggest.” Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994) (citing Mikinberg v. Baltic S.S.
Co., 988 F.2d 327, 330 (2d 1993)). Yet, still, a pro se
“plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that
it exists.” Makarova, 201 F.3d at 113.
Subject Matter Jurisdiction
courts are courts of limited jurisdiction and may not preside
over cases absent subject matter jurisdiction. See Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
552 (2005); Frontera Res. Azerbaijan Corp. v. State Oil
Co. of Azerbaijan Republic, 582 F.3d 393, 397 (2d Cir.
2009). The requirement of subject matter jurisdiction cannot
be waived. See United States v. Cotton, 535 U.S.
625, 630 (2002). In other words, when a court lacks subject