United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
G. KOELTL, UNITED STATES DISTRICT JUDGE.
plaintiff Cheryl Dukes, appearing pro se, filed this
action on behalf of her deceased husband, Ralph Dukes. The
plaintiff alleges that her husband, who worked as a motor
vehicle operator for Kings County Hospital, sought to apply
for line-of-duty and accidental-death benefits under the
World Trade Center Disability filing program. (Compl. at 19.)
The plaintiff alleges that her husband retired in 2002 and
subsequently died on September 20, 2007. She asserts that he
died in the line of duty and that the defendants wrongfully
denied him line-of-duty status and accidental-death benefits.
The plaintiff brought this action seeking to receive the
benefits that she alleges were wrongfully denied to her
Court must dismiss an in forma pauperis complaint,
or portion thereof, that is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998). The Court must also dismiss a complaint when the Court
lacks subject matter jurisdiction. See Fed. R. Civ.
P. 12(h)(3). While the law requires dismissal on any of these
grounds, the Court is obliged to construe pro se
pleadings liberally, Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009), and interpret them to raise the
"strongest [claims] that they suggest, "
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474-75 (2d Cir. 2006) (internal quotation marks and citations
earlier action in the United States District Court for the
Eastern District of New York, the plaintiff sued the same
defendants regarding their denial of benefits to her husband.
See Dukes v. NYCERS, No. 13-cv-5303 (JBW) (LB)
(E.D.N.Y. Feb. 12, 2014) ("Dukes EDNY").
In that case, Judge Weinstein granted the defendants'
motion to dismiss for lack of subject matter jurisdiction,
holding that (1) a challenge to a state or local entity's
determination must be brought in state court under Article 78
of the New York Civil Practice Law and Rules, and the
plaintiff's complaint did not raise a question of federal
law; and (2) because both parties were citizens of New York
State there was no diversity jurisdiction. Dukes v.
NYCERS, No. 13-cv-5303, 2014 WL 583235 (E.D.N.Y. Feb.
Court of Appeals affirmed the judgment of the district court,
and the United States Supreme Court denied the
plaintiff's petition for a writ of certiorari.
See Dukes v. NYCERS, No. 14-750 (2d Cir. Nov. 19,
2014), cert, denied, No. 14-9038 (May 4, 2015).
complaint in this action, filed on May 11, 2015, the
plaintiff challenges the decisions of the Eastern District of
New York and the Court of Appeals, arguing that her domicile
was and is in Long Pond, Pennsylvania, and that diversity
jurisdiction therefore does exist. It is unclear, however,
whether the plaintiff can show that her circumstances have
changed and that she is now domiciled in Pennsylvania. It
appears that she was still residing in New York at the time
she filed her complaint. See, e.g., Compl. at 12
("Petitioner is a non-resident of the state of New York
residing in New York out of necessity . . . .").
order dated March 30, 2016, this Court determined that the
plaintiff had not "cured" the jurisdictional
defects and may therefore not relitigate the issue in this
action. (Docket No. 9.) The plaintiff s complaint was
therefore dismissed for lack of subject matter jurisdiction.
See, e.g., Watson v. United States, 349
Fed.Appx. 542, 544-45 (Fed. Cir. 2009) (summary order)
(holding that res judicata applied in case where
prior action was dismissed for lack of subject matter
jurisdiction and plaintiff filed new complaint alleging
jurisdiction under same statute, raised identical claims
against same parties as prior action, and failed to provide
additional facts to cure jurisdictional defects); Zoriano
Sanchez v. Caribbean Carriers Ltd., 552 F.2d 70, 72 (2d
Cir. 1977) (giving res judicata effect where
plaintiffs raised "the same claim, involving the same
parties and arising out of the same circumstances" in
two different district courts and where determination of lack
of subject matter jurisdiction was "actually
litigated" and "essential to [the first]
plaintiff appealed the judgment of the District Court
dismissing the Complaint. By order dated September 21, 2017,
and Mandate issued on October 16, 2017, the United States
Court of Appeals for the Second Circuit noted that domicile
for diversity purposes is determined when an action is filed,
see Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir.
1998), and that the plaintiff s domicile when she filed this
action had not been adjudicated. Dukes v. NYCERS,
697 Fed.Appx. 100, 100-01 (2d Cir. 2017). The court held
that, construed liberally, the complaint alleges that the
plaintiff has cured the jurisdictional defect by establishing
domicile in Pennsylvania. The Court of Appeals also noted
that because the plaintiff invokes jurisdiction under the Air
Transportation Safety and System Stabilization Act
("ATSSSA"), Pub. L. No. 107-42, 115 Stat. 230
(2001), the district court may also have federal question
jurisdiction over the plaintiff's claims, an issue that
was neither previously considered by this Court nor raised in
the action in the Eastern District of New York. Id.
at 101. The Court of Appeals directed this Court to
"determine in the first instance whether this
'damages' provision covers a claim arising from a
city pension scheme." Id. (citing In Re WTC
Disaster Site, 414 F.3d 352, 373-80 (2d Cir. 2005)). The
Court of Appeals therefore vacated the judgment and remanded
the case for further proceedings consistent with its order.
creates a federal cause of action for damages "arising
out of" the 9/11 aircraft crashes and vests the Southern
District of New York with "original and exclusive
jurisdiction over all actions brought for any claim
(including any claim for loss of property, personal injury,
or death) resulting from or relating to the terrorist-related
aircraft crashes of September 11, 2001." ATSSSA §
408(b)(1) & (3). "However, not every insurance claim
or dispute traceable to September 11 can be based on ATSSSA;
the claim or defense must closely concern the events of that
day." In Re Sept. 11 Litig., 765 F.Supp.2d 587,
592 (S.D.N.Y. 2011). Moreover, "Congress . . . amended
the ATSSSA to exclude civil actions to recover collateral
source obligations from the exclusive jurisdiction
provision." Troiano v. Mardovich, No. 06-CV-523
(LAP), 2006 WL 2320517, at *3 (S.D.N.Y. Aug. 10, 2006)
(citing 49 U.S.C. § 40101 note; Pub. L. No. 107-71,
§ 201(b), 115 Stat. 646 (2001)). The term
"collateral source" means "all collateral
sources, including life insurance, pension funds, death
benefit programs, and payments by Federal, State, or local
governments related to the terrorist-related aircraft crashes
of September 11, 2001." The Port Auth. of N.Y. &
N.J, v. Ailianz Ins. Co., 443 F.Supp.2d 548, 555
(S.D.N.Y. 2006) (citing ATSSSA § 402(4)) .
light of the foregoing, it is unclear whether the Court has
federal question jurisdiction under ATSSSA over the
plaintiff's claims, and/or whether diversity jurisdiction
exists. “[I]t is common ground that in our federal
system of limited jurisdiction any party or the court
sua sponte, at any stage of the proceedings, may
raise the question of whether the court has subject matter
jurisdiction." United Food & Commercial Workers
Union, Local 919, AFL-CIO v. CenterMark Prop. Meriden Square,
Inc., 30 F.3d 298, 301 (2d Cir. 1994); see also
Fed.R.Civ.P. 12(h)(3) ("If the court determines at any
time that it lacks subject-matter jurisdiction, the court
must dismiss the ...