United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE, United States District Judge.
Kenric Lever, proceeding pro se, commenced the
above-captioned action on September 15, 2016, against pro
se Defendants Christina Lyons and Lescele Bogle,
asserting claims of malicious prosecution,
“libel/slander defamation, ” and “mental
anguish.” (Compl., Docket Entry No. 1.) On August 9,
2017, Defendants filed separate, but largely identical,
motions to dismiss the Complaint for lack of subject matter
jurisdiction and failure to state a claim, pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. (See Def. Bogle Mot. to Dismiss
(“Bogle Mot.”), Docket Entry No. 26; Def. Lyons
Mot. to Dismiss (“Lyons Mot.”), Docket Entry No.
27.) Defendants also requested that the Court impose
sanctions against Plaintiff for filing this action. (Bogle
Mot.; Lyons Mot.) On August 25, 2017, the Court referred the
motions to Magistrate Judge Cheryl L. Pollak for a report and
recommendation, (see Order dated Aug. 25, 2017), and
the case was reassigned to Magistrate Judge Sanket J.
Bulsara, (see Order dated Sept. 5, 2017). By report
and recommendation dated January 2, 2018 (the
“R&R”), Judge Bulsara recommended that the
Court dismiss the Complaint without prejudice for lack of
subject matter jurisdiction, and that Defendants'
requests for sanctions be denied. (R&R 21, Docket Entry
No. 37.) Plaintiff objected to the portion of the R&R
recommending dismissal of the Complaint. (Pl. Obj. to R&R
(“Pl. Obj.”), Docket Entry No. 39.) For the
reasons set forth below, the Court adopts the R&R in its
entirety, dismisses the Complaint without prejudice for lack
of subject matter jurisdiction, and denies Defendants'
requests for sanctions.
Court assumes the truth of the allegations in the Complaint
for the purpose of deciding Defendants' motions.
Plaintiff's claims arise from various alleged incidents
that took place between 2013 and 2016. During these
incidents, Lyons - with whom Plaintiff shares a daughter -
allegedly presented false evidence and made false accusations
regarding Plaintiff in the course of state court proceedings,
on social media websites, and to law enforcement. (Compl.
about July 27, 2013, Lyons and Bogle allegedly “acted
in cohesion” to create a falsified image of Lyons with
bruises on her body, intending to falsely accuse Plaintiff of
physically harming h er. (Id. ¶ 7.) According to
Plaintiff, these images were introduced into evidence during
a trial in New Yo r k state family court. (Id.) The
Complaint states that the action was ultimately dismissed,
but does not include any other details about the proceedings.
alleges that on September 8, 2015, Lyons made a false report
to the Newark, New Jersey Police Department, alleging that
Plaintiff published false information about her on social
media websites and threatened to harm her. (Id.
¶ 4.) The same d a y, Lyons obtained an order of
protection against Plaintiff based on similar false
accusations, which prevented Plaintiff from acquiring a
handgun license in order to obtain a job as a collection
agent with the New Yo r k City Transit Authority.
(Id. ¶ 9.) Plaintiff alleges that, in total,
Lyons obtained four orders of protection against him based on
false accusations. (Id. ¶ 10.)
September 14, 2015, Plaintiff was tried in New Jersey state
court for “[t]erroristic [t]hreats” arising from
the complaints Lyons made to the Newark Police Department.
(Id. ¶¶ 4- 5.) Plaintiff alleges that
during the proceedings, Lyo ns used the falsified image she
and Bogle created and also gave untruthful testimony while
she was cross-examined. (Id. ¶ 5.) Plaintiff
was found not guilty. (Id.)
17, 2016, when Lyons met Plaintiff at the 78th Precinct in
Brooklyn, New Yo r k to turn over custody of their daughter,
Lyo n s falsely told police officers that Plaintiff had
sexually abused their daughter, and showed them images of
child pornography, which she claimed came from
Plaintiff's computer. (Id. ¶ 1.) Plaintiff
was detained for questioning for several hours, during which
time Lyo ns left the precinct with their daughter without
turning custody over to Plaintiff. (Id.)
28, 2016, during proceedings in New Jersey state court, Lyons
falsely stated that Plaintiff was under state and federal
investigation related to possession of child pornography.
(Id. ¶ 2.) As a result, the judge suspended
Plaintiff's custody and visitation rights with his
daughter. (Id. ¶ 3.) On August 31, 2016, the
court determined that Lyo ns ' allegations were
alleges that Lyons also falsely accused him of physically
harming her in other New Jersey state court proceedings that
took place in or around September of 2015, (id.
¶ 8), and on social media websites, (id. ¶
seeks $150, 000 in damages from Lyo ns and $25, 000 in
damages from Bogle, as well as punitive damages in an amount
“the [C]ourt deems justif[ied].” (Id. at
filed this action on September 15, 2016. (Compl.) Lyons and
Bogle moved to dismiss the Complaint on August 9, 2017.
(Bogle Mot.; Lyons Mot.) On August 25, 2017, the Court
referred the motions to Magistrate Judge Cheryl L. Pollak for
a report and recommendation, (see Order dated Aug.
25, 2017), and on September 5, 2017, the case was reassigned
to Magistrate Judge Sanket J. Bulsara, (see Order
dated Sept. 5, 2017). Judge Bulsara recommended that the
Complaint be dismissed without prejudice for lack of
diversity jurisdiction,  and that Defendants' requests for
sanctions be denied. (R&R 21.)
Bulsara found that Plaintiff and Lyons are both domiciled in
New York. (Id. at 7.) In determining Lyons'
state of citizenship, Judge Bulsara reviewed the submissions
from Lyons, purporting to establish that she is domiciled in
New York, as well as the submissions from Plaintiff,
purporting to establish that Lyons is domiciled in New
Jersey. (See Lyons Letter dated Nov. 3,
2017, Docket Entry No. 29; Lyons Letter dated Nov. 27, 2017,
Docket Entry No. 31; Lyons Letter dated Dec. 19, 2017, Docket
Entry No. 34; Pl. Letter dated Dec. 14, 2017, Docket Entry
No. 35; Morales Letter dated Dec. 20, 2017, Docket Entry No.
respect to Lyons' ties to New Jersey, Judge Bulsara
observed that the Complaint was served on Lyons at an address
located in Newark, New Jersey, and also noted Lyons'
statements in her Answer and moving papers that she is a
resident of that state. (R&R 8-9.) Judge Bulsara also
considered evidence submitted by Plaintiff, consisting of
three transcripts of proceedings in Kings County Family
Court, dated August 27, 2014, July 1, 2016, and September 27,
2016, during which Lyons stated that she resides in Orange,
New Jersey. (See Tr. of State Court Proceedings,
annexed to Pl. Letter dated Dec. 14, 2017 as Exs. A-C.)
Plaintiff also submitted other documents which list
Lyons' address as the same Orange, New Jersey location: a
Notice of Emergency Removal and a Complaint, dated August 26,
2015 and August 28, 2015, respectively, both from a New
Jersey state court child removal proceeding, (Notice of
Emergency Removal and Compl., annexed to Pl. Letter dated
Dec. 14, 2017 as Exs. D and E); photocopies of Lyons'
2015 tax filings, (2015 Tax Filings, annexed to Pl. Letter
dated Dec. 14, 2017 as Ex. F); a Petition for a Modification
of an Order of Support dated March 22, 2016, and a Financial
Disclosure Affidavit dated April 19, 2016, both of which were
filed by Lyons in Kings County Family Court, (Pet. for
Modification and Fin. Disclosure Aff., annexed to Pl. Letter
dated Dec. 14, 2017 as Exs. G and H); and Lyons' earnings
statements for the pay periods ending March 15, 2016, March
31, 2016, April 15, 2016, May 31, 2016, and June 30, 2016,
(Earnings Statements, annexed to Pl. Letter dated Dec. 14,
2017 as Ex. I).
Bulsara nevertheless concluded that “[b]ased on the
record . . . Plaintiff has not met his burden of establishing
that Ms. Lyons is a citizen of a state other than New
York.” (R&R 8.) Judge Bulsara noted Lyons'
November 3, 2017 letter to the Court, in which Lyons
explained that while she “currently reside[s] in the
state of New Jersey, [her] legal residence is the [s]tate of
New York, which [Plaintiff] is aware of.” (Lyons Letter
dated Nov. 3, 2017; R&R 11.) In support of her assertion,
Lyons provided a copy of her New York state driver's
license, which bears a Staten Island, New York address. (New
York Driver's License, annexed to Lyons Letter dated Nov.
3, 2017 at 22.) The license was issued on January 20, 2015
and expires on January 21, 2023. (Id.) Lyons also
submitted a separate letter explaining that since 2013, she
had been splitting her time between New York and one of her
mother's homes, located at 119 Ward Street in Orange, New
Jersey. (Lyons Letter dated Nov. 27, 2017.) Lyons further
stated that she began spending less time at her mother's
home after Plaintiff “plac[e]d the Orange, N[ew]
J[ersey] address on the internet on 8/30/2015 . . . .”
Bulsara also considered additional documentation suggesting
that Lyons is domiciled in New York. On December 19, 2017,
Lyons submitted photocopies of her car insurance information,
earnings statements, and the birth certificate of her younger
daughter. (Lyons Letter dated Dec. 19, 2017.) The car
insurance documentation includes photocopies of two New York
state car insurance identification cards, one effective
October 1, 2015 through April 1, 2016, and the other
effective October 1, 2016 through April 1, 2017.
(Id. at 7-8.) Both cards indicate that Lyons has a
Staten Island, New York address, (id.), as do the
earnings statements, dated May 31, 2016, June 30, 2016 and
October 31, 2016, (id. at 10-12); and the birth
certificate, dated October 14, 2013, (id. at
the evidence, Judge Bulsara found that Plaintiff has, at
most, established that Lyons has resided in New Jersey, but
has not established New Jersey as her domicile for purposes
of diversity of citizenship. (R&R 12.) As the R&R
notes, because Lyons “ha[d] once been a citizen of New
York, the evidence is insufficient to establish -
notwithstanding the references to the New Jersey address and
the New Jersey tax return - that Ms. Lyons ever intended to
change her domicile from New York to New Jersey.”
Bulsara also recommended that the Court dismiss the claim
against Bogle. (R&R 16-17.) Judge Bulsara concluded that
there is no diversity jurisdiction over the claim against
Bogle because it does not meet the amount-in-controversy
requirement, (R&R 16), and recommended that the Court
decline to exercise supplemental jurisdiction over the claim
without a proper basis for original federal jurisdiction,