United States District Court, E.D. New York
MEMORANDUM AND ORDER
WILLIAM F. KUNTZ, II, UNITED STATES DISTRICT JUDGE
11, 2018, Plaintiff Farrah Gilot, filed an in forma
pauperis action against Defendant Equivity and alleged
jurisdiction pursuant to 28 U.S.C. § 1332. By memorandum
and order dated June 21, 2018, the Court granted Plaintiffs
request to proceed in forma pauperis pursuant to 28
U.S.C. § 1915, and granted Plaintiff thirty days leave
from the date of the memorandum and order to submit an
amended complaint. Plaintiffs amended complaint, filed on
June 12, 2018, alleges jurisdiction pursuant to 28 U.S.C.
§ 1332, and asserts a violation of the Privacy Act, 5
U.S.C. § 552 (a). For the reasons that follow, the
amended complaint is dismissed sua sponte pursuant
to 28 U.S.C. § 1915(e)(2)(B) and the Clerk of the Court
is directed to mark this case closed.
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, 124(2dCir. 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 Atl.
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 plaintiffs pro se
complaint liberally and interpret it raising the strongest
arguments it suggests. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980);
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191-93 (2d Cir. 2008).
under 28 U.S.C. § 1915(e)(2)(B), a district court shall
dismiss an in forma pauperis action where it is
satisfied that the action "(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief." An action is
"frivolous" when either: (1) "the 'factual
contentions are clearly baseless,' such as when
allegations are the product of delusion or fantasy"; or
(2) "the claim is 'based on an indisputably
meritless legal theory.'" Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998) (internal citation omitted).
a plaintiff seeking to bring a lawsuit in federal court must
establish that the court has subject matter jurisdiction over
the action. See, e.g., Rene v. Citibank NA, 32
F.Supp.2d 539, 542 (E.D.N.Y.1999) (Spatt, J.).
"[F]ailure of subject matter jurisdiction is not
waivable and may be raised at any time by a party or by the
court sua sponte. If subject matter jurisdiction is
lacking, the action must be dismissed." Lyndonville
Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697,
700-01 (2d Cir. 2000) (citations omitted); see Fed.
R. Civ. P. 12(h)(3).
asserts Defendant released her "personal
information" to a third party without her consent, and
the release of said information could potentially lead to the
theft of her identity. Am. Compl. at 8, ECF No. 8. Plaintiff
alleges Defendant violated her "constitional [sic]
amendment right to privacy under Justice Louis Brandel [sic]
the right to be left alone." Id. at 5. She
seeks $500, 000.00 in monetary damages. Id. at 10.
order to bring suit in a federal court, Plaintiff must
establish that she has standing to pursue her claims under
Article III of the United States Constitution. KM. v.
N.Y.C. Dep 't of Educ, 758 F.3d 442, 449 (2d Cir.
2014). "To establish that a case or controversy exists
so as to confer standing under Article III, a plaintiff must
satisfy three elements: (a) the plaintiff must suffer an
'injury in fact,' (b) that injury must be 'fairly
traceable' to the challenged action, and (c) the injury
must be likely to be 'redressed by a favorable
decision' of the federal court." Nat. Res. Def.
Council, Inc. v. U.S. Food & Drug Admin., 710 F.3d
71, 79 (2d Cir. 2013) (citations omitted); see also
Hollingsworth v. Perry, 570 U.S. 693, 704 (2013)
("[F]or a federal court to have authority under the
Constitution to settle a dispute, the party before it must
seek a remedy for a personal and tangible harm.").
amended complaint asserts that due to an alleged data breach
by Defendant, her personal information is at risk of being
exposed. However, allegations of possible future injury do
not satisfy the "injury-in-fact" requirement for
Article III standing; a threatened injury must be certainly
impending, and not purely speculative. See Clapper v.
Amnesty International USA, 568 U.S. 398, 409 (2013)
("the threatened injury must be certainly impending
to constitute injury in fact" and allegations
of "possible future injury are not
sufficient." (citation and internal quotations
omitted)). Despite being given an opportunity to amend her
complaint in order to plead factual allegations to
demonstrate that there is a substantial risk of future harm,
Plaintiff failed to do so. Instead, she once again reiterates
that the alleged leak of her personal information may
possibly lead to the theft of her identity. Thus, the
likelihood that Plaintiff will suffer any harm remains
entirely speculative. See Susan B. Anthony List v.
Driehaus, 134 S.Ct. 2334, 2341 (2014) (clarifying that a
plaintiff can establish standing by demonstrating that the
threatened injury is "certainly impending" or there
is a "substantial risk" that the harm will occur);
Whalen v. Michaels Stores, Inc., 689 Fed.Appx. 89,
90-91 (2d Cir. 2017) (affirming dismissal for lack of
standing where plaintiffs personal credit card information
was stolen in a security breach finding that plaintiff
alleged no injury that would satisfy the constitutional
standing requirements); Sackin v. TransPerfect Glob.,
Inc., 278 F.Supp.3d 739, 746 (S.D.N.Y. 2017) (Schofield,
J.) (allegations of future harm establish injury in fact, as
required for standing, as long as the future harm is
certainly impending; by contrast, mere allegations of
possible future injury are not sufficient).
Plaintiffs claim that Defendant violated the Privacy Act of
1974, 5 U.S.C. § 552a, by disclosing personal
information to third parties fails. "[T]he private right
of civil action created by the Privacy Act is specifically
limited to actions against agencies of the United States
government" and not to private corporations. Burch
v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d
Cir. 2008) (per curiam) (citing Pennyfeather v.
Tessler, 431 F.3d 54, 56 (2d Cir. 2005)); Cardona v.
Cmty. Access, Inc., 1 l-CV-4129, 2013 WL 304519, at *8
n.12 (E.D.N.Y. Jan. 25, 2013)(Brodie, J.).
to the extent that Plaintiff could establish standing, she
fails to meet the amount-in-controversy requirement of 28
U.S.C. § 1332. A plaintiff properly invokes § 1332
jurisdiction when she presents a claim between parties of
diverse citizenship that exceeds the required jurisdictional
amount, currently $75, 000.00. Arbaugh v. Y&H
Corp., 546 U.S. 500, 513 (2006). According to the facts
alleged in the amended complaint, complete diversity of
citizenship exists between the parties, as Plaintiff is a
citizen of Brooklyn, New York, while Defendant is alleged to
be a citizen of Oregon. However, "[a] party invoking the
jurisdiction of the federal court has the burden of proving
that it appears to a 'reasonable probability' that
the claim is in excess of the statutory jurisdictional
amount." Chase Manhattan Bank, N.A. v. Am. Nat'l
Bank and Trust Co. of Chicago, 93 F.3d 1064, 1070 (2d
Cir. 1996) (quoting Tongkook Am., Inc. v. Shipton
Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994)). The
amount in controversy must be non-speculative in order to
satisfy the statute. Baltazar v. Earth Ctr. of Maanu,
Inc., 14-CV-3543, 2014 WL 3887717, at *2 (E.D.N.Y. July
11, 2014) (Vitaliano, J.). Further, whereas here, the
jurisdictional amount is met only by inclusion of a claim for
punitive damages, such calculation must be considered with
"heightened scrutiny." Nwanza v. Time,
Inc., 125 Fed.Appx. 346, 349 (2d Cir. 2005); Cohen
v. Narragansett Bay Ins. Co., 14-CV-3623, 26l4 WL
4701167, at *3 n.4 (E.D.N.Y. Sept. 23, 2014) (Chen, J.)
("[T]he Court is not obligated to accept, on face value,
a claimed amount of punitive damages, particularly where
there would be no diversity without such damages."
Plaintiff seeks $500, 000.00, in punitive damages, she fails
to plead any plausible facts to suggest that the value of her
claim exceeds $75, 000.00. Plaintiff simply asserts the
speculative claim that she may face the potential for an
injury in the future. However, to date, she has not suffered
any "injury-in-fact." See Gilot v.
Greyhound, 18-CV-3074, 2018 WL 3093971, at *2 (E.D.N.Y.
June 22, 2018) (Kuntz, J.) (noting that Plaintiff fails to
allege any facts to show that she is entitled to punitive
damages); see also Bracken v.MHPillars
Inc.,290 F.Supp.3d 258, 268 (S.D.N.Y. 2017)
(Gorenstein, J.) ("Because the complaint is devoid ...