United States District Court, S.D. New York
ORDER OF DISMISSAL
COLLEEN McMAHON, CHIEF UNITED STATES DISTRICT JUDGE
Oluyesi Adeniji, of the Bronx, New York, appears pro
se and brings this action under the Court's
diversity jurisdiction. He sues Online Taxes, Inc., which he
alleges is located in St. Joseph, Missouri. He seeks $15, 000
order dated December 16, 2019, the Court granted
Plaintiff's request to proceed without prepayment of
fees, that is, in forma pauperis. For the reasons
set forth below, the Court dismisses this action without
prejudice to its refiling in state court.
Court must dismiss an in forma pauperis complaint,
or any portion of the complaint, 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).
the law mandates 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 (2d Cir. 2006) (internal
quotation marks and citations omitted, emphasis in original).
But the “special solicitude” in pro se
cases, id. at 475 (citation omitted), has its limits
- to state a claim, pro se pleadings still must
comply with Rule 8 of the Federal Rules of Civil Procedure,
which requires a complaint to make a short and plain
statement showing that the pleader is entitled to relief.
United States Supreme Court has held that under Rule 8, a
complaint must include enough facts to state a claim for
relief “that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim
is facially plausible if the plaintiff pleads enough factual
detail to allow the Court to draw the inference that the
defendant is liable for the alleged misconduct. In reviewing
the complaint, the Court must accept all well-pleaded factual
allegations as true. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). But it does not have to accept as true
“[t]hreadbare recitals of the elements of a cause of
action, ” which are essentially just legal conclusions.
Id. (citing Twombly, 550 U.S. at 555).
After separating legal conclusions from well-pleaded factual
allegations, the Court must determine whether those facts
make it plausible - not merely possible - that the pleader is
entitled to relief. Id. at 678-79.
alleges the following facts: In March 2016, Plaintiff filed
his tax returns using Defendant's tax-preparation
software. The Internal Revenue Service (“IRS”)
recommended that software. The software “warehoused
[Plaintiff's] unemployment income and partial earned
wages to prop [his] refund.” (ECF 2, at 5.) The IRS
then audited him. Plaintiff now owes at total of $15, 000 in
taxes to the state and federal governments. These events
occurred because of a “glitch” in Defendant's
software. (Id.) Plaintiff is “asking the Court
to apply Defendant['s] professional liability insurance
to cover the [accrued] tax liabilities from [the] IRS and
state.” (Id.) He also asks the Court to order
Defendant “to assist because of [its]
subject-matter jurisdiction of the federal district courts is
limited and is set forth generally in 28 U.S.C. §§
1331 and 1332. Under these statutes, a federal district
court's jurisdiction is available only when a
“federal question” is presented or, if the
plaintiff asserts state-law claims under the Court's
diversity jurisdiction, when the plaintiff and the defendant
are citizens of different States and the amount in
controversy exceeds the sum or value of $75, 000.
“‘[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-C I O v. CenterMark Prop.
Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994)
(quoting Manway Constr. Co., Inc. v. Hous. Auth. of the
City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983));
see 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 action.”);
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999) (“[S]ubject-matter delineations must be policed
by the courts on their own initiative . . . .”).
assert state-law claims under the Court's diversity
jurisdiction, a plaintiff must first allege that he and the
defendant are citizens of different States. 28 U.S.C. §
1332(a)(1); W i s . Dep't of Corr. v. Schacht,
524 U.S. 381, 388 (1998) (“A case falls within the
federal district court's ‘original' diversity
‘jurisdiction' only if diversity of citizenship
among the parties is complete, i.e., only if there
is no plaintiff and no defendant who are citizens of the same
State.”). For diversity purposes, an individual is a
citizen of the State where he is domiciled, which is defined
as the place where a person “has his true fixed home .
. . and to which, whenever he is absent, he has the intention
of returning.” Palazzo ex rel. Delmage v.
Corio, 232 F.3d 38, 42 (2d Cir. 2000) (internal
quotation marks and citation omitted). An individual
“has but one domicile.” Id. A
corporation, however, is a citizen “of every State and
foreign state by which it has been incorporated and of the
State or foreign state where it has its principal place of
business.” § 1332(c)(1); see also Hertz Corp.
v. Friend, 559 U.S. 77, 92-93 (2010) (a
corporation's principal place of business is its
“nerve center, ” usually its main headquarters).
The plaintiff must also allege to a “reasonable
probability” that the claim is in excess of the sum or
value of $75, 000, the statutory jurisdictional amount.
Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d
214, 221 (2d Cir. 2006) (citation and internal quotation
marks omitted); see § 1332(a).
alleges that he is a citizen of New York and that Defendant -
a corporation - is a citizen of Missouri because it is
incorporated in that State and has its principal place of
business in that State. (ECF 2, at 3.) But he fails to allege
facts showing that his claims satisfy the statutory
jurisdictional amount, an amount in excess of the sum or
value of $75, 000.
Court can dismiss a diversity action for failing to show that
the claims satisfy the statutory jurisdictional amount, but
only if there is “a legal certainty from the complaint
that the plaintiff cannot recover sufficient damages to
invoke federal jurisdiction.” Zacharia v. Harbor
Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982);
see Ochoa v. Interbrew Am., Inc., 999 F.2d 626, 629
(2d Cir. 1993) (“[I]n determining whether a challenged
jurisdictional amount has been ...