United States District Court, S.D. New York
BARBARA MOSES, United States Magistrate Judge.
December 27, 2018, pro se plaintiffs Einar Tamm and
Tamm Consulting (together, Tamm) moved to remand this action
to New York Supreme Court, from which defendants had removed
it, arguing - among other things - that this Court lacks
subject-matter jurisdiction because "complete diversity
does not exist between plaintiff and defendants as required
by 28 U.S.C. § 1332(a)." Tamm Decl. (Dkt. No. 12)
¶ 14. On January 24, 2019, defendants moved to dismiss
all of Tamm's claims on the merits pursuant to
Fed.R.Civ.P. 12(b)(6). (Dks. Nos. 23, 24.)
August 15, 2019, acting on referral from the district judge
(Dkt. No. 45), I agreed with Tamm that this Court lacks
subject-matter jurisdiction. See Report and
Recommendation (R&R) (Dkt. No. 70) at 1, 15-21. I
therefore recommended that the case be remanded, id.
at 1, 22, and did not reach the merits of defendants'
pending motions to dismiss. See R&R at 6 n.5.
December 17, 2019, while awaiting the district judge's
ruling on the parties' objections to the R&R,
Tamm filed a letter-motion (Pl. Ltr.) (Dkt. No. 87),
mistakenly addressed to the district judge, requesting that
the Engineering Defendants be ordered to produce discovery
concerning a factual hypothesis (which Tamm dubs the
"template theory") advanced in support of their
motion to dismiss. Pl. Letter at 2. In addition, Tamm
requests that the Court direct the Engineering Defendants to
"justify and document the origins of" the template
theory; order them to "produce a demonstration to the
Court that their purported 'template theory' actually
works"; require them to "disprove" his
contrary factual allegations (that a key document was
"ghostwritten" by a non-party, see R&R
at 4 n.3) and "clarify and correct" what Tamm
describes as "discrepancies" in their prior filings
concerning the same issue; and "strike" the
Engineering Defendants' "defective and incorrect
filings" advancing the template theory. Id.
letter dated December 24, 2019 (Eng. Def. Ltr.) (Dkt. No.
88), the Engineering Defendants urge this Court to deny
Tamm's request because it consists of "nonsensical,
illogical, and irrational arguments"" that would
"waste the Court's time and resources," Eng.
Def. Ltr. at 1-2, and could be "debunked" with a
single call or email to the alleged ghostwriter. Id.
at 2-3. There is some appeal to the Engineering
Defendants' arguments. See R&R at 19 n.11
(noting that Tamm's ghostwriting allegations are
"farfetched" and "highly speculative").
However, the Court need not - and indeed should not - reach
the merits of the ghostwriting allegations, the template
theory, or any related factual disputes in order to rule on
principal relief that Tamm seeks is court-ordered discovery
as to a factual dispute that the Engineering Defendants
raised eleven months ago, when they moved to dismiss the
claims against them pursuant to Rule 12(b)(6), and that goes
to the merits of those claims. In addition, by requesting
that the Engineering Defendants' filings be
"corrected" or stricken, Tamm appears to seek an
adjudication of that dispute by the Court.
not entitled to discovery because no discovery has ever been
(or should now be) authorized in this action. No discovery
conference took place between the parties during the pendency
of the motions to remand and dismiss, and no discovery
schedule was issued. For this reason alone, Tamm cannot
conduct discovery in this Court. See Fed. R. Civ. P.
26(d) (subject to certain exceptions not relevant here,
"a party may not seek discovery from any source before
the parties have conferred as required by Rule 26(f)").
more fundamentally, Tamm cannot ask this Court to authorize
discovery, strike affidavits that he deems
"incorrect," or otherwise adjudicate the merits of
the Engineering Defendants' template theory after arguing
- successfully - that this Court lacks subject-matter
jurisdiction to do so. “Without jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the
fact," and dismissing (or, as here, remanding) the case.
Steel Co. v. Citizens for Better Environment, 523
U.S. 83, 94 (1998) (internal quotation marks omitted).
See also Humphrey v. Syracuse Police Dep't, 758
Fed.Appx. 205, 206 (2d Cir. 2019) ("Lacking subject
matter jurisdiction, the district court did not have the
power to reach the merits and dismiss the claims against the
defendants for failure to state a claim"); Carter v.
HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir.
2016) ("without jurisdiction, the district court lacks
the power to adjudicate the merits of the case");
U.S. Catholic Conference v. Abortion Rights Mobilization,
Inc., 487 U.S. 72, 76 (1988) ("the subpoena power
of a court cannot be more extensive than its
jurisdiction"); Antwi v. United States, 349
F.Supp.2d 663, 669 (S.D.N.Y. 2004) ("The obligation that
courts must resolve threshold questions of jurisdiction . . .
before proceeding to consider the merits of a claim at any
stage of a proceeding is 'inflexible and without
letter-motion (Dkt. No. 87) must therefore be DENIED.
Clerk of Court is directed to mail a copy of this Order to
plaintiff Einar Tamm.
 Defendants objected to the R&R on
the ground that non-diverse defendants Turner Engineering,
PC, Turner Forensics, Daniel Turner, and Troy McClure
(together, the Engineering Defendants) were
"fraudulently joined" and thus that the case should
not be remanded. (Dkt. Nos. 74, 78.) Tamm objected on the
principal ground that he should have been awarded
attorneys' fees and costs on the remand motion. (Dkt. No.
80.) In addition, Tamm filed an Amended Notice of Appeal
(Dkt. No. 73) in which he ...