Ryder v. Coldwell Banker Real Estate, LLC et al
Filing
54
ORDER granting 19 and 34 motions to dismiss for lack of jurisdiction. The clerk is directed to close this case. Signed by Judge Alfred V. Covello on June 24, 2014. (Covello, Alfred)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GARY RYDER,
plaintiff,
v.
COLDWELL BANKER REAL ESTATE
LLC, ET AL.,
defendants.
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: Civil No. 3:14CV231(AVC)
:
:
:
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RULING ON THE DEFENDANTS’ MOTIONS TO DISMISS
This
is an action for damages in which the pro se
plaintiff, Gary Ryder, alleges several causes of action against
several defendants,1 including, inter alia, violations of
Connecticut‟s unfair trade practices law, common law fraud, and
breach of contract.
Several defendants have filed motions to dismiss,2 arguing
that the court lacks subject matter jurisdiction to hear this
action because the plaintiff has failed to plead facts that
support diversity jurisdiction.
1
Coldwell Banker Real Estate, LLC, Realogy Holdings Corp, Advent Wallach
Insurance Services-CT, Landlord Services Corp., CB5 Restaurant Group, LLC,
CB5 Hospitality Consulting Group, LLC, Jennifer Morelli, Frederick W.
Morelli, C. P. a minor child, M. P. a minor child, Kathleen Nguyen, Clare
Deyo, and Davidson Insurance Agency.
2
On March 30, 2014, Davidson insurance Agency, Clare Deyo, and John M. Glover
Agency filed a motion to dismiss. On April 30, 2014, Jennifer Morelli, C.P.,
and M.P. filed a motion to dismiss. The responses to these motions became due
on April 20 and May 21, respectively. The plaintiff did not respond. On May
30, 2014 CB5 Hospitality Consulting Group, LLC, CB5 Restaurant Group, LLC,
and Kathleen Nguyen filed a motion to dismiss, focusing on the issue of
standing.
For the reasons that follow, the defendants‟ motion to
dismiss for lack of subject matter jurisdiction is GRANTED.
FACTS
The complaint alleges the following:
Ryder is not a resident of this District. On the date of
this filing he resides in the State of New York but is
considered a resident of Massachusetts.
Jennifer Morelli (a.k.a. Jennifer Pennette) is an
individual who may or may not reside in this District. She
formerly resided at 345 Round Hill Road in Greenwich,
Connecticut.
C.P. and M.P., minor children of or about three years of
age are, upon information and belief, the children of Jennifer
Morelli. Frederick W. Morelli, upon information and belief, is
the brother of Jennifer Morelli, and has a residence in Bucks
County, Pennsylvania.
Clare Deyo‟s place of residence is unknown.
The complaint alleges Jennifer Morelli submitted a rental
application for 345 Round Hill Road Greenwich, Connecticut
(hereafter the “property”) using false statements on the rental
application. The complaint also alleges that Jennifer Morelli,
her children, and Frederick Morelli damaged the property. The
complaint further alleges that “[h]ad it not been for the
negligence Coldwell, Realogy, Landlord Services Co, the toxic
2
Morelli would have never gained possession of the estate or had
access to create the physical damage (by her, her unattended
slovenly children or brother).” Advent-Wallach, Glover, Deyo,
and Nguyen are alleged to have, “foisted” the “gross
misrepresentations regarding Morelli‟s and CB5 insurance
coverage.”
The complaint does not allege that Ryder is the landlord or
homeowner of the property. The complaint states that the
landlord is a real estate trust.3
STANDARD
A court must grant a motion to dismiss brought pursuant to
Fed. R. Civ. P. Rule 12(b)(1) where a plaintiff has failed to
establish subject matter jurisdiction.
States, 201 F.3d 110 (2d Cir. 2000).
Markarova v. United
In analyzing such a motion
to dismiss, the court must accept all well pleaded factual
allegations as true and must draw inferences in favor of the
plaintiff.
2001).
Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir.
Where a defendant challenges the district court‟s
subject matter jurisdiction, the court may resolve disputed
factual issues by reference to evidence outside the pleadings,
3
Specifically, the complaint states that “[t]he original landlord SFSK
Dependant Trust, an inter vivos trust was revoked by the Grantor/Settlor,
(the plaintiff in this action) at some moment and time near or at the end of
2011. The plaintiffs interest in the property, chattels, fixtures and
adjustments were instituted two times thereafter. First to SFSK Trust LTD,
then split off again to SFK Trust LTD, with the plaintiff controlling major
portions of each, all at other times and then formatted to include adult
children at other times. Then fully back to the plntf.”
3
such as affidavits. Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006,
1011 (2d Cir. 2000).
“The district courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs, and is
between . . . Citizens of different States.” 28 U.S.C. §
1332(a)(1). That is, 28 U.S.C. 1332(a)(1) “requires complete
diversity of citizenship, and it is thus congressionally
mandated that diversity jurisdiction is not available when any
plaintiff is a citizen of the same State as any defendant.” Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 366 (1978).
When a defendant moves for dismissal under Fed. R. Civ. P.
12(b)(1), “as well as on other grounds, the court should
consider the Rule 12(b)(1) challenge first since if it must
dismiss the complaint for lack of subject matter jurisdiction,
the accompanying defenses and objections become moot and do not
need to be determined.” Rhulen Agency, Inc. v. Alabama Ins.
Guaranty Ass‟n, 896 F.2d 674 (2d Cir. 1990)(internal citations
and quotation marks omitted).
DISCUSSION
a. Facial Attack
The defendants argue that “[o]n its face, the plaintiff‟s
complaint fails to establish diversity jurisdiction. The
plaintiff makes no allegations from which, even if they could be
4
proven, the citizenship of several defendants could be
discerned.” Specifically, the defendants refer to Clare Deyo,
who the complaint alleges works in Connecticut for the Glover
Agency, but
“does not sufficiently allege anything about where
she lives” because “the plaintiff admits that he does not know.”
The defendants argue that the complaint is similarly deficient
as to Jennifer Morelli, for whom the complaint alleges “may or
may not reside in this District” and as to the defendant
himself, for whom the complaint alleges “resides in the State of
New York but is considered a resident of Massachusetts.”
Ryder did not respond to this argument.
“Challenges to subject matter jurisdiction through a Rule
12(b)(1) motion to dismiss come in two different forms: facial
attacks and factual attacks.” Independence Ins. Serv. Corp. v.
Hartford Fin. Servs. Group, Inc., 2005 U.S. Dist. LEXIS 7785, at
*5 (D. Conn. May 3, 2005). “A facial attack merely questions the
sufficiency of the pleading. When a defendant raises a facial
attack to subject matter jurisdiction, the court takes the
allegations in the complaint as true and draws all inferences in
favor of the non-movant.” Russo v. City of Hartford, 184 F.
Supp. 2d 169, 178 (D. Conn. 2002).
Courts construe the pleadings of a pro se plaintiff
liberally. See e.g. Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir.2008); McEachin v. McGuinnis, 357 F.3d
5
197, 200 (2d Cir.2004). “Certainly the court should not dismiss
without granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid claim
might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (citing Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795
(2d Cir.1999); Branum v. Clark, 927 F.2d 698, 705 (2d
Cir.1991)). However, if after a liberal reading of a pro se
plaintiff‟s pleadings, 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).
The complaint‟s jurisdictional allegations are facially
insufficient. The plaintiff alleges only the employment location
for one of the defendants and nothing as to another defendant,
stating generally that she may or may not reside in Connecticut.
Were this the only insufficiency in the pleading, the court
would grant leave to amend the complaint so that the Ryder may
be given an opportunity to state a valid claim. However, as
explained below, leave to amend would not save the complaint
from want of subject matter jurisdiction.
b. Factual Attack
The defendants argue that “both Gary Ryder on the one hand,
and the defendants Clare Deyo and Vigilant Insurance Company on
the other hand, are citizens of New York for diversity
jurisdiction purposes.” Specifically, the defendants argue that
6
“[b]ecause the plaintiff is a citizen of the same state as two
of the defendants, complete diversity is absent and the
complaint must be dismissed. The defendants argue that “[t]he
complaint and other available materials indicate that the
plaintiff is a citizen of New York”4 and that “Clare Deyo is
likewise a citizen of New York5 for purposes of 28 U.S.C. §
1332.”
Ryder did not respond to this argument.
“A party's citizenship for purposes of the diversity
statute, 28 U.S.C. § 1332 (1994), is a mixed question of fact
and law.”
Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d
Cir. 2000)(citing Francis v. Goodman, 81 F.3d 5, 7 (1st
Cir.1996); State Farm Mutual Automobile Insurance Co. v. Dyer,
19 F.3d 514, 518 (10th Cir.1994); Sheehan v. Gustafson, 967 F.2d
1214, 1215 (8th Cir.1992)). The legal components are clear:
“An
individual's citizenship, within the meaning of the diversity
statute, is determined by his domicile.” Id. (citing Linardos v.
4
The defendants argue that “Mr. Ryder states that he „reside[d] in the State
of New York‟ on the date he filed his complaint – the only date that counts,
under the hornbook rule of Linardos v. Fortuna. The signature page of his
complaint lists his address as Water Mill, New York. The home improvement
contractor whose estimate he attached to his complaint corresponded with him
in Water Mill, New York. He listed himself with this court as having a New
York address on at least two occasions going back as far as 2004.”
5
The defendants state that “Ms. Deyo lives at 85 Shindagen Hill Road in
Carmel, New York. She has lived there since before the plaintiff filed his
complaint. She received her mail there, and was registered to vote in New
York. She not only lived in New York on the date of filing, but she intended
to remain there and has no plans to move. Ms. Deyo‟s domicile is therefore in
New York state, and by extension she is a citizen of New York for diversity
jurisdiction purposes.”
7
Fortuna, 157 F.3d 945, 948 (2d Cir.1998)). One is domiciled in
“the place where a person has his true fixed home and principal
establishment, and to which, whenever he is absent, he has the
intention of returning.” Linardos, 157 F.3d at 948 (2d
Cir.1998). One can have only a single domicile at any point in
time, which is established initially at birth and is presumed to
continue in the same place absent evidence to the contrary.
Palazzo ex rel. Delmage 232 F.3d at 42 (2d Cir. 2000) (citing
Rosario v. INS, 962 F.2d 220, 224 (2d Cir.1992)).
Where a jurisdictional challenge is fact-based, “no
presumptive truthfulness attaches to the complaint's
jurisdictional allegations,” and “the burden is on the plaintiff
to satisfy the Court, as fact-finder, of the jurisdictional
facts.” U.S. Airlines Pilots Ass'n ex rel. Cleary v. US Airways,
Inc., 859 F. Supp. 2d 283, 296 (E.D.N.Y. 2012)(citing Guadagno
v. Wallack Ader Levithan Assoc., 932 F. Supp. 94, 95
(S.D.N.Y.1996)). “In assessing whether it may properly exercise
jurisdiction, the court may consider affidavits or conduct
further proceedings it finds appropriate.” Id.
Here, Ryder has not rebutted the defendants‟ credible
argument that he is a domiciled in New York. He signed the
complaint as a resident of New York, with an address in Water
Mill, New York. The court will not presume that Ryder “is
considered a resident of Massachusetts”, especially where
8
evidence has been presented to the contrary. Thus, Ryder has not
sufficiently plead nor proven that he is domiciled in
Massachusetts with an intention to remain there. Having been
over two months since his response to the first filed motion to
dismiss became due6, and having not provided evidence of being
domiciled in Massachusetts, the court concludes that Ryder
remains a resident of New York, that Deyo and Vigilant are
citizens of New York, and that therefore subject matter
jurisdiction does not exist because there is not complete
diversity between the parties.7
6
The District of Connecticut‟s Local Rule of Civil Procedure 7(a)(1) states,
in relevant part, that “[f]ailure to submit a memorandum in opposition to a
motion may be deemed sufficient cause to grant the motion, except where the
pleadings provide sufficient grounds to deny the motion.”
7
Even were Ryder to respond and satisfy his burden of showing that
jurisdictional facts support diversity through submitting a driver‟s license,
voter registration, etc., the court has serious doubts as to the additional
12(b)(1) requirement of standing. To this point, the defendants argue that
“[d]espite a stream of consciousness rant for 36 pages, nowhere in the
Complaint does Ryder allege that during the period in question, March 1, 2011
through the eviction in December 2013 that he was the Owner of the Subject
Premises or the Landlord. Had he done so, that would clearly be perjury and
committing fraud on the Court. It is undeniable the Owner/Landlord was
„Samuel Verkaik as Trustee‟ for „Landlord: SFSK Dependant Trust.‟. . . [E]ven
if Ryder were to claim he was a beneficiary of the SFSK Dependant Trust,
which he had done anywhere in the 36-page Complaint, respectfully the
Complaint would still have to be dismissed as” the beneficiaries of a trust
interest do not have standing to assert the claims. For the court to find it
has subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), “a plaintiff
must allege facts demonstrating that the plaintiff is a proper party to seek
judicial resolution of the dispute.” Thompson v. Cnty. of Franklin, 15 F.3d
245, 249 (2d Cir. 1994). Standing “must affirmatively appear in the record”
and “it is the burden of the „party who seeks the exercise of jurisdiction in
his favor,‟ ... „clearly to allege facts demonstrating that he is a proper
party to invoke judicial resolution of the dispute.‟ ” Id. (quoting Warth v.
Seldin, 422 U.S. 490 518 (1975).
9
CONCLUSION
For the foregoing reasons, the motions to dismiss for lack
of subject matter jurisdiction (doc. nos. 19 and 34) are
GRANTED.
It is so ordered, this 24th day of June, 2014, at Hartford,
Connecticut.
___________/s/__________________
Alfred V. Covello
United States District Court Judge
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