Capistran v. Carbone et al
ORDER. For the reasons set forth in the attached Memorandum and order, plaintiff's complaint is dismissed with prejudice for failure to prosecute. Any appeal must be filed within thirty days after judgment is entered in this case. Fed. R. App. P. 4(a)(1)(A). The Clerk of the Court is respectfully requested to enter judgment dismissing this action and close this case. Ordered by Judge Kiyo A. Matsumoto on 4/13/2012. (Chang, Emily)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MEMORANDUM & ORDER
- against –
THEODORE CARBONE and J.B. HUNT
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MATSUMOTO, UNITED STATES DISTRICT JUDGE:
Plaintiff filed the instant action on May 26, 2011.
For the reasons set forth below, plaintiff’s complaint is
dismissed with prejudice for lack of subject-matter jurisdiction
and for failure to prosecute.
On May 26, 2011, plaintiff Antonio Capistran
(“plaintiff”) commenced this action against Theodore Carbone
(“Carbone”) and J.B. Hunt Transport, Inc. (“J.B. Hunt”)
(collectively, “defendants”), to recover for injuries plaintiff
allegedly sustained when a truck operated by Carbone and owned
by Carbone’s employer, J.B. Hunt, “started to move while the
plaintiff [who was operating a forklift] was loading stock into
the aforementioned truck.”
¶¶ 25, 26.)
(ECF No. 1, Complaint (“Compl.”)
Plaintiff alleges that plaintiff’s injuries from
the accident “were due solely and wholly as a result of the
careless and negligent manner in which the defendants owned,
operated and controlled theirs [sic] motor vehicle without this
plaintiff in any way contributing thereto.”
(Id. ¶ 28.)
I. Dismissal for Lack of Subject-Matter Jurisdiction
As an initial matter, this case must be dismissed
because the court lacks subject-matter jurisdiction.
seeking relief in the district court must at least plead facts
which bring the suit within the court’s subject matter
Espada v. New York Bd. of Elections, No. 07 Civ.
7622, 2007 WL 2588477, at *2 (S.D.N.Y. Sept. 4, 2007); see Fed.
R. Civ. P. 8(a)(1) (requiring that a complaint filed in federal
court contain “a short and plain statement of the grounds for
the court’s jurisdiction”).
This court’s subject-matter jurisdiction is limited
and is set forth generally in 28 U.S.C. §§ 1331 and 1332.
these statutory provisions, federal jurisdiction is available
only when a “federal question” is presented (see id. at § 1331)
or the parties are of diverse citizenship and the amount in
controversy exceeds $75,000 (see id. at § 1332).
below, plaintiff’s complaint fails to allege facts to support
any basis for federal jurisdiction.
A. No Basis for Federal Question Jurisdiction
Plaintiff’s complaint does not present a basis for
federal question jurisdiction because plaintiff’s action arises
out of a personal injury dispute governed by state law, not a
claim “arising under the Constitution, laws, or treaties of the
United States,” as required by 28 U.S.C. § 1331.
B. No Basis for Diversity Jurisdiction
Similarly, plaintiff’s complaint does not present a
basis for diversity jurisdiction pursuant to 28 U.S.C. § 1332
because the facts do not allege that the parties are completely
diverse and that the amount in controversy exceeds the statutory
minimum of $75,000.
1. Complete Diversity
“It is well established that for a case to come
within [diversity jurisdiction grounded in 28 U.S.C. § 1332]
there must be complete diversity and that diversity is not
complete if any plaintiff is a citizen of the same state as any
Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68
(2d Cir. 1990).
For purposes of determining diversity
jurisdiction, “a corporation shall be deemed to be 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.”
28 U.S.C. § 1332(c)(1).
Plaintiff alleges that he is a citizen of New York,
and that Carbone is a citizen of New Jersey.
(Compl. ¶¶ 1, 5.)
Plaintiff’s complaint provides no basis for discerning the
citizenship of the corporate defendant J.B. Hunt, however.
complaint does not assert the state in which J.B. Hunt is
incorporated or the state in which J.B. Hunt maintains its
principal place of business.
Instead, the complaint merely
alleges that J.B. Hunt is a “foreign business corporation”
authorized to do business under the laws of New York (see id. ¶
2), a “business corporation” authorized to do business under the
laws of New Jersey (see id. ¶ 3), and a “foreign business
corporation” authorized to do business under the laws of New
Jersey (see id. ¶ 4).
Such allegations are insufficient to
determine the citizenship of J.B. Hunt and to establish the
parties’ complete diversity.
2. Amount in Controversy
“[T]he party asserting diversity jurisdiction in
federal court has the burden of establishing the existence of
the jurisdictional amount in controversy” of at least $75,000.
Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 273 (2d Cir.
1994); see Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d
781, 784 (2d Cir. 1994) (“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.”).
Plaintiff has failed to plead any amount in
controversy, let alone an amount in excess of the statutory
minimum of $75,000.
Moreover, plaintiff has failed to plead
facts that would permit this court to conclude with “reasonable
probability” that his claim exceeds the amount-in-controversy
Accordingly, because this court lacks both federal
question jurisdiction pursuant to 28 U.S.C. § 1331, and
diversity jurisdiction pursuant to 28 U.S.C. § 1332, the court
dismisses the action for lack of subject-matter jurisdiction.
Dismissal for Failure to Prosecute
Even if plaintiff’s complaint established this court’s
subject-matter jurisdiction, however, the court would
nonetheless dismiss this action for failure to prosecute.
March 30, 2012, having observed that more than two years had
passed since plaintiff’s last activity in this action, the court
issued the following order:
ORDER: The docket reflects that no activity
has occurred since the complaint was filed
and summons was issued on 5/26/11. The
plaintiff's counsel is ordered to show cause
no later than 4/2/12, why this action should
not be dismissed for failure to effect
service of process pursuant Fed. R. Civ. P.
4(m), and failure to prosecute pursuant to
Fed. R. Civ. P. 41. PLAINTIFF IS ADVISED
THAT THIS ACTION WILL
PLAINTIFF FAILS TO COMPLY
Ordered by Judge Kiyo
BE DISMISSED IF
WITH THIS ORDER.
A. Matsumoto on
Plaintiff did not respond to the Order to Show Cause.
A district court has the inherent power to manage its
own affairs “so as to achieve the orderly and expeditious
disposition of cases.”
Lewis v. Rawson, 564 F.3d 569, 575 (2d
Cir. 2009) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 63031 (1962)).
Consistent with that inherent authority, applicable
law explicitly empowers a district court, in the exercise of its
sound discretion, to dismiss an action “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order[.]”
Fed. R. Civ. P. 41(b); see Lewis, 564 F.3d at 575 (noting that
standard of review is abuse of discretion).
on such grounds is unquestionably a “harsh remedy” that should
be used only in “extreme situations,” id. at 576 (citations
omitted), a court considering such an action should examine five
Specifically, the court should consider whether
(1) the plaintiff’s failure to prosecute
caused a delay of significant duration; (2)
plaintiff was given notice that further
defendant was likely to be prejudiced by
further delay; (4) the need to alleviate
balanced against plaintiff’s right to an
opportunity for a day in court; and (5) the
trial court adequately assessed the efficacy
of lesser sanctions.
Id. (quoting United States ex rel. Drake v. Norden Sys., Inc.,
375 F.3d 248, 254 (2d Cir. 2004)).
No one factor is
In weighing the five factors, the court must
consider the record of the entire case as a whole.
may find the standard for dismissal satisfied where it finds a
“pattern of dilatory tactics” or “an action lying dormant with
no significant activity to move it.”
Lyell Theatre Corp. v.
Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982).
All five factors weigh in favor of dismissal.
plaintiff has neither advanced his claims nor filed a
stipulation of dismissal.
Instead, plaintiff failed to comply
with this court’s order to show cause for failure to prosecute
dated March 30, 2012, and has allowed plaintiff’s case to lie
dormant with no activity on plaintiff’s part since filing his
complaint on May 26, 2011.
A lack of activity for over ten
months and plaintiff’s failure to comply with the court’s March
30, 2012 order provide a sufficient basis to justify dismissal.
See e.g., Antonio v. Beckford, No. 05 Civ. 2225, 2006 WL
2819598, at *2 (S.D.N.Y. Sept. 29, 2006) (citing decisions
dismissing cases for delays of three months or more); see also
Fed. R. Civ. P. 41(b) (conferring discretion on district court
to dismiss an action “[i]f the plaintiff fails to prosecute or
to comply with these rules or a court order”); Minnette v. Time
Warner, 997 F.2d 1023, 1027 (2d Cir. 1993) (“A district court
may, sua sponte, dismiss an action . . . pursuant to Fed. R.
Civ. P. 41(b).”).
Moreover, plaintiff has not filed returns of
service of the summons and complaint, and thus the action is
subject to dismissal pursuant to Federal Rule of Civil Procedure
Second, on March 30, 2012, the court gave plaintiff
notice that failure to respond to the order to show cause would
lead to dismissal for failure to prosecute.
Plaintiff failed to respond.
(See Order dated
case law establishes a presumption that a plaintiff’s
unreasonable delay will normally prejudice a defendant.
e.g., Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir.
1999) (citing Lyell Theatre Corp., 682 F.2d at 43).
this dormant case has remained on the court’s docket for over
ten months with no indication that plaintiff will move it
forward in the future.
Finally, no lesser sanction than
dismissal is likely to be effective in light of plaintiff’s
failure to respond to the court’s order directing plaintiff to
take action or face dismissal of his action.
and his counsel would likely have faced sanctions for failure to
comply with this court’s March 30, 2012 order to show cause, had
this case proceeded.
For the reasons set forth above, plaintiff’s complaint
is dismissed with prejudice.
Any appeal must be filed within
thirty days after judgment is entered in this case.
App. P. 4(a)(1)(A).
The Clerk of the Court is respectfully
requested to enter judgment dismissing this action and close
Brooklyn, New York
April 13, 2012
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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