Catanese v. Board Of Directors et al

Filing 4

MEMORANDUM AND ORDER: The Court grants plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, solely for the purpose of this Order. The complaint is dismissed for lack of subject matter jurisdicti on. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge Jack B. Weinstein, on 1/19/2013. C/mailed to pro se Plaintiff. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

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IN CLERK'S OFFICJh H.Y
U.S. DISTRICT COURT
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* JAN 2 '3 2013 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

BROOKLYN QFF\CE

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MINNA CATANESE,

MEMORANDUM AND ORDER
13 CV 292 (JBW)

Plaintiff,
-againstBOARD OF DIRECTORS TIME WARNER;
ESTHER BAER,
Defendants.

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WEINSTEIN, United States District Judge:

On January 14,2013, plaintiff filed this pro se action. The Court grants plaintiffs request
to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, solely for the purpose of this order.
The complaint is dismissed for lack of subject matter jurisiction.
Background
It is difficult to discern what claims plaintiff is asserting in her complaint. Plaintiff

appears to allege that the apartment directly below hers was renovated, and that as a result
plaintiff suffered carbon monoxide poisoning. CompI. at 2. Plaintiff further alleges that her
personal information including her social security number, her bank account and her mail was
stolen. CompI. at 3. Plaintiff seeks to have her "identity restored, [her] electricity and gas
restored." Compl. at 3. Moreover, plaintiff wants the "rumors to stop," and to know "who is
breaking into her apartment" and "censoring" her mail. CompI. at 3.
Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis
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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).

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 (2007);
Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiffv. Sealed Defendant #1,537 F.3d 185,
191-93 (2d Cir. 2008).
Moreover, at the 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, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal. 556 U.S. 662, 129
S.Ct. 1937, 1949-50 (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). "A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at
1949 (citations omitted). While "detailed factual allegations" are not required, "[a] pleading that
offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will
not do.'" Id. (quoting Twombly, 550 U.S. at 555).

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Discussion
Federal courts are courts of limited jurisdiction and may not preside over cases if they
lack subject matter jurisdiction. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986): Lyndonville Sav. Bank & Trust Co. v. Lussier. 211 F.3d 697, 700-01 (2d Cir. 2000).
Lack of subject matter jurisdiction cannot be waived and may be raised at any time by any party
or by the Court sua sponte. Bender, 475 U.S. at 541
The basic statutory grants of subject matter jurisdiction are contained in 28 U.S.C. §§
1331 and 1332. Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006). Section 1331 provides
federal question jurisdiction and Section 1332 provides jurisdiction based on diversity of
citizenship. Id. Moreover, "[t]he party invoking federal jurisdiction bears the burden of
establishing that jurisdiction exists." Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)
(quoting Sharkey v. Quarantine, 541 F.3d 75,82 (2d Cir. 2008)) (internal quotation marks
omitted). Here, plaintiff has not alleged complete diversity jurisdiction. While plaintiff is
domiciled in New York state she alleges that one defendant resides in New York and one
defendant resides in Peru. See Conyers, 558 F.3d at 143 (the party invoking federal jurisdiction
has the burden of establishing jurisdiction); Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir.
1992) ("complete diversity [required] between all plaintiffs and all defendants"); see also
Gurney's Inn Resort & Spa Ltd. v. Benjamin. 743 F.Supp.2d 117, 120 (E.D.N.Y. 2010).
The Supreme Court has provided that "[i]n the absence of diversity of citizenship, it is
essential to jurisdiction that a substantial federal question should be presented." Hagans v.
Lavine. 415 U.S. 528, 537 (1974) (quoting Ex parte Poresky, 290 U.S. 30, 31-32 (1933)). "A
plaintiff properly invokes § 1331 jurisdiction when [he] pleads a colorable claim 'arising under'

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the Constitution or laws of the United States." Arbaugh, 546 U.S. at 513 (citing Bell v. Hood,
327 U.S. 678, 681-85 (1946)). As submitted, plaintiffs complaint fails to present a federal
question. Although this Court is sympathetic to plaintiffs situation, it lacks federal subject
matter jurisdiction to adjudicate this case.
Conclusion
Accordingly, the complaint filed in forma pauperis is dismissed for lack of subject matter
jurisdiction. Fed.R.Civ.P. 12(h)(3); 28 U.S.C. § 1915(e)(2)(b). The Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore informa

pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
So ORDERED.

United States District Judge
Dated: Bro~17' New York

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2013

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