Robertson v. Visa and Mastercard Credit and Debit Cards

Filing 6

MEMORANDUM AND ORDER: Plaintiff's 4 application to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915. Since Plaintiff's complaint fails to state a claim upon which relief may be granted or assert a ba sis for federal subject matter jurisdiction, this action is hereby dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(h)(3). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal f rom this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. SO ORDERED by Judge William F. Kuntz, II on 10/7/2013. C/mailed to pro se Plaintiff via regular mail. (Latka-Mucha, Wieslawa)

FlLE.D

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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* OCT U7 2013 *

NOT FOR PUBLICAnON

BROOKLYN OFF

ICE
.

MULBAH ROBERTSON,
Plaintiff,

MEMORANDUM AND ORDER
13-CV-5077 (WFK) (LB)
(Kuntz, J.)

-againstVISA AND MASTERCARD CREDIT AND
DEBIT CARDS,
Defendants.

---------------------------------------------------------------J(
WILLIAM F. KUNTZ, II, United States District Judge
On September 5, 2013, Mulbah Robertson ("Plaintiff'), a prisoner incarcerated at
Gouverneur Correctional Facility, brought this pro se complaint against credit card issuers,
ostensibly as a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs application to proceed

in forma pauperis is granted pursuant to 28 U. S. C. § 1915. For the reasons that follow, the
Complaint is dismissed with prejudice.
BACKGROUND
Plaintiff alleges that defendants Visa and Mastercard "separately and together with banks,
violated my rights and violated antitrust laws, and caused me, Mulbah Robertson, to pay
excessive fees." Compl. at 3. He alleges that he paid "excessive fees for accepting Visa and
Master Card credit and debit cards, between January 1,2004 and December 11,2011." Id. at 4.
He states: "I'm also aware[] that on Nov[ember] 27, 2012, the court gave preliminary approval
to this settlement. I do not exclude myself from the cash settlement class."J Id. at 3. Plaintiff
J Plaintiff may be referring to a class action litigation pending in the United States District Court
for the Eastern District of New York between merchants and credit card companies alleging that
various businesses and entities paid excessive fees for accepting credit and debit cards as
payment. In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., No. 05MD-1720 (JG) (JO) (E.D.N.Y.) (Gleeson, J.). To the extent that Plaintiff believes that he
belongs to this class of merchants, he may visit the official court-authorized settlement website,
www.paymentcardsettlement.com for further information.

further alleges that the defendants "have damage [d] my credit." Id. at 4. He seeks $20 million in
damages.

DISCUSSION
The Court is mindful that "[a] document filed pro se is to be liberally construed, and a

pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citations omitted). If a liberal reading of the complaint "gives any
indication that a valid claim might be stated," the Court must grant leave to amend the complaint.
See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). "The failure in a complaint to cite a
statute, or to cite the correct one, in no way affects the merits of a claim. Factual allegations
alone are what matters." Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1988) (en bane)).
However, to survive a motion to dismiss, "a complaint must contain sufficient factual matter ...
to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Moreover, 28 U.S.C. § 19l5(e)(2)(B) requires a district court to dismiss a case if the
court determines 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." 28 U.S.C. § 1915(e)(2)(B). A plaintiff seeking to bring a lawsuit in federal court
must also establish that the court has subject matter jurisdiction over the action. See,~, Rene
v. Citibank NA, 32 F. Supp. 2d 539, 542 (E.D.N.Y. 1999) (Spatt, J.). "[F]ailure of subject matter
jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte.
If subject matter jurisdiction is lacking, the action must be dismissed." Lyndonville Sav. Bank &

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Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) (citations omitted); see Fed. R. Civ. P.
12(h)(3). Federal subject matter jurisdiction is available only when a "federal question" is
presented, or when plaintiffs and defendants have complete diversity of citizenship and the
amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332. "Federal question
jurisdiction may be properly invoked only if the plaintiffs complaint necessarily draws into
question the interpretation or application of federal law." State of New York v. White, 528 F.2d
336, 338 (2d Cir. 1975).
Plaintiff has failed to state a claim on which relief may be granted. Plaintiff brings his
action as a "Civil Rights Complaint," which is cognizable under 42 U.S.C. § 1983 ("§ 1983").
However, in order to maintain a § 1983 action, a plaintiff must allege two essential elements.
First, "the conduct complained of must have been committed by a person acting under color of
state law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citing Parratt v. Taylor, 451 U.S.
527,535 (1981), overruled on other grounds Qy Daniels v. Williams, 474 U.S. 327 (1986)).
Second, "the conduct complained of must have deprived a person of rights, privileges or
immunities secured by the Constitution or laws of the United States." Id.
Here, the only named defendants are private entities. As the Supreme Court has held,
"the under-color-of-state-Iaw element of § 1983 excludes from its reach merely private conduct,
no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
50 (1999) (quotation marks omitted). Plaintiff has not alleged that the defendants are state actors
or are acting under the authority of state law. Nor has he identified any loss of constitutionally
protected rights that would come under the ambit of § 1983.

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Plaintiff alleges that the defendants have "violated antitrust law," but has not suggested
any theory under which defendants may have colluded to raise prices or harm competition. See
Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 338 (1990) ("The antitrust laws were
enacted for the protection of competition . ... " (internal quotation marks and citations omitted));
Ruotolo v. Fannie Mae, No. 09-CV-7851, 2013 WL 989740 (S.D.N.Y. Mar. 13,2013) (Karas, J.)
(dismissing plaintiff s claims for antitrust violations where plaintiff had failed to show
defendants' conspiracy to restrain trade by fixing prices and reducing competition). As Plaintiff
has failed to state a claim under § 1983, the antitrust laws, or any other provision of federal law,
his case must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
In light of Plaintiff s pro se status, the Court has also considered whether his claims could
assert any other basis for this Court's jurisdiction. Plaintiff appears to be dissatisfied with the
fees assessed for his use of credit card services, presumably under contracts he entered into with
unidentified credit card providers. These contractual matters may be considered in state courts,
but not in federal courts in the absence of diversity jurisdiction. Plaintiff has not asserted
diversity of citizenship nor submitted facts that would suggest any reasonable probability that he
could recover more than $75,000 in a breach-of-contract action, as would be necessary to meet
the amount-in-controversy requirement for diversity jurisdiction. As Plaintiff neither raises a
question of federal law, nor asserts diversity jurisdiction, the Court has no basis for federal
subject matter jurisdiction over this action.

CONCLUSION
Since Plaintiffs complaint fails to state a claim upon which relief may be granted or
assert a basis for federal subject matter jurisdiction, this action is hereby dismissed with

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prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(h)(3). The Court
certifies pursuant to 28 U.S.c. § 1915(a)(3) that any appeal from this Order would not be taken
in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED
Dated: Brooklyn, New York
October 7-,2013

/S/ Judge William F. Kuntz, II
UNTZ, II

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