Shin v. Oikos Development LLC

Filing 4

MEMORANDUM AND ORDER dated 7/14/14 that the complaint is dismissed for lack of subject jurisdiction. Any state law claims are dismissed without prejudice. Although plaintiff paid the filing fee to commence this action, the Court certifies that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. ( Ordered by Judge Sandra L. Townes on 7/14/2014 ) c/m (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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YOUNG SHIN,

8ROOKLYN OFFICE

Plaintiff,

MEMOMNDUM
AND ORDER

-againstOIKOS DEVELOPMENT LLC,

14-CV-4133 (SLT) (LB)
Defendant.

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TOWNES, United States District Judge:
On July 3, 2014, plaintiff Young Shin, appearing prose, filed this action against
defendant. Plaintiff paid the requisite filing fee to commence this action. The complaint is
dismissed as set forth below.
Background
Although not a model of clarity, plaintiff appears to allege that her landlord exposed her
to gas poisoning and mold from July 1, 2011 to May 15, 2012 in her basement apartment at 14915 Barclay A venue in Flushing, Queens. Plaintiff alleges that jurisdiction is based on
"negligence and/or intentionally inflicting hann on gas leakage on & off, gas poisoning, cruel
hazard envirorunent .... " Compl. at 1. In addition to plaintiff's sparse statement, she includes
statements from friends, medical reports, inspection reports from the New York City Department
of Health and Mental Hygiene, Division of Environmental Health, and photographs. Plaintiff
seeks damages and a "proper punishment" against the landlord. Id.
Standard of Review
A complaint must plead "enough facts to state a claim to relief that is plausible on its
face." Bell Atlantic Coro. 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

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inference that the defendant is liable for the misconduct alleged." Ashcroft v. Igbal, 556 U.S.
662, 678 (2009). Although all allegations contained in the complaint are assumed to be true, this
tenet is "inapplicable to legal conclusions." Id. While prose complaints must contain sufficient
factual allegations to meet the plausibility standard, see Harris v. ~ 572 F.3d 66, 72 (2d Cir.
2009), the Court reviews such allegations by reading the complaint with "special solicitude" and
interpreting the allegations to raise the "strongest arguments that they suggest" Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam); see also Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble. 429 U.S. 97, 106 (1976)) (internal
quotation marks omitted)). On the other hand, "a complaint need not pin plaintiffs claim for
relief to a precise legal theory." Skinner v. Swither, 131 S.Ct. 1289, 1296 (2011 ). All that is
required is "a plausible 'short and plain' statement of the plaintiffs claim, not an exposition of
his legal argument." Id.
Even if plaintiff has paid the court's filing fee, a district court may dismiss the action, sua

sponte, if it determines that the action is frivolous, see Fitzgerald v. First East Seventh Street
Tenants Corn., 221 F.3d 263, 363-64 (2d Cir. 2000); ~also Hqwkins-El III v. AIG Fecleral
Savings Banks, 224 F. App'x 394, 395 (2d Cir. June 18, 2009) (affirming district court's sua

sponte dismissal of fee-paid frivolous complaint), or that the court lacks subject matter
jurisdiction. Fed. R. Civ. P. 12(hX3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999); Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001); Fed. R. Civ. P. 12(h)(3).
Discussion
Although the Court is sympathetic to the allegations raised in plaintiffs complaint, the
Court does not have subject matter jurisdiction over plaintiffs claims against her landlord.
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Federal courts are courts of limited jurisdiction and may not preside over cases if they lack
subject matter jurisdiction. Lvndonville Sav. Bank & Trust Co. v. Lussier, 211F.3d697, 700-01
(2d Cir. 2000). The basic statutory grants of federal-court subject-matter jurisdiction are
contained in 28 U.S.C. §§ 1331and1332. Section 1331 provides for "[f]ederal-question"
jurisdiction, and § 1332 for "[d]iversity of citizenship" jurisdiction. A plaintiff properly invokes

§ 1331 jurisdiction when she pleads a colorable claim "arising under" the Constitution or laws of
the United States. She invokes § 1332 jurisdiction when she presents a claim between parties of
diverse citizenship that exceeds. the required jurisdictional amount, currently $75,000. See §
1332(a).
Here, plaintiffs complaint alleging that she was exposed to gas and mold when she
rented a basement apartment at 149-15 Barclay Avenue in Flushing, Queens, arises under state
law, and does not suggest a basis for either federal question or diversity jurisdiction.

See,~.

Kheyn v. City of New York, Nos. 10-CV-3233, 10-CV-3234 (SLT), 2010 WL 3034652
(E.D.N.Y. Aug. 2, 2010) (citing cases); Rosquist v. St. Marks Realty Assoc .. LLC, No. 08-CV2764 (NGG), 2008 WL 2965435 (E.D.N.Y. Aug. 1, 2008) (citations omitted) (finding no subject
matter jurisdiction over claims arising from plaintiffs disputes with his landlord and an eviction
proceeding). Plaintiff may be able to pursue her claims in a state court, but she cannot do so in
this court.

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Conclusion
Accordingly, the complaint is dismissed for lack of subject matter jurisdiction. Fed. R.
Civ. P. 12(h)(3). Any state law claims are dismissed without prejudice. Although plaintiff paid
the filing fee to commence this action, 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 for ma pauperis status is denied for
the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

/s/(SLT)

I

SANDRA L. TOWNES ) .
United States District Judge

Dated: Brooklyn, New York
1u1y
2014

/JI ,

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