Ramos v. Zucker et al

Filing 4

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis solely for the purpose of this order and dismissing the complaint for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(h)(3). Any state-law claims are dismissed without prejudice. 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 the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Sandra L. Townes on 10/10/2014. C/M to pro se plaintiff. (Barrett, C)

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IN CLERK'S OFFICE
U.S. DISTRICT COURT EDN

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WILFRED RAMOS,

* OCT 20 2014 *

MEMORANDUM & ORDER
Plaintiff,
14-CV-5694 (SLT)(RER)

-againstGARY ZUCKER, ZUCKER & BENETT,
Defendants.
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TOWNES, United States District Judge:

On September 24, 2014, Plaintiff Wilfred Ramos, appearing pro Se, filed this action
against Defendants Gary Zucker and Zucker & Benett. The Court grants Mr. Ramos's request to
proceed informa pauperis ("IFP") solely for the purpose of this order. The complaint is
dismissed as set forth below.
BACKGROUND
The Court draws the following facts from Mr. Ramos's complaint and assumes their truth
for the purpose of this Memorandum and Order. Mr. Ramos alleges that he sustained serious
injuries in a motor vehicle accident that occurred on March 8, 2011. (Compl. 2, ECF No. 1.)
Mr. Ramos further alleges that he hired Defendants Gary Zucker and Zucker & Bennet but later
hired a new attorney because Defendants failed to adequately represent him. (Id. at 1-3.) Mr.
Ramos seeks damages of $46,440,000 and $120,000,000, respectively, in different sections of his
complaint. (Id. at 3, 5.)
DISCUSSION
Standard of Review
A complaint must plead "enough facts to state a c1 n to relief that is plausible on its
face." Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct al1eged" Ashcrofi v. Iqbal, 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 pro se complaints must contain sufficient factual
allegations to meet the plausibility standard, see Harris v. Mills, 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)).
Nevertheless, a district court must dismiss an action filed by a plaintiff proceeding IFP where 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. §
191 5(e)(2)(B).
Subject-Matter Jurisdiction
Federal courts enjoy only limited jurisdiction and "may not decide cases over which they
lack subject matter jurisdiction." Lyndonville Say. Bank & Trust Co. v. Lussier, 211 F.3d 697,
700 (2d Cir. 2000). The basic statutory grants of federal subject-matter jurisdiction are contained
in 28 U.S.C. §§ 1331 and 1332. Section 1331 provides for "[f]ederal question" jurisdiction,
§ 1332 for "[d]iversity of citizenship" jurisdiction. A plaintiff properly invokes § 1331
jurisdiction when he pleads a colorable claim "arising under" the Constitution or laws of the
United States. See 28 U.S.C. § 1331. He invokes § 1332 jurisdiction when he presents a claim
between parties of diverse citizenship that exceeds the required jurisdictional amount, currently
$75,000. See 28 U.S.C. § 1332(a).

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Lack of subject-matter jurisdiction cannot be waived and may be raised at any time by a
party or by the court sua sponte. Lyndonville, 211 F.3d at 700. If a court lacks subject-matter
jurisdiction, it must dismiss the action. Id. at 700-01; Fed. R. Civ. P. 12(h)(3).
Here, Mr. Ramos does not specifically provide a basis for jurisdiction but appears to
allude to the diversity statute because he states "the amount exceeds $75,000." (Compi. 1, ECF
No. 1.) However, Mr. Ramos has not pleaded a basis for this Court to exercise diversity
jurisdiction over this matter. To establish jurisdiction under § 1332, a plaintiff must allege that
he and all of the defendants are citizens of different states. See Gushing v. Moore, 970 F.2d
1103, 1106 (2d Cir. 1992). Plaintiff is a citizen of New York. and it appears that Defendant Gary
Zucker is also a citizen of New York. (See Compl. 1, ECF No. 1.) Accordingly, complete
diversity is lacking and Mr. Ramos cannot satisfy 28 U.S.C. § 1332. See Gushing, 970 F.2d at
1106. The Supreme Court has noted that "[un 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) (internal quotation marks and citation omitted). Mr. Ramos'

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complaint suggests no basis for federal question jurisdiction as he does not sue under the
Constitution or any federal laws. See 28 U.S.C. § 1331. Rather, Mr. Ramos's legal malpractice
claim arises under state law. See, e. g., Marshall v. Nacht, 569 N.Y.S.2d 113, 114 (2d Dep't
1991) (citations omitted) (discussing legal malpractice claims under New York law); Rene v.
Lemke, No. 99-CV-8923(FB), 2001 WL 1488595, at *1 (E.D.N.Y. Nov. 16, 2001) (declining to
exercise supplemental jurisdiction over state-law claim for legal malplractice).
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.

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The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore informapauperis status is denied for the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

AANDRA

United States District Judge
Dated:

&tftk1

IV / C201

Brooklyn, New York