Fetman v. Markowitz

Filing 6

MEMORANDUM DECISION AND ORDER granting [] Motion for Leave to Proceed in forma pauperis. The complaint is dismissed with leave to amend. No summons shall issue at this time and all further proceedings be stayed for 20 days or until further order of the Court. 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 the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920 (1962). ( Ordered by Judge Brian M. Cogan on 10/1/2015 ) c/m (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
C/M
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------- X
:
JACOB FETMAN,
:
Plaintiff,
: MEMORANDUM DECISION &
: ORDER
- against :
: 15 Civ. 5541 (BMC)(LB)
DAVID MARKOWTIZ,
:
:
Defendant.
:
:
----------------------------------------------------------- X
COGAN, District Judge.
By Order dated September 22, 2015, the United States District Court for the Southern
District of New York transferred the instant pro se action to this Court. Plaintiff asserts that
federal subject matter jurisdiction is predicated upon diversity and federal question jurisdiction.1
The Court grants plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a). For the reasons discussed below, the complaint is dismissed with leave to amend.
BACKGROUND
Plaintiff’s complaint alleges defendant made false statements and committed perjury
during the course of a grand jury proceeding hearing, and implies that he was indicted as a result
of these statements. Plaintiff seeks an Order compelling Markowitz “to contact the Brooklyn
DA, admit his perjury and give accurate testimony to the district attorney prosecuting the case.”
He also seeks “monetary and compensatory damages … to be decided at trial.”

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This is at least the fifth lawsuit that plaintiff has filed. See Fetman v. Markowitz, 15 Civ. 5541 (filed Sept. 24,
2015); Fetman v. Lipsett, 15 Civ. 5510 (filed Sept. 21, 2014); Fetman v. Aish Hatorah International, 15 Civ. 5322
(filed Sept. 11, 2015); Fetman v. Project Inspire, Inc., 15 Civ. 5320 (filed Sept. 11, 2015).

DISCUSSION
I. Lack of Subject Matter Jurisdiction
Lack of subject matter jurisdiction cannot be waived and may be raised at any time by a
party or by the court sua sponte. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,
434, 131 S. Ct. 1197, 1202 (2011) (“[F]ederal courts have an independent obligation to ensure
that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press.”). If a court lacks
subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3); Arbaugh v.
Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244 (2006).
The basic statutory grants of subject matter jurisdiction are contained in 28 U.S.C. §§
1331 and 1332. Federal subject matter jurisdiction exists only where the action presents a
federal question pursuant to 28 U.S.C. § 1331, or where there is diversity jurisdiction pursuant to
28 U.S.C. § 1332. See Arbaugh, 546 U.S. at 513, 126 S. Ct. at 1244. A plaintiff properly
invokes § 1332 when he presents a claim “between parties of diverse citizenship that exceeds the
required jurisdictional amount, currently $75,000.” Id. “The 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. Quarantillo, 541 F.3d 75, 82 (2d Cir. 2008)) (internal
quotation marks omitted).
Plaintiff attempts to invoke the federal question jurisdiction of this Court by asserting a
claim for violations of 18 U.S.C. § 1623, which addresses false declarations before a jury or
grand jury. However, this federal criminal statute does not provide a private right of action. See
Campbell v. Bank of New York Mellon Trust Co., No. 11 Civ. 1588, 2012 WL 2952852, at *13

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(S.D.N.Y. May 8, 2012), report and recommendation adopted sub nom., Campbell v. Bank of
New York Trust Co., No. 11 Civ. 1588, 2012 WL 2953967 (S.D.N.Y. July 18, 2012). Only the
United States Attorney can bring proceedings under that statute. Accordingly, plaintiff has not
established federal question jurisdiction.
Nor has he made sufficient allegation to establish diversity jurisdiction. Although
plaintiff alleges that he and defendant are citizens of different states, he has not alleged that the
amount in controversy has been satisfied. Failure to do so results in a lack of subject matter
jurisdiction. See Chase Manhattan Bank, N.A. v. Am. Nat’l Bank and Trust Co. of Chicago, 93
F.3d 1064, 1070 (2d Cir. 1996) (quoting Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d
781, 784 (2d Cir. 1994)). Plaintiff has failed to plead any factual allegations to show that this
Court has diversity jurisdiction over his claim.
II. Failure to State a Claim
Under 28 U.S.C. § 1915(e)(2)(B)(ii), a district court shall dismiss an in forma pauperis
action where it is satisfied that the action “fails to state a claim on which relief may be granted
… .” ). Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss
legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
At the pleadings stage of the proceeding, the Court must assume the truth of “all wellpleaded, 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, 127 S. Ct. 1974 (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, 556

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U.S. at 678, 129 S. Ct. at 1949. 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 plaintiff's pro
se complaint liberally and interpret it raising the strongest arguments it suggests. Erickson v.
Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537
F.3d 185, 191-93 (2d Cir. 2008).
Notwithstanding the obligation to review plaintiff’s complaint in its most favorable light,
I can discern no plausible cause of action. Plaintiff simply alleges that defendant gave false
testimony during a grand jury proceeding. The complaint makes it clear that Markowitz is a
private citizen and was testifying as such before the grand jury; therefore, there can be no civil
rights claim under 42 U.S.C. § 1983, which requires that the defendant act under color of state
law. I am unaware of state-law action that would permit recovery simply for giving testimony to
a grand jury that a plaintiff contends is false.
CONCLUSION
Plaintiff’s complaint is dismissed for lack of subject matter jurisdiction and failure to
state a claim. See Fed. R. Civ. P. 12(h)(3); 28 U.S.C. § 1915(e)(2)(B). In light of plaintiff’s pro
se status, he is granted twenty (20) days to file an amended complaint that cures these
deficiencies. See Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000).
The amended complaint must be captioned as an “Amended Complaint” and bear the
same docket number as assigned this Order. No summons shall issue at this time and all further
proceedings shall be stayed for twenty (20) days or until further order of the Court. If plaintiff
fails to file an amended complaint within twenty (20) days of the date of that this order is entered
on the docket, the Court shall enter judgment accordingly. If submitted, the amended complaint

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will be reviewed for compliance with this order and for sufficiency under 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 in forma pauperis status is denied for the purpose of any appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920 (1962).

SO ORDERED.

Digitally signed by Brian M.
Cogan
U.S.D.J.

Dated: Brooklyn, New York
October 1, 2015

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