Lewis v. Marzulli et al

Filing 11

ORDER. For the reasons stated herein, plaintiff may amend his complaint by October 25, 2016 to plead facts establishing federal jurisdiction. If he fails to do so by October 25, 2016, this action will be dismissed with prejudice for lack of subject m atter jurisdiction. Fed. R. Civ. P. 12 (h)(3). Plaintiff is granted leave to amend for the limited purpose of stating facts that would establish federal question or diversity jurisdiction. Defendant Jeff Bachner is dismissed with prejudice pursuant to plaintiffs September 7, 2016 letter. The Clerk of Court is respectfully requested to serve a copy of this memorandum and order on the pro se plaintiff. Ordered by Judge Kiyo A. Matsumoto on 10/7/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
OSWALD A. LEWIS,
Plaintiff,
MEMORANDUM & ORDER
16-CV-4021 (KAM)(JO)

-againstJOHN MARZULLI and JEFF BACHNER,
Defendants.
----------------------------------X

MATSUMOTO, United States District Judge:
Plaintiff Oswald A. Lewis, currently incarcerated at the
Metropolitan Detention Center in Brooklyn, New York, brings this
pro

se

defamation

action

against

two

purported

newspaper

reporters, John Marzulli and Jeff Bachner. Plaintiff has paid the
requisite filing fee to bring this action. For the reasons provided
herein, this action will be dismissed 21 days after the date of
this

order

unless

plaintiff

amends

his

complaint

to

allege

sufficient facts to establish subject matter jurisdiction.
BACKGROUND
Plaintiff alleges that Marzulli and Bachner, employees
of the New York Daily News, “published numerous untrue statements
in print and online that were outrageous, reckless and misleading”
regarding plaintiff’s arrest and criminal trial in this court.
(See ECF No. 1, Complaint (“Compl.”) at 2) 1; United States v.

1

Because plaintiff’s filings lack pagination, the court refers to the page
numbers assigned by the court’s Electronic Case Filing (“ECF”) system.

1

Lewis, No. 14-CR-523. Plaintiff argues that defendants’ defamation
of [his] character exposed the plaintiff to public contempt and
induce[d] an evil opinion of him.” (Compl. at 2.) Plaintiff seeks
retraction of the statements and unspecified damages. (Id. at 6.)
The court has considered the parties’ submissions after the filing
of the complaint, including but not limited to the defendants’
pre-motion conference letter (ECF No. 5), the plaintiff’s response
which agrees to dismiss defendant Jeff Bachner with prejudice (ECF
No. 9), and defendants’ letter dated September 13, 2016. (ECF No.
10.)
STANDARD OF REVIEW
At the pleading 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, 677-78 (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). 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 to raise
the strongest arguments it suggests. See Erickson v. Pardus, 551
U. S. 89, 94 (2007).
DISCUSSION
2

Although

plaintiff

is

proceeding

pro

se,

and

his

complaint is held to less stringent standards than pleadings
drafted by lawyers, see id., he still must establish that the court
has subject matter jurisdiction over his action. See, e.g., Rene
v.

Citibank

NA,

32

F.

Supp.

2d

539,

541-42

(E.D.N.Y.

1999)

(recognizing that a plaintiff’s “pro se status does not exempt
[him]

from

compliance

with

relevant

rules

of

procedural

and

substantive law and dismissing pro se complaint for lack of subject
matter

jurisdiction”

(internal

quotation

marks

and

citation

omitted)). Lack of subject matter jurisdiction cannot be waived
and may be raised at any time by a party or sua sponte by the
court. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,
434 (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) (“If the court determines at
any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”); Arbaugh v. Y & H Corp., 546 U. S. 500, 514
(2006) (“[W]hen a federal court concludes that it lacks subjectmatter jurisdiction, the court must dismiss the complaint in its
entirety.”).

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The

basic

statutory

grants

of

subject

matter

jurisdiction are found in 28 U.S.C. §§ 1331 and 1332. Federal
subject matter jurisdiction generally exists only where (1) the
action presents a federal question pursuant to 28 U.S.C. § 1331 or
(2) where there is diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. See Igartua v. Dept. of Homeless Svcs., Nos. 15-CV-3806,
15-CV-3807,

2015

WL

(citations

omitted).

bears

burden

the

of

4656557,
“The

at

party

*2

(E.D.N.Y.

invoking

establishing

that

Aug.

federal

5,

2015)

jurisdiction

jurisdiction

exists.”

Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009) (internal
quotation marks and citation omitted).
Here, plaintiff invokes federal question jurisdiction
pursuant to 28 U.S.C. § 1331, but “there is no federal cause of
action for defamation because it ‘is an issue of state law, not of
federal constitutional law.’” Singletary v. Chalifoux, No. 13-CV4205, 2013 WL 5348306, at *2 (E.D.N.Y. Sept. 23, 2013) (quoting
Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004)). Thus,
even liberally construed, plaintiff’s complaint does not present
a federal question. Plaintiff’s complaint might also be read to
assert a claim for false light/invasion of privacy. (See Compl. at
3.) There is no cause of action under New York law for false
light/invasion of privacy, however. See Wright v. Belafonte, No.
12-CIV-7580, 2014 WL 1302632, at *2 (S.D.N.Y. Mar. 31, 2014)
(“‘[F]alse light/invasion of privacy’ is not a cause of action in
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New York.”). Even if false light/invasion of privacy were a cause
of action under New York state law, there would still be no federal
question jurisdiction because false light/invasion of privacy does
not present an issue of federal statutory or constitutional law.
Plaintiff explicitly pled only the existence of federal
question jurisdiction. (See ECF No. 1-1.) Plaintiff did not contend
in his complaint that diversity jurisdiction exists. In a letter
dated September 7, 2014, plaintiff refers to multiple statutes
upon which he relies for jurisdiction. (ECF No. 9.) He provides no
facts to support jurisdiction, however. Further, there is no
indication that the parties here are diverse. (See ECF No. 5, at
2 n.2.) Plaintiff appears to argue in a letter to the court,
however, that diversity jurisdiction exists. (See ECF No. 9, at 1,
5.) Accordingly, plaintiff will be provided an opportunity to amend
his complaint for the limited purpose of stating facts that would
establish diversity of citizenship.
CONCLUSION
Accordingly,

plaintiff

may

amend

his

complaint

by

October 25, 2016 to plead facts establishing federal jurisdiction.
If he fails to do so by October 25, 2016, this action will be
dismissed with prejudice for lack of subject matter jurisdiction.
Fed. R. Civ.

P. 12 (h)(3). “Regardless of whether a plaintiff has

paid the filing fee or not, a district court may dismiss the case,
sua

sponte,

if

it

determines

that
5

it

lacks

subject

matter

jurisdiction over the action.” Giovacco v. Hickey, No. 10-CV-5389,
2010 WL 5071493, at *1 (E.D.N. Y. Dec. 7, 2010). Plaintiff is
granted leave to amend for the limited purpose of stating facts
that would establish federal question or diversity jurisdiction.
Defendant Jeff Bachner is dismissed with prejudice pursuant to
plaintiff’s

September

7,

2016

letter.

The

Clerk

of

Court

is

respectfully requested to serve a copy of this memorandum and order
on the pro se plaintiff.
SO ORDERED.
Dated:

October 7, 2016
Brooklyn, New York
_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

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