Harris et al v. John Doe

Filing 4

MEMORANDUM AND ORDER: The complaint is dismissed without prejudice for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). In light of its duty to liberally construe pro se complaints, Plaintiffs are granted 30 days leave to file an amended complaint. If Plaintiffs fail to file an amended complaint within the time: allowed, judgment shall issue dismissing this action for the reasons set forth above. Although Plaintiffs paid the filing fee to bring this action, the Court certi fies pursuant to 28 U.S.C. § 1915 (a)(3) that any in forma pauperis appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45(1962).SO Ordered by Judge William F. Kuntz, II on 4/24/2018. (Tavarez, Jennifer)

IN CLERi<iS OFFICE
US DISTRICT COURT E.IJ.N.Y.

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APR 27 ?018

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BROOKLYN OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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DERRICK HARRIS and TAMMY FORD,

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Plaintiffs,

MEMORANDUM AND ORDER

17-CV-y56 (WFK)

v.
JOHN DOE,
Defendant.

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WILLIAM F. KUNTZ, II, United States District Judge:
Plaintiffs Derrick Harris and Tammy Ford, who are residents of Brpoklyn, New York, bring this

pro se action for defamation against a John Doe defendant. Plaintif~ have paid the required filing
fee. For the reasons discussed below, the action is dismissed for lac~ of subject matter jurisdiction.

See Fed. R. Civ. P. 12(h)(3).
BACKGROUND
Plaintiffs, who reside in Brooklyn, New York, bring this aclon for defamation against a
John Doe defendant, alleging that
[o]n November 4, 2015, an anonymous person began publi!ing defamatory and
libel statements about both plaintiffs in an Instagram web p~ge. Such web page is
title "Shame On You Tammy Ford," and is exclusively ma9e for the purpose of
slandering the names and reputations of the plaintiffs. Plai~tiff Derrick Harris is a
notable multi-platinum hip hop music producer, and his co plaintiff Tammy Ford
is also known as a reputable party promoter and model agetcy founder. Recently
on May 22, 2017, another hateful and threatening post was published to this web
page.
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Compl. at 1, ECF No. 1. 1

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The Court refers to the page numbers assigned by the court's Electronic Case filing ("ECF") system.
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Plaintiffs seek "compensatory and punitive damages in the amount of 1 million dollars for each
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Plaintiff, resulting from financial, repetitional [sic], emotional and professional injury to
Plaintiffs as well as any equitable relief as may be appropriate, and such other relief the Court
may deem just and proper[.]" Compl. at 4-5.
STANDARD OF REVIEW
At the pleadings stage of the proceeding, the Court must ass ,me the truth of "all wellpleaded, nonconclusory factual allegations" in the complaint. Kiob~l v. Royal Dutch Petroleum

p.s. 662 (2009)). A

Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556

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complaint must plead sufficient facts to "state a claim to relief that is plausible on its face." Bell
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At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is axiomatic th~t prose complaints are held
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to less stringent standards than pleadings drafted by attorneys, and the Court is required to read
the plaintiffs pro se complaint liberally and interpret it as raising tlie strongest arguments it

Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-93 (2d Cir. 2008).
DISCUSSION

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Although Plaintiffs are proceeding prose, and their complaint is held to less stringent
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standards than pleadings drafted by lawyers, they still must establis~ that the court has subject
matter jurisdiction over their action. Lack of subject matter jurisdiction cannot be waived and
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may be raised at any time by a party or by the court sua sponte. Se Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428,434 (2011) ("[F]ederal court have an independent
obligation to ensure that they do not exceed the scope of their juris iction, and therefore they
must raise and decide jurisdictional questions that the parties eithe overlook or elect not to
press."). If a court lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P.

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12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500,514 (2006); Durant, Nichols, Houston,
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Hodgson & Cortese-Costa, P. C. v. Dupont, 565 F.3d 56, 62-63 (2d Cir. 2009).
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The basic statutory grants of subject matter jurisdiction are c ntained in 28 U.S.C. §§

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1331 and 1332. "A plaintiff properly invokes§ 1331 jurisdiction witen [he] pleads a colorable
claim 'arising under' the Constitution or laws of the United States." /Arbaugh, 546 U.S. at 513
(citing Bell v. Hood, 327 U.S. 678, 681-85 (1946)). Plaintiffs allege/ a claim for defamation, but
"there is no federal cause of action for defamation because it 'is an i$sue of state law, not of
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federal constitutional law .... "' Singletary v. Chalifoux, 13 CV 42~5, 2013 WL 5348306, at *2
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(E.D.N.Y. Sept. 23, 2013) (Gleeson, J.) (quoting Sadallah v. City ofVtica, 383 F.3d 34, 38 (2d
Cir. 2004)). Thus, even liberally construed, plaintiffs' complaint do~s not present a federal
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question.

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Plaintiffs also fail to establish that this Court has diversity jurisdiction over their claims
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under§ 1332. A plaintiff properly invokes§ 1332jurisdiction whel he presents a claim between
parties of diverse citizenship that exceeds the required jurisdictional/ amount, currently $75,000.
28 U.S.C. § 1332. It is impossible for the Court to determine whethfr complete diversity of
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citizenship exists between plaintiffs and the defendant, as plaintiffs ~ave not provided any

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address for the John Doe defendant.

Furthermore, "[a] party invoking the jurisdiction of the fede :al court has the burden of
proving that it appears to a 'reasonable probability' that the claim isiin excess of the statutory
jurisdictional amount." Chase Manhattan Bank, NA. v. Am. Nat 'l Bank and Trust Co. of
Chicago, 93 F.3d 1064, 1070 (2d Cir. 1996) (quoting TongkookAm.1 Inc. v. Shipton Sportswear
Co., 14 F.3d 781, 784 (2d Cir. 1994)). Plaintiffs allege that "[d]efeldant's actions have left both

Plaintiffs' reputations in ruins, affecting both their current standing8i and future earning

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potential," Comp!. at 5, but they have not met their burden to a "reasrnable probability" that they

can recover more than or even close to $75,000 in this action to mee~ the statutory jurisdictional
requirement. See Chase Manhattan Bank, N.A., 93 F.3d at 1070 (a plaintiff must also show that
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the amount-in-controversy is non-speculative in order to satisfy the sfatute).
CONCLUSION

Accordingly, the complaint is dismissed without prejudice

for lack of subject matter

jurisdiction. Fed. R. Civ. P. 12(h)(3). In light of its duty to liberally:construepro se complaints,
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Plaintiffs are granted 30 days leave to file an amended complaint. stould Plaintiffs elect to file
an amended complaint, the amended complaint must set forth facts srficient to meet the
citizenship and amount in controversy requirements set forth above. IPlaintiffs are advised that

the amended complaint will completely replace the original complai*t, must be captioned
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"Amended Complaint," and must bear the same docket number as this Memorandum and Order.
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If Plaintiffs fail to file an amended complaint within the time: allowed, judgment shall
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issue dismissing this action for the reasons set forth above. Althougt Plaintiffs paid the filing
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fee to bring this action, the Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any informa
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pauperis appeal from this order would not be taken in good faith. Coppedge v. United States,
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369 U.S. 438, 444-45 (1962).
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SOORDERE~.

s/WFK

Dated: Brooklyn, New York
April 24, 2018

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