Nimmons v. Hess Corporation et al

Filing 11

ORDER DISMISSING CASE sua sponte and without prejudice for lack of subject matter jurisdiction. See attached Order. The Clerk of Court is directed to close this case. Ordered by Senior Judge Denis R. Hurley on 4/14/2011. (Malley, Sean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LAKEISHA V NIMMONS,
Plaintiff,

ORDER
10 CV 5992 (DRH)(ETB)

-againstHESS CORPORATION and
WONDI DAGNATCHEW,
Defendants.
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HURLEY, Senior District Judge:
By Order dated March 2, 2011, the Court denied defendants’ request for a premotion
conference, and granted plaintiff until March 9, 2011 to voluntarily discontinue this action, or the
Court would dismiss the case sua sponte without prejudice for lack of subject matter jurisdiction.
(Docket No. 8.) Plaintiff has not withdrawn her complaint.
In order to bring a claim under diversity jurisdiction, there must be “complete diversity
between all plaintiffs and all defendants.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89
(2005)(citation omitted); see also 28 U.S.C. § 1332(a). Although plaintiff predicates federal
jurisdiction on diversity of citizenship, it is clear from a review of the record that there is not
complete diversity in this action. Plaintiff, a resident of Rockville Centre (compl. ¶ 6), and
defendant Dagnatchew, a resident of the Bronx, (Affidavit of Service, docket no. 3 at 2), are both
citizens of New York. Plaintiff’s counsel has acknowledged this fact. (Docket Nos. 5, 6.)
Therefore, this Court does not have subject matter jurisdiction under Section 1332, and the
complaint does not allege any further basis for federal jurisdiction.
Under Fed. R. Civ. P. 12(h)(3), “[i]f the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” Id.; see Manway Constr. Co. v. Housing

Authority of Hartford, 711 F.2d 501, 503 (2d Cir. 1983)(“[T]he court sua sponte, at any stage of
the proceedings, may raise the question of whether the court has subject matter jurisdiction; and
if it does not, dismissal is mandatory.”)
The Court therefore dismisses this action sua sponte without prejudice. The Clerk of
Court is directed to close this case.

SO ORDERED.
Dated: Central Islip, New York
April 14, 2011

/s/
Denis R. Hurley
Unites States District Judge