Taldone et al v. Barbash et al
Filing
5
ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiffs' applications to proceed in forma pauperis are granted and the complaint is sua sponte dismissed in its entirety pursuant to Rule 12(h)(3) of the Feder al Rules of Civil Procedure for lack of subject matter jurisdiction unless plaintiffs file an amended complaint in accordance with this Order on or before June 9, 2014. Pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, the Clerk of t he Court shall serve notice of entry of this Order upon all parties in accordance with Rule 5(b) of the Federal Rules of Civil Procedure and record such service on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purposeof any appeal. CM to pro se plaintiffs. Ordered by Judge Sandra J. Feuerstein on 5/5/2014. (Florio, Lisa)
,•
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------)(
WENDY TALDONE, THOMAS BRIKSZA,
Plaintiffs,
ORDER
14-CV-2147 (SJF)(AKT)
-againstSUSAN BARBASH, ERIC KATZ,
MARIA AVITABLE, PETE HANNAH,
BARBARA FISHKlND, JAMIE WINKLER,
as individuals and/or employees and/or
owner/operators of South Shore Restoration
Group, HARBOUR CLUB, LLC, WINKLER
REAL ESTATE, DOES 1-12,
Defendants,
FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E D N y
*
~iAY 05 2014
*
LONG ISLAND OFFICE
---------------------------------------------------------)(
FEUERSTEIN, District Judge:
On April3, 2014,pro se plaintiffs Wendy Taldone and Thomas Briksza ("plaintiffs")
filed: (1) a complaint in this Court against Susan Barbash ("Barbash"), Eric Katz ("Katz"),
Maria Avitable ("Avitable"), Pete Hannah ("Hannah"), Barbara Fishkind ("Fishkind"), Jamie
Winkler ("Winkler"), Harbour Club, LLC, Winkler Real Estate and twelve (12) unidentified
defendants named as "Does 1-12" (collectively, "defendants"), alleging state Jaw claims seeking
damages for fraud, negligence, conspiracy to defraud, breach of contract and "malice" arising
from a residential lease agreement into which the parties entered in March 2013; and (2) an
application to proceed in forma pauperis. Since plaintiffs' financial status, as set forth in their
respective declarations in support of their applications to proceed in forma pauperis, qualifies
them to commence this action without prepayment of the filing fees, see 28 U.S.C. § 1915(a)(l),
their applications to proceed in forma pauperis are granted. However, for the reasons set forth
below, the complaint is sua sponte dismissed pursuant to Rule 12(h)(3) of the Federal Rules of
Civil Procedure for lack of subject matter jurisdiction unless plaintiffs file an amended complaint
in accordance with this Order.
I.
The Complaint'
The complaint asserts forty-nine (49) causes of action against defendants for fraud (first,
eighth, fourteenth, twentieth, twenty-sixth, thirty-second, thirty-eighth and forty-fourth causes of
action), breach of contract (second, fourth, ninth, eleventh, fifteenth, seventeenth, twenty-first,
twenty-third, twenty-seventh, twenty-ninth, thirty-third, thirty-fifth, thirty-ninth, forty-first, fortyfifth and forty-seventh causes of action), negligence (third, tenth, sixteenth, twenty-second,
twenty-eighth, thirty-fourth, fortieth and forty-sixth causes of action), conspiracy to defraud
(fifth, twelfth, eighteenth, twenty-fourth, thirtieth, thirty-sixth, forty-second and forty-eighth
causes of action) and malice (sixth, seventh, thirteenth, nineteenth, twenty-fifth, thirty-first,
thirty-seventh, forty-third and forty-ninth causes of action), all arising from a contract into which
the parties entered in March 2013, pursuant to which plaintiffs leased a residence in New York
from defendants. (Compl. at 2, 6-28). Plaintiffs claim that defendants: (1) made
misrepresentations to them concerning, inter alia, the condition of the premises and the scope of
the lease, including the "property's habitability and the area of actual usage available to [them],"
(Compl. at 6), "for the express purpose of inducing [them] to enter into
* * * [the] contract to
lease said property," (ill. at 2-3, '1[3); (2) "refuse[] to maintain said property in accordance with
1
All material allegations in the Complaint are assumed to be true for the purposes of this
order, see,~ Rogers v. City of Troy. New York, 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing a
prose complaint for sua sponte dismissal, a court is required to accept the material allegations in the
complaint as true), and do not constitute findings of fact by the Court.
2
i
the law,"
Wl at 3, 'II 5), and to make necessary repairs; (3) "have repeatedly violated, and allowed
other[s] to repeatedly violate [their] right to Quiet Enjoyment and Right to Peace and Privacy,"
Wl at 4, '1[9), and "have threatened and harassed [them] by claiming the right to enter the
premises at any time they choose, and without any prior notice or consent," fui); (4) "issued
[them] a Move Out and Cleaning Cost Schedule and are threatening to hold [their] security
money***," Wl at 4, '1[10); (5) required them to obtain homeowners insurance in excess of the
value of the property that they leased; and (6) are threatening to evict them from the premises
after informing them that they could stay beyond the lease date and accepting their advance
payment of rent for the extra month. @. at 2-6).
Plaintiffs allege "Diversity and violations of Federal Laws" as the bases of this Court's
jurisdiction, claiming "upon information and belief [that] the Plaintiffs and Defendant[s] are
citizens of different States." (I d. at I). However, plaintiffs allege only that they are residents of
the State of New York,(@, and they do not allege the citizenship of any of the defendants,
although the addresses provided in the complaint for each defendant are in the State of New
York.
ilil at 40-41).
Moreover, although plaintiffs allege "other violations of the Laws, Statutes
and Codes of the United States of America," ilil at 1), they fail to identify any federal law
allegedly violated by defendants. In addition, plaintiffs allege that "[j]urisdiction is also
conferred on This Court as Defendant's [sic] conduct illegal activities across state lines, and in
the furtherance of these on-going illegal activities and schemes, use the Federal Mail System,
emails and interstate telephone lines." (I d.)
3
II.
Discussion
A.
Standard of Review
"Federal courts are courts oflimitedjurisdiction," Gunn v. Minton,- U.S.-, 133 S. Ct.
1059, 1064, 185 L. Ed. 2d 72 (2013) (quotations and citation omitted); Mims v. Arrow Financial
Services. LLC,- U.S.-, 132 S. Ct. 740, 747, 181 L. Ed. 2d 881 (2012), and may not preside
over cases absent subject matter jurisdiction. See Exxon Mobil Com. v. Allapattah Services,
Inc., 545 U.S. 546, 552, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005) (holding that federal courts
may not exercise jurisdiction absent a statutory basis); Kokkonen v. Guardian Life Ins. Co. of
Americf!, 511 U.S. 375,377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994) (holding that federal
courts "possess only that power authorized by Constitution and statute
* * *. ")
Although district
courts are required to read prose complaints liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127
S. Ct.2197, 167L. Ed. 2d 1081 (2007) (quotingEstellev. Gamble,429U.S. 97,106,97 S. Ct.
285,50 L. Ed. 2d 251 (1976)); Hogan v. Fischer, 738 F.3d 509,515 (2d Cir. 2013), and to
construe them "to raise the strongest arguments that they suggest,"Gerstenbluth v. Credit Suisse
Securities (USA)
LL~
728 F.3d 139, 142-43 (2d Cir. 2013) (quotations and citations omitted),
lack of subject matter jurisdiction cannot be waived or forfeited and may be raised at any time by
a party or by the court sua sponte. See Gonzalez v. Thaler,- U.S.-, 132 S. Ct. 641,648, 181
L. Ed. 2d 619 (2012); see also Sebelius v. Auburn Regional Medical Center,- U.S.-, 133 S.
Ct. 817, 824, 184 L. Ed. 2d 627 (2013) ("Objections to a tribunal's jurisdiction can be raised at
any time, even by a party that once conceded the tribunal's subject-matter jurisdiction over the
controversy.") Indeed, federal courts "have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v.
4
Y & H Com., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d I 097 (2006); see also Fracasse
v. People's United B!!!!k,- F.3d - , 2014 WL 1243811, at • 2 (2d Cir. Mar. 27, 2014) (holding
that federal courts must "conduct an independent inquiry into whether [they] have jurisdiction
over a matter before [they] proceed to address questions on the merits" and that "[i]f subject
matter jurisdiction is lacking and no party has called the matter to the court's attention, the court
has the duty to dismiss the action sua sponte." (quotations and citations omitted)). If a court
lacks subject matter jurisdiction, it must dismiss the action. ~Fed. R. Civ. P. 12(h)(3);
Arbaugh, 546 U.S. at 514, 126 S. Ct. 1235; Fracasse,- F.3d - , 2014 WL 1243811, at • 2;
Durant. Nichols. Houston. Hodgson & Cortese-Costa. P.C. v. Dupon~ 565 F.3d 56, 62-3 (2d Cir.
2009).
B.
Subject Matter Jurisdiction
Regarding the original subject matter jurisdiction of federal courts, the Supreme Court
has held:
"The basic statutory grants of federal-court 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 she pleads a colorable claim
'arising under' the Constitution or laws of the United States. • * •
She invokes § 1332 jurisdiction when she presents a claim between
parties of diverse citizenship that exceeds the required
jurisdictional amount, currently $75,000."
Arbaugh, 546 U.S. at 513, 126 S. Ct. 1235 (quotations and brackets in original; citation and
footnote omitted); see also Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013)
("Congress has granted district courts original jurisdiction over cases in which there is a federal
5
question, see 28 U.S.C. § 1331, and certain cases between citizens of different states, so long as
the requirements of complete diversity and amount in controversy are met, 28 U.S.C. § 1332.")
Even liberally construed, plaintiffs' complaint does not establish that this Court has
subject matter jurisdiction under either Section 1331 or Section 1332.
I.
Federal Question Jurisdiction
For subject matter jurisdiction to exist under Section 1331, the causes of action asserted
in the complaint must "aris[e] under the Constitution, laws, or treaties of the United States." 28
U.S.C. § 1331. "Under the longstanding well-pleaded complaint rule * * *, a suit 'arises under'
federal law only when the plaintiffs statement of his own cause of action shows that it is based
upon federal law." Vaden v. Discover Bank, 556 U.S. 49, 60, 129 S. Ct. 1262, 173 L. Ed. 2d 206
(2009) (quotations, brackets and citation omitted); see also New York v. Shinnecock Indian
Nation, 686 F.3d 133, 138 (2d Cir. 2012) ("A cause of action arises under federal law only when
the plaintiffs 'well-pleaded complaint' raises an issue of federal law."); Southern New England
Telephone Co. v. Global NAPs Inc. C"SNET"), 624 F.3d 123, 132 (2d Cir. 2010) ("For the
purpose of determining whether a district court has federal question jurisdiction pursuant to
Article III [of the United States Constitution] and 28 U.S.C. § 1331, the jurisdictional inquiry
depends entirely upon the allegations in the complaint and asks whether the claim as stated in the
complaint arises under the Constitution or laws of the United States." (quotations and citation
omitted)). In Gunn, the Supreme Court held:
"For statutory purposes, a case can 'aris[e] under' federal law in
two ways. Most directly, a case arises under federal law when
federal law creates the cause of action asserted. * * * As a rule of
6
inclusion, this 'creation' test admits of only extremely rare
exceptions, * * * and accounts for the vast bulk of suits that arise
under federal law. * * *
But even where a claim finds its origins in state rather than federal
law * * * we have identified a special and small category of cases
in which arising under jurisdiction still lies. * * *
[F]ederal jurisdiction over a state law claim will lie if a federal
issue is: (I) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by Congress. Where
all four of these requirements are met * * *,jurisdiction is proper
because there is a serious federal interest in claiming the
advantages thought to be inherent in a federal forum, which can be
vindicated without disrupting Congress's intended division oflabor
between state and federal courts. * * *"
Gunn,- U.S.-, 133 S. Ct. at 1064-65 (quotations and citations omitted). 2 With respect to the
third element of substantiality, "it is not enough that the federal issue be significant to the
particular parties in the immediate suit * * *." Id. at 1066. Rather, "[t]he substantiality inquiry *
* * looks instead to the importance of the issue to the federal system as a whole."
2
Id.
In Fracasse, the Second Circuit held:
"Three situations exist in which a complaint that does not allege a
federal cause of action may nonetheless 'aris[e] under' federal1aw for
purposes of subject matter jurisdiction: first, if Congress expressly
provides, by statute, for removal of state law claims as it did in the
PriceAnderson Act, 42 U.S.C. §§ 2011 et seq.,* **;second, if the
state law claims are completely preempted by federal law, such as
those that must be brought under the Labor Management Relations
Act, 29 U.S.C. §§ 141 et seq., the Employee Retirement Income
SecurityAct,29U.S.C. §§ 1001 etseq.,ortheNationalBankAct, 12
U.S.C. §§ 21 et seq., * * *; and third, in certain cases if the
vindication of a state law right necessarily turns on a question of
federal law,* * *."
Fracasse, - F.3d - , 2014 WL 1243811, at
situations exist in this case.
* 2 (citations
7
omitted). However, none of those
"A claim invoking federal-questionjurisdiction under 28 U.S.C. § 1331, * * *,may be
dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is immaterial and
made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous."
Arbaugh, 546 U.S. at 513, n. 10, 126 S. Ct. 1235 (quotations and citation omitted);~ also
SNET, 624 F.3d at 132 (holding that a district court has federal question jurisdiction over any
claim arising under the Constitution or laws of the United States "unless the purported federal
claim is clearly immaterial and made solely for the purpose of obtaining jurisdiction or is wholly
insubstantial and frivolous." (quotations and citations omitted)). "The inadequacy of a federal
claim is ground for dismissal for lack of subject-matter jurisdiction only when the claim is so
insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise
completely devoid of merit as not to involve a federal controversy." SNET, 624 F.3d at 133
(emphasis in original) (quoting In reStock Exchanges Options Trading Antitrust Litigatio!), 317
F.3d 134, 150 (2d Cir. 2003)). "A federal claim is not 'insubstantial' merely because it might
ultimately be unsuccessful on its merits." Id.
Plaintiffs allege only state law claims seeking damages for fraud, breach of contract,
negligence, malice and conspiracy to defraud in their complaint, (Compl. at 6-28), and those state
law claims do not necessarily implicate any substantial federal issue. "Because the [state law]
claims do not necessarily raise a federal issue, the substantial federal question exception to the
well-pleaded complaint rule does not apply." Shinnecock Indian Nation, 686 F .3d at 140-41.
Plaintiffs' allegation that defendants violated unspecified "Federal Laws" is clearly immaterial
and made solely for the purpose of obtaining federal question jurisdiction and, thus, is not a
colorable federal claim sufficient to provide this Court with subject matter jurisdiction under
8
Section 1331.
Moreover, to the extent the complaint can be read to assert a civil claim under the
Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § !964(c), that claim
is so completely devoid of merit as not to involve a federal controversy since, inter alia: (I)
plaintiffs do not (a) particularize the purported "illegal activities and schemes" they claim that
defendants conducted "across state lines" through the use of"the Federal Mail System, emails
and interstate telephone lines," (Campi. at I), see Lundy v. Catholic Health System of Long
Island Inc., 711 F .3d I 06, 119 (2d Cir. 2013) ("Plaintiffs must plead the alleged mail fraud with
particularity, and establish that the mailings were in furtherance of a fraudulent scheme"), (b)
allege what any particular defendant did to advance a RICO scheme, see id., or (c) plead
"particular details regarding the alleged fraudulent mailings" or communications, id.; and (2) the
complaint does not allege any facts from which it may reasonably be inferred, inter alia, (a) that
defendants engaged in a pattern of racketeering activity within the meaning of 18 U.S.C. §§
1961(1) and 1961(5), (b) that plaintiffs suffered any injury to their business or property as a result
of a RICO violation by defendants or (c) that the purported mailings and communications were
"in furtherance" of any fraudulent scheme. See Id. Accordingly, any RICO claim in the
complaint is wholly insubstantial and frivolous and, thus, is not a colorable federal claim
sufficient to provide this Court with subject matter jurisdiction under Section 1331.
Since the complaint does not allege any colorable claim arising under the Constitution or
laws of the United States, this Court does not have federal question jurisdiction under Section
1331.
9
•
2.
Diversity of Citizenship
"[T]he jurisdiction of the court depends upon the state of things at the time of the action
brought." Grupo Dataflux v. Atlas Global Group. L.P., 541 U.S. 567,570, 124 S.Ct. 1920, 158
L.Ed.2d 866 (2004) (quoting Mollan v. Torrance, 22 U.S. 537, 6 L.Ed. 154, 9 Wheat. 537, 539
(1824 )). This "time-of-filing" rule "measures all challenges to subject-matter jurisdiction
premised upon diversity of citizenship against the state of facts that existed at the time of filing
[of the complaint]- whether the challenge [to jurisdiction] be brought shortly after filing, after the
trial, or even for the first time on appeal." Grupo, 541 U.S. at 570-571, 124 S.Ct. 1920; see also
Herrick Co .. Inc. v. SCS Communications. Inc., 251 F.3d 315,329 (2d Cir. 2001) ("The
existence of federal jurisdiction over a case initially filed in federal court ordinarily depends on
the facts as they stood when the complaint was filed.") Since jurisdiction is measured as of the
time the complaint was filed, events occurring subsequently are irrelevant to a determination of
subject matter jurisdiction.
Section 1332 "require[s] complete diversity between all plaintiffs and all defendants."
Lincoln Propertv Co. v. Roche, 546 U.S. 81, 89, 126 S. Ct. 606, 163 L. Ed. 2d 415 (2005); see
also European Community v. RJR Nabisco. Inc.,- F.3d - , 2014 WL 1613878 (2d Cir. Apr. 23,
2014). "[I]t is well established that the party seeking to invoke jurisdiction under 28 U.S.C. §
1332 bears the burden of demonstrating that the grounds for diversity exist and that diversity is
complete." Herrick Co., 251 F.3d at 322-323; see also Conyers v. Rossides, 558 F.3d 137, 143
(2d Cir. 2009), cert. denied, 133 S. Ct. 328, 184 L. Ed. 2d 241 (2012) ("The party invoking
federal jurisdiction bears the burden of establishing that jurisdiction exists." (quotations and
citation omitted)).
10
•
"An individual's citizenship, within the meaning of the diversity statute, is determined by
his domicile." Palazzo ex rei. Delmage v. Corio, 232 F.3d 38,42 (2d Cir. 2000). "Domicile is
'the place where a person has his true fixed home and principal establishment, and to which,
whenever he is absent, he has the intention of returning."' Id. (quoting Linardos v. Fortun!l, 157
F.3d 945, 948 (2d Cir. 1998)). "At any given time, a person has but one domicile." Id.
Harbour Club, LLC is a limited liability company. Limited liability companies and other
unincorporated associations, e.g., partnerships, joint ventures, etc., take the citizenship of each of
their members. See Grupo Dataflux, 541 U.S. at 569, 124 S. Ct. 1920 (holding that a partnership.
"is a citizen of each State*
* * of which any of its partners is a citizen."); Bayerische
Landesbank. New York Branch v. Aladdin Capital Management LLC, 692 F.3d 42,48 (2d Cir.
2012) (holding that a limited liability company "takes the citizenship of each of its members.")
The complaint does not allege who the members of Harbour Club, LLC are, nor the type of entity
that Winkler Real Estate is, e.g., corporation, partnership, etc. 3
Plaintiffs allege only the State of their residence, not the State of their citizenship or
domicile,
see,~
Jacobs v. Patent Enforcement Fund. Inc., 230 F .3d 565, 567 (2d Cir. 2000)
(finding that the plaintiffs "had failed adequately to allege diversity * * * [because] they had
alleged only the residence, and not the citizenship (or domicile), of the parties"), and the
allegations in the complaint are insufficient to establish the citizenship of any of the defendants.
Plaintiffs' "failure to allege [the parties'] citizenship in a particular state is fatal to diversity
jurisdiction." Universal Reinsurance Co .. Ltd. v. St. Paul Fire and Marine Ins. Co., 224 F.3d
If Winkler Real Estate is a corporation, it will be "deemed to be a citizen of every State *
* * by which it has been incorporated and of the State * * * where it has its principal place of
business***." 28 U.S.C. § 1332(c)(1); ~also Bayerische Landesb!!!!k, 692 F.3d at 48.
3
11
139, 141 (2d Cir. 2000); see also Chicago. Burlington & Quincy Railway Co. v. Willard 220
U.S. 413,420-21,31 S. Ct. 460,55 L. Ed. 521 (191 I) ("[W]henjurisdiction depends upon
diverse citizenship, the absence of sufficient averments or of facts in the record showing such
required diversity of citizenship is fatal
* * *.")
Accordingly, this Court does not have diversity
of citizenship jurisdiction under Section 1332.
Nonetheless, "although a plaintiff premising federal jurisdiction on diversity of
citizenship is required to include in its complaint adequate allegations to show that the district
court has subject matter jurisdiction * * *, its failure to do so does not always require that the
action be dismissed, for 'the actual existence of diversity jurisdiction, ab initio, does not depend
on the complaint's compliance with these procedural requirements."' Durant, 565 F.3d at 64
(quoting Jacobs, 230 F.3d at 568 (emphasis in original)). In other words, "an inadequate
pleading of diversity does not in itself constitute an actual defect of federal jurisdiction." Jacobs,
230 F.3d at 568, n. 3. Courts "generally afford an opportunity for amendment of the pleading to
cure defective jurisdictional allegations unless the record clearly indicates that the complaint
could not be saved by any truthful amendment*
* *."
Durant, 565 F.3d at 65. Accordingly, this
action is dismissed pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of
subject matter jurisdiction unless on or before June 9, 2014, plaintiffs file an amended
complaint asserting: (1) the particular state of which they and each defendant are citizens
and that no defendant is a citizen of the same state as themselves; or (2) the particular
federallaw(s) allegedly violated by defendants.
Plaintiffs are advised, however, that pursuant to Rule I l(b) of the Federal Rules of Civil
Procedure:
12
•
"By presenting to the court a pleading * * *-whether by signing,
filing, submitting, or later advocating it- an * * * unrepresented
party certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under
the circumstances: * * * (2) the claims * * * and other legal
contentions are warranted by existing law or by a nonfrivolous
argument for extending, modifYing, or reversing existing law or for
establishing new law; [and] (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further
investigation or discovery * * *."
Plaintiffs are further advised that Rule ll(c) of the Federal Rules of Civil Procedure
authorizes this Court to "impose an appropriate sanction on any
* * *party that violate[s]" Rule
ll(b), Fed. R. Civ. P. ll(c)(l), including "an order to pay a penalty into court* * *,"Fed. R.
Civ. P. ll(c)(4).
Alternatively, plaintiffs may pursue the claims asserted in this action against defendants
in state court.
III.
Conclusion
For the aforementioned reasons, plaintiffs' applications to proceed in forma pauperis are
granted and the complaint is sua sponte dismissed in its entirety pursuant to Rule 12(h)(3) of the
Federal Rules of Civil Procedure for lack of subject matter jurisdiction unless plaintiffs file an
amended complaint in accordance with this Order on or before June 9. 2014. Pursuant to
Rule 77(d)(l) of the Federal Rules of Civil Procedure, the Clerk of the Court shall serve notice of
entry of this Order upon all parties in accordance with Rule 5(b) of the Federal Rules of Civil
Procedure and record such service on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
13
•
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Cqppedge v. United States, 369 U.S. 438,444-45, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).
SO ORDERED.
s/ Sandra J. Feuerstein
•
G .
Sandra J. F euerstem
United States District Judge
Dated: May 5, 2014
Central Islip, New York
14
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