Maitland et al v. Lunn et al
Filing
58
MEMORANDUM & ORDER finding as moot 52 Motion for Sanctions; finding as moot 53 Motion to Compel; granting 24 Motion to Dismiss for Failure to State a Claim; granting 24 Motion to Dismiss for Lack of Jurisdiction; Defendant Town of Hemps tead's motion to dismiss the Complaint is GRANTED (Docket Entry 24), and Plaintiffs' claims against the Town are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. For that same reason, Plaintiffs' claims against Defe ndant Nassau County Social Service are sua sponte DISMISSED WITHOUT PREJUDICE. Plaintiffs' outstanding motions are now DISMISSED AS MOOT. (Docket Entries 52, 53.) The Clerk of the Court is directed to mark this matter CLOSED and to mail a copy of this Order to Plaintiffs Edson Maitland and Edson Maitland, Jr. So Ordered by Judge Joanna Seybert on 3/4/2016. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
EDSON MAITLAND and EDSON MAITLAND, JR.,
Plaintiffs,
-against–
FAWN-NITA LUNN, TOWN OF HEMPSTEAD,
NEW YORK, and NASSAU COUNTY SOCIAL
SERVICE,
MEMORANDUM & ORDER
14-CV-5938(JS)(AKT)
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Edson Maitland, pro se
Edson Maitland, Jr., pro se.
33 Ramblewood Dr.
Palm Coast, Florida 32164
For Defendants:
Fawn-Nita Lunn
Town of Hempstead
No appearance.
Daniel James Evers, Esq.
Joseph E. Macy, Esq.
Donna A. Napolitano, Esq.
Berkman, Henoch, Peterson,
Peddy & Fenchel, P.C.
100 Garden City Plaza
Garden City, New York 11530
Federico A. Amorini, Esq.
Law Office of F.A. Amorini
16 Dolphin Dr.
Farmingdale, New York 11735
Nassau County
Social Service
Pablo A. Fernandez, Esq.
Nassau County Attorney’s Office
One West St.
Mineola, New York 11501
SEYBERT, District Judge:
Plaintiffs
are
the
owners
of
Roosevelt, New York (the “Property”).
property
located
(Compl. ¶ 16.)
in
They
bring this action against Fawn-Nita Lunn (“Lunn”),1 the Town of
Hempstead
(the
“Town”),
and
Nassau
County
Social
Service
(collectively, “Defendants”) seeking damages for unpaid rent and
property damage.
Town’s
motion
to
Currently pending before the Court is the
dismiss
the
Complaint
for
lack
of
subject
matter jurisdiction because Plaintiffs’ alleged damages do not
meet
the
minimum
jurisdictional
Docket Entry 24 at 7-10.)
requirement.
(Town’s
Br.,
For the following reasons, the Town’s
motion is GRANTED.
BACKGROUND2
On April 23, 2010, the Town entered into a Housing
Assistance Payment contract (the “HAP Contract”) with Plaintiffs
on behalf of Lunn, the lessee, of the Property.
(HAP Contract,
Because Lunn failed to answer or otherwise defend herself, the
Clerk of the Court entered a default against her on
February 8, 2016. (Docket Entry 56.)
1
The facts alleged in the Amended Complaint are presumed to be
true for the purposes of this Memorandum and Order. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 1975, 167
L. Ed. 2d 929 (2007) (“[A] judge ruling on a defendant’s motion
to dismiss a complaint must accept as true all of the factual
allegations contained in the complaint.” (internal quotation
marks and citation omitted)).
2
2
Under the HAP Contract, the Town would make certain
at 8-17.)3
payments to Plaintiffs to assist Lunn in leasing the unit.
Contract
¶
7
at
8.)
The
HAP
Contract
also
(HAP
provided,
in
pertinent part, that the Public Housing Authority (“PHA”)--in
this case, the Town--“may terminate program assistance for . . .
any grounds authorized in accordance with [the Housing and Urban
Development]
assistance
requirements.
for
automatically.”
the
If
family,
the
the
PHA
HAP
terminates
Contract
program
terminates
(HAP Contract ¶ 4(b)(2) at 10.)
Lunn entered into a rental lease with Plaintiffs for
the Property for a one-year term beginning on May 1, 2010 (the
“Lease”).
(See Lease Agreement4, Town’s Br. Ex. B, Docket Entry
24-2,
19-20.)
at
Although
Lunn
missed
rent
payments,
the
parties renewed the Lease on May 1, 2011, May 1, 2012, and again
on May 1, 2013.
(Compl. ¶¶ 18-19, 25.)
In January 2014, a Town
building inspector conducted a review of the Property and found
eight defects.
(Inspection Ltr., at 22.)5
Two months later,
Plaintiffs informed the Town that the Lease would not be renewed
The HAP Contract can be found at Town’s Br. Ex. A, Docket Entry
24-2, at 8-17. For the purposes of this Memorandum and Order,
the Court will use the page numbers generated by the Electronic
Case Filing System when referring to the Town’s exhibits.
3
The Lease Agreement can be found at Town’s Br. Ex. B, Docket
Entry 24-2, at 18-20.
4
The Inspection Letter can be found at Town’s Br. Ex. C, Docket
Entry 24-2, at 21-30.
5
3
and would end on April 31, 2014.
(Pls.’ Termination Ltr., at
33-34.)6
On April 1, 2014, the Town terminated the HAP Contract
effective May 1, 2014 because Lunn failed to provide certain
documentation,
as
required
Termination Ltr., at 36.)7
by
the
HAP
program.
(Town’s
Lunn appealed that determination, but
the Town’s decision was upheld.
(Town’s Termination Ltr. at 37-
39.)
Plaintiff
alleges
that
Lunn
refused
Property after the lease term expired.
to
vacate
the
(Compl. ¶¶ 31, 40.)
Plaintiff also alleges that Defendants owe $19,056 in unpaid
rent and $18,050 in property damage, which was caused by a “fire
bomb,” among other things.
(Compl. ¶¶ 59, 61-62, 64.)
Plaintiffs’ total damages calculation is $37,106.
Thus,
(See, e.g.,
Compl. ¶ 65.)
Plaintiffs filed this lawsuit on October 6, 2014.
The
Complaint asserts three causes of action against all Defendants:
(1) breach of contract (Compl. ¶¶ 47-66), (2) unjust enrichment
(Compl. ¶¶ 67-76), and (3) equitable estoppel (Compl. ¶¶ 78100).
The Complaint asserts an additional cause of action of
racketeering fraud scheme against Lunn.
(Compl. ¶¶ 101-06.)
Plaintiffs’ Termination Letter can be found at Town’s Br. Ex.
E, Docket Entry 24-2, at 33-34.
6
The Town’s Termination Letter can be found at Town’s Br. Ex. F,
Docket Entry 24-2, at 35-39.
7
4
Each cause of action seeks approximately $37,106 against all
Defendants--in
other
property damage.
06.)
words,
the
amount
of
unpaid
rent
and
(Compl. ¶¶ 59, 65, 69, 76, 98, 100, 102, 105-
The Complaint, construed liberally, also seeks emotional
distress damages for an unspecified amount.
(Compl. ¶ 3.)
The Town now moves to dismiss the Complaint.
Entry
24.)
In
doing
so,
the
Town
makes
three
(Docket
principal
arguments: (1) Plaintiffs’ claims seek only $37,106 in damages
against all Defendants, and thus the Court does not have subject
matter
jurisdiction
satisfy
the
to
minimum
adjudicate
them
jurisdictional
because
they
requirement
fail
(Town’s
to
Br.,
Docket Entry 24, at 7-10); (2) Plaintiffs failed to serve the
Town within 120 days of filing the Summons and Complaint (Town’s
Br. at 10-12); and (3) Plaintiffs’ claims fail to state a cause
of action against the Town, in part, because there is no privity
of contract between Plaintiffs and the Town under the Lease
Agreement
opposition
(Town’s
letter
Br.
at
that
conclusory fashion.
12-17).
rejected
Plaintiffs
the
Town’s
filed
a
arguments
short
in
a
12(b)(1),
a
(Pls.’ Opp., Docket Entry 27, at 1-2.)
DISCUSSION
I.
Legal Standard
To
plaintiff
survive
must
a
motion
establish
to
subject
dismiss
matter
under
jurisdiction.
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
5
See
In
resolving
the
motion,
the
Court
may
consider
affidavits
and
other materials beyond the pleadings to resolve jurisdictional
questions.
See id. (citing Kamen v. Am. Tel. & Tel. Co., 791
F.2d 1006, 1011 (2d Cir. 1986)).
The Court must accept as true
the factual allegations contained in the Complaint, but it will
not draw argumentative inferences in favor of Plaintiffs because
subject matter jurisdiction must be shown affirmatively.
See
Morrison
(2d
v.
Nat’l
Austl.
Bank
Ltd.,
547
F.3d
167,
170
Cir. 2008) (citations omitted).
Because Plaintiffs are litigating pro se, the Court
interprets their papers to “raise the strongest arguments that
they suggest.”
471,
474
(2d
Triestman v. Fed. Bureau of Prisons, 470 F.3d
Cir. 2006)
(internal
quotation
marks
omitted)
(collecting cases).
II.
Amount in Controversy Requirement
This Court has jurisdiction in civil actions where,
among other things, “the matter in controversy exceeds the sum
or value of $75,000, exclusive of interests and costs.”
U.S.C.
§ 1332(a).
Plaintiffs,
as
the
parties
28
invoking
jurisdiction, bear the burden of proving that their claims meet
the minimum jurisdictional amount to a “reasonable probability.”
Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784
(2d Cir. 1994); see also St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 290, 58 S. Ct. 586, 591, 82 L. Ed. 845 (1938)
6
(allocating the burden to the plaintiff because he or she “knows
or
should
know
requirement”).
whether
[the]
dismissed
is
within
the
statutory
“The amount in controversy is determined at the
time the action is commenced.”
As
claim
the
for
Supreme
lack
of
Tongkook, 14 F.3d at 784.
Court
made
subject
clear,
matter
a
case
must
be
if
it
jurisdiction
“appear[s] to a legal certainty that the claim is really for
less than the jurisdictional amount.”
Horton v. Liberty Mut.
Ins. Co., 367 U.S. 348, 353, 81 S. Ct. 1570, 1573, 6 L. Ed.
2d 890 (1961) (internal quotation marks omitted) (quoting St.
Paul Mercury, 303 U.S. at 289, 58 S. Ct. at 590).
“‘[T]he legal
impossibility of recovery must be so certain as virtually to
negat[e] the plaintiff’s good faith in asserting the claim,’”
Carling
v.
Peters,
No.
10-CV-4573,
2013
WL
865842,
at
*4
(S.D.N.Y. Mar. 8, 2013) (quoting Chase Manhattan Bank, N.A. v.
Am. Nat’l Bank and Trust Co. of Chi., 93 F.3d 1064, 1070 (2d
Cir. 1996) (first alteration in original), and any doubts are
resolved
in
Plaintiffs’
favor.
Wolde-Meskel
v.
Vocational
Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir.
1999) (recognizing “a rebuttable presumption that the face of
the
complaint
is
a
good
faith
representation
of
the
actual
amount in controversy”).
Here,
jurisdictional
Plaintiffs
requirement
cannot
to
a
7
meet
“legal
the
certainty.”
minimum
See
Horton, 367 U.S. at 353, 81 S. Ct. at 1573.
Plaintiffs state,
flatly and without more, that “[t]he amount in controversy is in
excess
of
$75,000.00
(Compl. ¶ 3.)
U.S.D
which
include
costs
and
fees.”
But that contention is belied by their damages
calculation, which amounts to $37,106 against all Defendants.
(Compl. ¶¶ 59, 64-65.)
action
seek
$19,056
Specifically, Plaintiffs’ four causes of
in
unpaid
rent
and
$18,050
in
alleged
property damage caused by the “fire bomb,” among other things.8
(Compl. ¶¶ 59, 65, 69, 76, 98, 100, 102, 105-06.)
Moreover, the
Complaint does not state that the precise amount of damages is
uncertain or that damages continue to accrue, nor do Plaintiffs
offer any clarification on their damages calculation in their
opposition letter, which simply rejects the Town’s arguments.
(See generally Pl.’s Opp.; Compl.)
Plaintiffs’ fourth cause of action--a Racketeer Influenced and
Corrupt Organization (“RICO”) claim against Lunn--fails to
advance Plaintiffs’ position. (See Compl. ¶¶ 45, 96, 101-06.)
To sustain a RICO claim, a plaintiff must allege “‘(1) conduct
(2) of an enterprise (3) through a pattern (4) of racketeering
activity.’” DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001)
(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105
S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985)). The Complaint,
however, is bereft of any evidence that Lunn defrauded
Plaintiffs through an ongoing criminal operation. (See RICO
Act, 18 U.S.C. § 1961.) Rather, it appears that Lunn may have
refused to pay rent and refused to vacate the Property. (See,
e.g., Compl. ¶¶ 21, 31, 40.) Although Plaintiffs do not discuss
the $37,106 damages figure under this cause of action, they
argue that they “have suffered loss of economic benefits.
Plaintiff[s’] property ha[s] been severely damaged and
violated.” (Compl. ¶ 105.) In other words, this RICO claim
seeks the same damages as the other claims.
8
8
To the extent the Complaint seeks emotional distress
damages, that fact makes no difference to the analysis.
(See
Compl.
seek
¶
3.)
As
an
initial
matter,
a
plaintiff
can
emotional distress damages under two theories: (1) intentional
infliction of emotional distress and (2) negligent infliction of
emotional
theory,
distress.
but
either
Plaintiffs
one
would
did
not
fail.
select
That
is
a
specific
because
both
theories require a showing of conduct that was “so outrageous in
character,
and
so
extreme
in
degree,
as
to
go
beyond
all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.”
Povich,
11
A.D.3d
120,
130-31,
781
See Sheila C. v.
N.Y.S.2d
342,
351
(1st
Dep’t 2004) (internal quotation marks and citations omitted);
Gate Techs., LLC v. Delphix Cap. Mkts., LLC, No. 12-CV-7075,
2013 WL 3455484, at *9 (S.D.N.Y. July 9, 2013) (observing that
both
theories
“require
the
same
showing
of
outrageousness”);
accord Cort v. Marshall’s Dep’t Stores, No. 14-CV-7385, 2015 WL
9582426,
at
extreme
and
susceptible
omitted).
*6
(E.D.N.Y.
outrageous
to
Dec.
29,
determination
as
a
(finding
that
“the
element
conduct
2015)
is
the
one
most
matter
of
law”)
(citation
“Such extreme and outrageous conduct must be clearly
alleged . . .,” Sheila C., 11 A.D.3d at 131 (emphasis added),
and nowhere in the Complaint do Plaintiffs assert allegations of
that magnitude.
Thus, Plaintiffs’ claims against the Town are
9
DISMISSED
WITHOUT
jurisdiction,
remaining
Inc.,
and
PREJUDICE
the
arguments.
No.
Court
See
15-CV-0086,
Oct. 21, 2015)
(“‘Article
for
need
JetBlue
2015
III
lack
WL
not
of
address
Airways
6161774,
deprives
subject
Corp.
at
federal
matter
the
v.
*1
Town’s
CopyTele
(2d
courts
Cir.
of
the
power to dismiss a case with prejudice where federal subject
matter
jurisdiction
does
not
exist.’”)
(quoting
Hernandez
v.
Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)).
For
the
same
reasons,
Plaintiffs’
claims
against
Defendant Nassau County Social Service are sua sponte DISMISSED
WITHOUT PREJUDICE.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
10
CONCLUSION
Defendant Town of Hempstead’s motion to dismiss the
Complaint is GRANTED (Docket Entry 24), and Plaintiffs’ claims
against the Town are DISMISSED WITHOUT PREJUDICE for lack of
subject matter jurisdiction.
For that same reason, Plaintiffs’
claims against Defendant Nassau County Social Service are sua
sponte DISMISSED WITHOUT PREJUDICE.
Plaintiffs’ outstanding motions are now DISMISSED AS
MOOT.
(Docket Entries 52, 53.)
The Clerk of the Court is directed to mark this matter
CLOSED and to mail a copy of this Order to Plaintiffs Edson
Maitland and Edson Maitland, Jr.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
March
4 , 2016
Central Islip, New York
11
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