Rovigo v. The Bank of New York et al
SUMMARY ORDER - That Rovigo's complaint (Dkt. No. 1) is DISMISSED for lack of subject matter jurisdiction. That defendants' motion (Dkt. No. 14) is DENIED AS MOOT. That the Clerk shall close this case. Signed by Senior Judge Gary L. Sharpe on 12/6/2016. (Copy served via regular and certified mail to Pro Se party and therefore, pursuant to Fed.R.Civ.P. 6(d), an additional 3 (three) days for service may be allowed)(jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CONNIE B. ROVIGO,
THE BANK OF NEW YORK
MELLON, as Trustee for the
Alternative Loan Trust 2005-55CB,
Plaintiff pro se Connie Rovigo commenced this action against
defendants The Bank of New York Mellon,1 as the Trustee for the
Alternative Loan Trust 2005-55CB, Select Portfolio Servicing, Inc.,
Mortgage Electronic Registration Systems, Inc., and Does 1-10 alleging a
violations of state law arising from a mortgage on a property located at 739
County Route 19, Elizaville, New York 12523. (Compl., Dkt. No. 1.)
Defendants subsequently filed a motion to dismiss. (Dkt. No. 14.)
Although not raised by either party, the court must first address
Rovigo incorrectly identified “The Bank of New York” as a defendant in her complaint.
(Dkt. No. 8, Attach. 2; Dkt. No. 14, Attach. 4 at 1 n.1.) The court directs the Clerk to amend the
caption to read “The Bank of New York Mellon.”
whether it has subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3);
Lovejoy v. Watson, 475 F. App’x 792, 792 (2d Cir. 2012) (“Where
jurisdiction is lacking, . . . dismissal is mandatory.” (internal quotation
marks and citation omitted)). Rovigo invokes this court’s diversity
jurisdiction alleging that the plaintiff and defendants are diverse and the
amount in controversy exceeds $75,000. (Compl. ¶¶ 1, 4, 6, 8, 11, 13-17,
132.) As relevant here, diversity jurisdiction over civil actions requires that
“the matter in controversy exceeds the sum or value of $75,000 . . . , and is
between citizens of different states.” 28 U.S.C. § 1332(a)(1). As such,
there must be “‘complete diversity,’ i.e. all plaintiffs must be citizens of
states diverse from those of all defendants.” Pennsylvania Pub. Sch.
Emps.’ Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d 111, 118 (2d Cir.
2014). “The party asserting jurisdiction bears the burden of proof.” Id.
Here, both Rovigo and The Bank of New York Mellon are citizens of
New York, thereby precluding complete diversity between plaintiff and
defendants. (Compl. ¶¶ 1, 4, 14-15.); see Navarro Sav. Ass’n v. Lee, 446
U.S. 458, 464-65 (1980) (holding that trustees of a business trust invoke
their own citizenship for the purposes of diversity jurisdiction). As Rovigo
has only raised state law claims to challenge the validity of her mortgage,
(see generally Compl.), the court does not have jurisdiction to hear the
case on the basis of 28 U.S.C. § 1331 either. To the extent that Rovigo
seeks leave to amend to add additional state law claims, such amendment
would be futile because the court would still lack jurisdiction. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); 28 U.S.C. § 1332(a)(1).
Accordingly, it is hereby
ORDERED that Rovigo’s complaint (Dkt. No. 1) is DISMISSED for
lack of subject matter jurisdiction; and it is further
ORDERED that defendants’ motion (Dkt. No. 14) is DENIED AS
MOOT; and it is further
ORDERED that the Clerk shall close this case; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
IT IS SO ORDERED.
December 6, 2016
Albany, New York
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