Wendt v. United States Department of Agriculture Farm Service Agency et al

Filing 15

MEMORANDUM-DECISION AND ORDER : for the reasons stated in this Order, it is hereby ORDERED, that Magistrate Judge David E. Peebles' August 13, 2012 12 Report-Recommendation and Order is ADOPTED in its entirety; and it is further ORDERED, tha t Wendt's Amended Complaint (Dkt. 11) is DISMISSED without leave to renew; and it is further ORDERED, that the Clerk close this case; and it is further ORDERED, that the Clerk provide a copy of this Memorandum-Decision and Order to the parties by certified mail. Signed by Chief Judge Gary L. Sharpe on 9/5/2012. (Attachments: # 1 Copy of Report-Recommendation and Order of Magistrate Judge David E. Peebles datede 8/13/2012) (sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
___________________________________
DONALD P. WENDT,
Plaintiff,
Civ. Action No.
5:12-CV-0342 (GLS/DEP)

v.

UNITED STATES DEPARTMENT OF
AGRICULTURE FARM SERVICE AGENCY,
et al.,
Defendants.
____________________________________
APPEARANCES:
DONALD P. WENDT, Pro Se
1435 Quaker Road
Macedon, New York 14502

DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT, RECOMMENDATION AND ORDER
Presently before the court for review is an amended complaint filed
by plaintiff Donald P. Wendt, who is proceeding pro se and was granted
leave to proceed in forma pauperis (“IFP”). Having carefully reviewed

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plaintiff’s amended complaint and concluded that it fails to rectify the fatal
deficiencies in plaintiff’s original pleading that were identified in my report
and recommendation of May 2, 2012, I recommend that the amended
complaint be dismissed.
I.

BACKGROUND
Plaintiff filed this action on February 28, 2012 against the United

States Department of Agriculture (“USDA”), three agencies within the
USDA, and fourteen of its employees, alleging a host of both tort and
breach of contract claims, apparently related to the administration and
termination of a contract between plaintiff and the USDA, seeking
compensatory and punitive damages in an unspecified amount. Dkt. No.
1. Along with his complaint, plaintiff filed an application to proceed IFP.
Dkt. No. 2.
Following my initial review of plaintiff’s complaint pursuant to 28
U.S.C. § 1915, I issued a report to Chief Judge Gary L. Sharpe, who is
assigned to the matter, recommending that the complaint be dismissed in
its entirety, with leave to replead. See Dkt. No. 5. That recommendation
was based upon the fact that even when broadly construing plaintiff’s
complaint and affording him the special leniency to which he is entitled as
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a pro se litigant, I could not identify a plausible claim within this court’s
jurisdiction. Id. Though it seemed possible that plaintiff could allege a
breach of contract claim within the court’s jurisdiction under the Tucker
Act, 28 U.S.C. § 1491(a)(1), in his original pleading plaintiff failed to show
that the value of any such claim was $10,000 or less, and thus within the
court’s jurisdiction.1 Moreover, with respect to plaintiff’s claims for
misrepresentation, fraud, and intentional interference with contract, as well
as those against the named agencies and individual defendants, it was
clear to me that the court lacks subject matter jurisdiction over those
claims. See Dkt. No. 5 at 14-16.
Adopting my recommendation in full, by order dated May 24, 2012
Chief Judge Sharpe dismissed plaintiff’s complaint in its entirety, with
prejudice as to any claims for misrepresentation, fraud, and intentional
interference with contract alleged under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, as well as those against the
named agencies and individual defendants, and otherwise providing
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As noted in my report and recommendation of May 2, 2012, for claims
exceeding $10,000 “the Tucker Act vests exclusive jurisdiction in the Court of Federal
Claims.” Spinale and G & T Terminal Packaging Co., Inc. v. United States Dep’t of
Agric., No. 05 Civ. 9294(KMV), 2007 WL 747803, at *2 (S.D.N.Y. 2007) (citing 28
U.S.C. § 1346(a)(2)).
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plaintiff with leave to file an amended complaint within thirty days. Dkt.
No. 6. Plaintiff filed an amended complaint on August 2, 2012, which the
clerk has forwarded to me for review.2 Dkt. 11.
II.

DISCUSSION
As was explained in my earlier report and recommendation,

jurisdiction is threshold question and one that the court may raise sua
sponte; where jurisdiction is lacking, “dismissal is mandatory.” United
Food & Commercial Workers Union, Local 919, AFL-CIO v. Centermark
Prop. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994); see also
Fed.R.Civ.P. 12(h)(3). Plaintiff’s amended complaint is essentially the
same as his original filing except for the addition of three paragraphs
providing additional factual detail regarding his agreement with the USDA
and the fact that he seems to have parsed out the claims he has alleged
against the defendants in the “cause of action” section of his amended
complaint, whereas these same claims were grouped into paragraphs in
his original pleading. See Amended Complaint (Dkt. No. 11) ¶¶ 20-23 and

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Construing plaintiff’s June 1, 2012 filing as an objection to my report and
recommendation, Chief Judge Sharpe declined to rescind his previous order adopting
my recommendation in full, but afforded plaintiff thirty days from the date of that
decision to file an amended complaint. See Dkt. No. 10.
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pp. 13-20. Plaintiff’s amended complaint otherwise appears identical to
the original complaint.
Plaintiff’s claims for misrepresentation, fraud, and intentional
interference with contract under the FTCA and those against the named
defendants and agencies have already been dismissed with prejudice. As
a result, the only potential claim remaining is one for breach of contract
under the Tucker Act. While providing more facts regarding the terms of
the contract at issue, plaintiff has still failed to specify the amount of
damages he claims, or to establish that his breach of contract claim does
not exceed $10,000. Plaintiff therefore still has failed to establish this
court’s jurisdiction. Indeed, based upon plaintiff’s new allegations
regarding the terms of his contract with the USDA, it seems even more
likely that this matter is within the exclusive jurisdiction of the Court of
Claims.
Ordinarily, a court should not dismiss a complaint filed by a pro se
litigant without granting leave to amend at least once if there is any
indication that a valid claim might be stated. Branum v. Clark, 927 F.2d
698, 704-05 (2d Cir.1991) (emphasis added); see also Fed. R. Civ. P.
15(a) (leave to amend “shall be freely given when justice so requires”);
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see also Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003
(E.D.N.Y.1995) (leave to replead granted where court could not say that
under no circumstances would proposed claims provide a basis for relief).
“However, an opportunity to amend is not required where the plaintiff has
already been afforded the opportunity to amend.” DeViver v. Bardot, No.
8:09-CV-0925, 2009 WL 3672084, at *3 (N.D.N.Y. Oct. 30, 2009)
(Suddaby, J.) (citing cases) (footnote omitted). In this instance, plaintiff
has been apprised of the legal shortcomings of his initial complaint and
afforded the opportunity to file an amended complaint. In doing so,
however, he has failed to cure the fatal deficiencies identified in his
original pleading. For this reason, I recommend dismissal without a
further opportunity to amend.
III.

CONCLUSION
For all the foregoing reasons, as well as those set forth in my report

and recommendation of May 2, 2012, I find that plaintiff’s amended
complaint fails to set forth a plausible claim under which this court may
properly exercise jurisdiction and should be dismissed, without leave to
amend. Accordingly, it is hereby respectfully
RECOMMENDED that plaintiff’s amended complaint (Dkt. No. 11)
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be DISMISSED in its entirety, without leave to amend.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge
written objections to the foregoing report. Such objections must be filed
with the clerk of the court within FOURTEEN days of service of this report.
FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),
72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
ORDERED that the clerk of the court serve a copy of this report,
recommendation, and order upon the parties in accordance with this
court’s local rules.

Dated:

August 13, 2012
Syracuse, NY

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