Lawson v. Cesari et al

Filing 4

ORDER & REPORT RECOMMENDATION: It is Ordered that the # 2 Motion for Leave to Proceed in forma pauperis filed by Brodice Lawson, Sr., is GRANTED. The Clerk is directed to provide a copy of Fermin v. Moriarty to plaintiff. Further it is Recommended that the # 1 Complaint filed by Brodice Lawson, Sr., be DISMISSED against defendants Cesari and Meitz WITHOUT leave to amend, and DISMISSED against defendant Utica Police Department WITH leave to amend within 30 days of any Order adopting this Repo rt and Recommendation. (Objections to R&R due by 12/9/2013, Case Review Deadline 12/11/2013) Signed by Magistrate Judge Therese Wiley Dancks on 11/20/2013. (Attachments: # 1 Caselaw - Fermin v. Moriarty) {Copy sent to pro se plaintiff by regular mail} (jmb)

Page 1
Not Reported in F.Supp.2d, 2003 WL 21787351 (S.D.N.Y.)
(Cite as: 2003 WL 21787351 (S.D.N.Y.))
170Bk351 k. Particular Claims as Fictitious
or Colorable. Most Cited Cases
Only the Westlaw citation is currently available.
Federal Courts 170B
United States District Court,
S.D. New York.
Juan FERMIN, Plaintiff,
v.
James MORIARTY, Defendant.
No. 96 Civ. 3022(MBM).
Aug. 4, 2003.
Client brought diversity action against attorney,
who represented him in connection with his sentencing after he was convicted of narcotics offenses, alleging breach of contract, malpractice, fraudulent
misrepresentation, breach of fiduciary duty, and violation of his rights under Sixth Amendment. The District Court, Mukasey, J., held that: (1) prisoner failed
to show by preponderance of evidence that he intended to remain in Pennsylvania; (2) court did not
have federal question jurisdiction over prisoner's
lawsuit; and (3) sufficient transactional relationship
did not exist between federal criminal proceeding, and
civil lawsuit brought by prisoner, to support discretionary exercise of supplementary jurisdiction over
prisoner's civil lawsuit.
Complaint dismissed with leave to amend.
West Headnotes
[1] Federal Courts 170B

359

170B Federal Courts
170BV Amount or Value in Controversy Affecting
Jurisdiction
170Bk357 Evidence
170Bk359 k. Weight and Sufficiency. Most
Cited Cases
Client's claims against attorney, alleging fraud
and seeking punitive damages, were sufficient to satisfy amount in controversy requirement under federal
diversity jurisdiction statute, since attorney did not
show to legal certainty that claim was really for less
than jurisdictional amount. 28 U.S.C.A. § 1332.
[2] Federal Courts 170B

317

170B Federal Courts
170BIV Citizenship, Residence or Character of
Parties, Jurisdiction Dependent on
170BIV(D) Evidence
170Bk317 k. Presumptions and Burden of
Proof. Most Cited Cases
Although a prisoner is presumed to retain his
former domicile, he can attempt to demonstrate that he
has established a new domicile in his state of incarceration, for the purpose of application of the diversity
jurisdiction statute. 28 U.S.C.A. § 1332.

351
[3] Federal Courts 170B

170B Federal Courts
170BV Amount or Value in Controversy Affecting
Jurisdiction
170Bk350 Fictitious or Colorable Claims

318

170B Federal Courts
170BIV Citizenship, Residence or Character of
Parties, Jurisdiction Dependent on

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Page 2
Not Reported in F.Supp.2d, 2003 WL 21787351 (S.D.N.Y.)
(Cite as: 2003 WL 21787351 (S.D.N.Y.))
170BIV(D) Evidence
170Bk318 k. Weight and Sufficiency. Most
Cited Cases
Prisoner incarcerated in Pennsylvania failed to
show by preponderance of evidence that he intended
to remain in Pennsylvania, in order for New York
court to have diversity jurisdiction over lawsuit
against New York attorney; although Pennsylvania
was where prisoner received his mail, made his telephone calls, visited with his family, received his
medical treatment, and he received educational
equivalency certificate from State of Pennsylvania,
prisoner was resident of New York when he was
convicted and prisoner did not otherwise establish that
Pennsylvania was his domicile rather than merely his
residence. 28 U.S.C.A. § 1332; Fed.R.Civ.P. 12(b)(1),
28 U.S.C.A.
[4] Federal Courts 170B

175

170B Federal Courts
170BIII Federal Question Jurisdiction
170BIII(B) Cases Arising Under the Constitution
170Bk175 k. Particular Constitutional
Guaranties in General. Most Cited Cases
District court did not have federal question jurisdiction over prisoner's lawsuit against attorney alleging violation of his Sixth Amendment rights, although
attorney represented prisoner in federal criminal case,
since attorney was not state actor. U.S.C.A.
Const.Amend. 6; 28 U.S.C. § 1331; 42 U.S.C.A. §
1983.
[5] Federal Courts 170B

192

170B Federal Courts
170BIII Federal Question Jurisdiction
170BIII(C) Cases Arising Under Laws of the
United States

170Bk192 k. Particular Cases and Questions. Most Cited Cases
District court did not have federal question jurisdiction over prisoner's lawsuit against attorney alleging breach of contract and malpractice, although
complaint alleged wrongs that occurred during ongoing federal case; attorney's representation of defendant
in federal criminal case did not transform his breach of
contract and malpractice claims into claims under
federal law. 28 U.S.C.A. § 1331.
[6] Federal Courts 170B

20.1

170B Federal Courts
170BI Jurisdiction and Powers in General
170BI(A) In General
170Bk20 Ancillary and Incidental Jurisdiction
170Bk20.1 k. In General. Most Cited
Cases
District court could, in its discretion, exercise
ancillary jurisdiction over prisoner's lawsuit against
attorney alleging breach of contract and malpractice,
for attorney's representation of prisoner in federal
criminal proceeding in same district where civil lawsuit was brought, although supplementary jurisdiction
statute did not apply to controversy. 28 U.S.C.A. §
1367(a).
[7] Federal Courts 170B

20.1

170B Federal Courts
170BI Jurisdiction and Powers in General
170BI(A) In General
170Bk20 Ancillary and Incidental Jurisdiction
170Bk20.1 k. In General. Most Cited
Cases
Ancillary jurisdiction may be exercised over a fee

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Not Reported in F.Supp.2d, 2003 WL 21787351 (S.D.N.Y.)
(Cite as: 2003 WL 21787351 (S.D.N.Y.))
dispute arising out of a criminal case in federal court.
28 U.S.C.A. § 1367(a).
[8] Federal Courts 170B

for summary judgment dismissing Fermin's claims.
For the reasons set forth below, the complaint is dismissed with leave to amend.

15

170B Federal Courts
170BI Jurisdiction and Powers in General
170BI(A) In General
170Bk14 Jurisdiction of Entire Controversy;
Pendent Jurisdiction
170Bk15 k. Federal Question Cases in
General, Claims Pendent To. Most Cited Cases
Sufficient transactional relationship did not exist
between federal criminal proceeding, and lawsuit
brought by prisoner against his attorney alleging
fraud, malpractice, and breach of contract in his representation of prisoner, to support discretionary exercise of supplementary jurisdiction over prisoner's civil
lawsuit; although prisoner's criminal case remained
before court for purpose of resentencing, prisoner's
claims against attorney did not affect resentencing
proceeding, judge did not have any special familiarity
with subject matter of prisoner's suit, and litigation of
case in federal court would have been inconvenient,
inter alia, because case involved complex issue of
state law.
Gregory Antollino, New York, NY, for Plaintiff.
James T. Moriarty, New York, NY, pro se.
OPINION AND ORDER
MUKASEY, J.
*1 Juan Fermin, convicted in this court of narcotics offenses, sues James Moriarty, the attorney who
represented him in connection with his sentencing, for
breach of contract, malpractice, fraudulent misrepresentation, and breach of fiduciary duty, and for violating his rights under the Sixth Amendment. Moriarty
moves to dismiss the complaint for lack of subject
matter jurisdiction. In the alternative, Moriarty moves

I.
The facts alleged in the complaint are as follows:
Juan Fermin is incarcerated in Allenwood, Pennsylvania. James Moriarty is an attorney licensed to practice law in the State of New York and, at the time of
the events at issue, was a member of the bar of this
court. (Compl.¶¶ 3–4)
On June 22, 1992, Moriarty and Fermin entered
into a contract. (Id. ¶ 6) The contract, which was
signed by Moriarty and Fermin's stepfather Juan
Guzman, described itself as “a draft of a retainer
agreement between James Moriarty and Juan Guzman
on behalf of Juan Fermin” that would be “more formally drafted” within ten days. (Id. Ex. 1) Under the
terms of the contract, Moriarty promised to “represent
Juan Fermin with regard [sic] his sentencing before
the United States District Court” and “in the United
States Circuit Court for the Second Circuit with regard
the appeal of his coinviction [sic] on the above indictment.” (Id.) Fermin, in turn, agreed to pay Moriarty “at least $20,000 and up to $25,000” for his services, “depending on the total amount of work involved as well as the expenses of printing the appellate
brief and appendix.” (Id.)
Over several months, Fermin paid Moriarty a total of $25,000. (Id. ¶¶ 8–14) However, Moriarty refused to perfect Fermin's direct appeal, forcing Fermin
to retain substitute counsel at an additional cost of
$35,000. (Id. ¶¶ 15–16) In order to procure the
$35,000, Fermin had to sell real property that he otherwise would have continued to manage. (Id. ¶ 17)
Despite repeated requests, Moriarty has refused to
return the unused portion of the $25,000 or even to
respond to Fermin's letters or telephone calls. (Id. ¶¶
17–19)

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Not Reported in F.Supp.2d, 2003 WL 21787351 (S.D.N.Y.)
(Cite as: 2003 WL 21787351 (S.D.N.Y.))
II.
The complaint is not a model of clarity. In the
“facts” section of the complaint, Fermin places his
specific allegations under two headings: breach of
contract and legal malpractice. Then, in the “claims
for relief” section of the complaint, Fermin adds three
additional claims, namely (i) that Fermin “violated his
fiduciary duty as plaintiff's agent”; (ii) that Fermin
“created a tort of misrepresentation”; and (iii) that
Fermin “violated Plaintiff's Sixth Amendment guarantee of effective assistance of counsel as this right is
interpreted by the laws of the United States.”
(Compl.¶¶ 37–38) Construing the complaint liberally,
as I must when the plaintiff appears pro se,FN1 see
Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30
L.Ed.2d 652 (1972), Fermin thus brings five claims
against Moriarty: breach of contract, malpractice,
fraudulent misrepresentation, breach of fiduciary
duty, and violation of the Sixth Amendment.
FN1. When he filed his complaint, Fermin
was not yet represented by counsel.
*2 Fermin seeks several remedies. First, Fermin
seeks a declaration that Moriarty's conduct amounts to
breach of contract, legal malpractice, misrepresentation, a violation of the Code of Professional Responsibility, and a Sixth Amendment violation. Second,
Fermin requests $60,000 in compensatory damages
and $40,000 in punitive damages. Finally, Fermin asks
the court to discipline Moriarty.
III.
[1] Moriarty moves to dismiss Fermin's complaint
for lack of subject matter jurisdiction under
Fed.R.Civ.P. 12(b)(1). At the time this action was
commenced, the United States Code conferred jurisdiction upon district courts if a suit was between citizens of different states and the matter in controversy
exceeded $50,000. See 28 U.S.C. § 1332(a) (1996).
Moriarty claims first, without citing any evidence in
the record or case law, that there is no diversity of
citizenship in this case because both parties are dom-

iciled in New York. (See Moriarty's Mem. of L. at 1)
Despite Moriarty's cursory treatment of the issue, I
agree with him. Although the complaint adequately
alleges that the amount in controversy is sufficient to
confer jurisdiction on this court,FN2 it does not adequately allege diversity of citizenship.
FN2. Moriarty makes a far more extensive
argument regarding the amount in controversy than he does regarding diversity. Specifically, Moriarty argues that because Fermin has not stated a cognizable malpractice
claim or a cognizable claim for punitive
damages, the amount in controversy does not
exceed $50,000. That argument is based on a
fundamental misconception about when and
how the amount in controversy is determined. Contrary to Moriarty's view, “[t]he
amount in controversy is determined at the
time the action is commenced.” Tongkook
Am., Inc. v. Shipton Sportswear Co. ., 14 F.3d
781, 784 (2d Cir.1994). Moreover, “[i]t is
well settled that ‘the sum claimed by the
plaintiff controls if the claim is apparently
made in good faith. It must appear to a legal
certainty that the claim is really for less than
the jurisdictional amount to justify dismissal.” ’ Chase Manhattan Bank, N.A. v. Am.
Nat. Bank and Trust Co. of Chicago, 93 F.3d
1064, 1070 (2d Cir.1996) (quoting St. Paul
Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 288–89, 58 S.Ct. 586, 82 L.Ed. 845
(1938)). Finally, “if punitive damages are
permitted under the controlling law, the demand for such damages may be included in
determining whether the jurisdictional
amount is satisfied.” A.F.A. Tours, Inc. v.
Whitchurch, 937 F.2d 82, 87 (2d Cir.1991).
Here, Fermin has alleged fraud against Moriarty, and conceivably could be entitled to
punitive damages if he proved that claim.
That the fraud claim or another claim might
not survive a motion to dismiss or a motion

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Not Reported in F.Supp.2d, 2003 WL 21787351 (S.D.N.Y.)
(Cite as: 2003 WL 21787351 (S.D.N.Y.))
for summary judgment is irrelevant, because
“[l]egal certainty is analyzed by what appears
on the face of the complaint; subsequent
events—such as a valid defense offered by
the defendant ..., ‘do ... not show [plaintiff's]
bad faith or oust the jurisdiction.” ’ Wolde–Meskel v. Vocational Instruction Project
Cmty. Servs., Inc., 166 F.3d 59, 63 (2d
Cir.1999) (quoting St. Paul, 303 U.S. at 289).
The Second Circuit “recognizes a rebuttable
presumption that the face of the complaint is
a good faith representation of the actual
amount in controversy.” Id. Moriarty has
done nothing to overcome that presumption.
For the purpose of § 1332(a), an individual's citizenship is determined by domicile. Williamson v.
Osenton, 232 U.S. 619, 624–25, 34 S.Ct. 442, 58
L.Ed. 758 (1914). A party's domicile is established at
the time a case is filed, Freeport–McMoRan v. KN
Energy, Inc., 498 U.S. 426, 428–29, 111 S.Ct. 858,
112 L.Ed.2d 951 (1991), and it is determined by the
party's place of residence and his intent to remain in
that place indefinitely, Miss. Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104
L.Ed.2d 29 (1989).
[2] It is well-established that a prisoner does not
acquire a new domicile when he is incarcerated in a
state different from his previous domicile. Instead, the
prisoner retains his preincarceration domicile. See 15
James Wm. Moore et al., Moore's Federal Practice ¶
102.37[8][a] (3d ed.1999) (collecting cases). In some
jurisdictions, the rule that prisoners retain their former
domicile has taken the form of an irrebuttable presumption. See id. ¶ 102.37 [8][b]. However, in the
Second Circuit, along with three other circuits, the
presumption is rebuttable; thus, although a prisoner is
presumed to retain his former domicile, he can attempt
to demonstrate that he has established a new domicile
in his state of incarceration. See Housand v. Heiman,
594 F.2d 923, 925 n. 5 (2d Cir.1979) (embracing the
“more recent trend ... in the direction of allowing a

prisoner to try to show that he has satisfied the prerequisites for establishing domicile in his place of
incarceration”); see also Sullivan v. Freeman, 944
F.2d 334, 337 (7th Cir.1991) (Posner, J.) (“The presumption is rebuttable—a prisoner might for example
decide he wanted to live in another state when he was
released and the federal prison authorities might
therefore assign him to a prison in that state, and that
would be the state of his domicile.”); Jones v. Hadican, 552 F.2d 249, 251 (8th Cir.1977) (“While retaining the usually valid presumption that a prisoner
retains his pre-incarceration domicile, [the rebuttable
presumption rule] is sufficiently flexible to allow a
prisoner to show truly exceptional circumstances
which would justify a finding that he has acquired a
new domicile at the place of his incarceration.”); Stifel
v. Hopkins, 477 F.2d 1116, 1126 (6th Cir.1973) (“We
recognize the importance of considering physical or
legal compulsion in determining whether domicile is
gained or lost, but we limit the application of involuntary presence to its operation as a presumption
ordinarily requiring more than unsubstantiated declarations to rebut.”).
*3 On its face, Fermin's complaint does not adequately allege diversity of citizenship. In order for a
prisoner to establish diversity jurisdiction based on the
theory that his place of incarceration is his domicile,
“the complaint must allege facts sufficient to raise a
substantial question about the prisoner's intention to
acquire a new domicile.” Jones, 552 F.2d at 251. Like
the plaintiff in Housand, who was also suing his former attorney for malpractice, Fermin “does not make
clear in his pleadings on what facts his diversity claim
is based.” Housand, 594 F.2d at 925. Although he lists
28 U.S.C. § 1332 as a basis for federal jurisdiction,
Fermin alleges only that he is confined in Pennsylvania. In the absence of additional facts demonstrating
an intent to remain in Pennsylvania indefinitely, that
fact alone does not confer jurisdiction on this court.
[3] Even if the complaint were not facially inadequate, Fermin's claims would still have to be dis-

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Not Reported in F.Supp.2d, 2003 WL 21787351 (S.D.N.Y.)
(Cite as: 2003 WL 21787351 (S.D.N.Y.))
missed under Fed.R.Civ.P. 12(b)(1), because Fermin
has not shown by a preponderance of the evidence that
he intends to remain in Pennsylvania. “Once a plaintiff's allegations of diversity are challenged by a defendant, plaintiff must prove by a preponderance of
the evidence that diversity in fact exists.” Bevilaqua v.
Bernstein, 642 F.Supp. 1072, 1073 (S.D.N.Y.1986)
(Weinfeld, J.). Here, plaintiff has not met that burden.
In his Reply, Fermin declares that he lives in Pennsylvania; that he receives his mail in Pennsylvania;
that he makes his telephone calls from Pennsylvania;
that Pennsylvania is where he sees his family; that he
receives medical treatment in Pennsylvania; and that
he received an educational equivalency certificate
from the State of Pennsylvania. (See Reply at 5)
However, these facts establish only that, at the time
Fermin filed his complaint, he was incarcerated in
Pennsylvania. Fermin has not established that Pennsylvania is his domicile rather than merely his residence.
IV.
[4] The complaint alleges the presence of a federal question as an alternative basis for subject matter
jurisdiction over this case. (See Compl. ¶ 1) Section
1331 provides that “[t]he district courts shall have
original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331 (2000). Fermin offers two
separate theories to support federal question jurisdiction. First, in his complaint, Fermin asserts that this
court has jurisdiction over his claims as a result of his
“civil rights claim” against Moriarty. (Id.) Second, in
his Reply, Fermin claims that although the breach of
contract and malpractice claims arise out of state law,
those claims will be evaluated under federal law, because Moriarty represented Fermin in a federal criminal case. Neither theory supports federal question
jurisdiction here.
A. Sixth Amendment Claim
First, Fermin's Sixth Amendment claim does not
confer federal question jurisdiction over this action,

because the claim cannot rest upon 42 U.S.C. § 1983.
Section 1983 permits any person to recover damages
or other relief from another who has deprived him of
his constitutional rights “under color of any statute,
ordinance, regulation, custom, or usage of any State or
Territory.” 42 U.S.C. § 1983 (2000). Moriarty, a private attorney, cannot be regarded as a state actor for
the purposes of § 1983. See Housand, 594 F.2d at
924–925 (concluding that even “public defenders or
court-appointed defense attorneys do not act ‘under
color of law” ’).FN3 Because Fermin has no cognizable
Sixth Amendment claim against his private attorney,
that claim cannot serve as the basis for federal jurisdiction over this case. See id. at 925 (affirming dismissal of complaint where plaintiff had no cognizable
§ 1983 claim against his attorney); Seedman v. Stanley
Roy Root & Assocs., No. 99 Civ. 4234, 2000 WL
290345, at *2 (S.D.N.Y. Mar.20, 2000) (federal
question jurisdiction lacking over action against private attorney); D'Ottavio v. Depetris, No. 91 Civ.
6133, 1991 WL 206278, at *1 (S.D.N.Y. Sept.26,
1991) (same).
FN3. Moriarty also cannot be considered a
state actor under Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1971), which
permits suits against federal officers. See
Housand, 594 F.2d at 924 n. 1 (noting that “a
Bivens-type suit requires federal action in the
same manner as § 1983 requires state action”).
B. Federal Law
*4 [5] Furthermore, that Moriarty represented
Fermin in a federal criminal case does not transform
his breach of contract and malpractice claims against
Moriarty into claims that satisfy the requirements of §
1331. “Federal question jurisdiction exists where a
well-pleaded complaint ‘establishes either that federal
law creates the cause of action or that the plaintiff's
right to relief necessarily depends on resolution of a
substantial question of federal law.” ’ Greenberg v.

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Not Reported in F.Supp.2d, 2003 WL 21787351 (S.D.N.Y.)
(Cite as: 2003 WL 21787351 (S.D.N.Y.))
Bear, Stearns & Co., 220 F.3d 22, 25 (2d Cir.2000)
(quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27–28, 103 S.Ct. 2841, 77
L.Ed.2d 420 (1983)). Thus, “the mere presence of a
federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” See
Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478
U.S. 804, 813, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986).
Rather, a district court must “look to the nature of the
federal question raised in the claim to see if it is sufficiently substantial to warrant federal jurisdiction.”
Greenblatt v. Delta Plumbing & Heating Corp., 68
F.3d 561, 570 (2d Cir.1995).
The Supreme Court's decision in Merrell Dow
indicates that a federal question is substantial enough
to warrant federal jurisdiction only when a federal law
that creates a cause of action is an essential component
of the plaintiff's state law claim. See Erwin Chemerinsky, Federal Jurisdiction 281 (3d ed.1999) (describing Merrell Dow' s holding). In Merrell Dow, the
plaintiffs asserted a negligence claim which included,
as an element, a rebuttable presumption of negligence
created by the defendants' alleged misbranding of
drugs in violation of the Federal Food, Drug, and
Cosmetic Act (“FDCA”). See Merrell Dow, 478 U.S.
at 805–06. However, because neither the FDCA nor
any other federal law provided a cause of action for
misbranding, see id. at 810–11, the Court concluded
that federal question jurisdiction over the plaintiff's
negligence claim was lacking. See Merrell Dow, 478
U.S. at 814 (deferring to Congress's own determination that “the presence of a claimed violation of [the
FDCA] as an element of a state cause of action is
insufficiently ‘substantial’ to confer federal-question
jurisdiction”).
Here, the complaint does not allege that a federal
law that creates a cause of action is an essential
component of either the malpractice claim or the
breach of contract claim. Indeed, the complaint does
not raise any federal issue at all. The most that can be
said about the complaint is that it alleges wrongs that

occurred during an ongoing federal case.
V.
[6] Fermin argues in his Memorandum in Opposition that even if diversity jurisdiction is lacking,FN4
the court should, in its discretion, exercise ancillary
jurisdiction over this case. As a threshold matter, it is
unclear if, or to what extent, criminal ancillary jurisdiction survived the enactment of 28 U.S.C. § 1367(a).
That statute states that “in any civil action over which
the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over
all other claims that are so related to claims in the
action within such original jurisdiction that they form
part of the same case or controversy.” 28 U.S.C. §
1367(a) (2000); see also 16 James Wm. Moore et al.,
Moore's Federal Practice ¶ 106.03[1] (3d ed. 1999)
(“Supplemental jurisdiction is a statutory term that is
generally viewed by the courts and commentators as
encompassing both what courts previously referred to
as ‘pendent’ jurisdiction and ‘ancillary’ jurisdiction.”). By its own terms, the statute applies to civil
cases only. Here, the underlying action was a criminal
case; therefore, the statute does not apply.
FN4. Notably, Fermin no longer claims that
federal question jurisdiction exists.
*5 Notwithstanding the language of 28 U.S.C. §
1367(a), one court in this district has concluded that
ancillary jurisdiction still may be exercised over disputes related to criminal cases. In United States v.
Weissman, No. S2 94 CR. 760, 1997 WL 334966
(S.D.N.Y. Jun.16, 1997), a jury convicted Jerry
Weissman on two counts of perjury and one count of
obstruction of justice. After the verdict but before
post-trial motions and sentencing, Weissman's former
employer, Empire Blue Cross/Blue Shield (“Empire”), informed Weissman that it would not advance
funds to cover either future legal costs or recently
incurred costs. Id. at *1, 7. Weissman moved to
compel Empire to continue to advance the funds
necessary for his defense and to pay the legal bills he

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Not Reported in F.Supp.2d, 2003 WL 21787351 (S.D.N.Y.)
(Cite as: 2003 WL 21787351 (S.D.N.Y.))
had already submitted. The Court exercised jurisdiction over the application, and rejected Empire's argument that Congress “did away with ancillary jurisdiction in criminal proceedings.” Id. at *4. Judge
Haight noted that “ancillary jurisdiction in criminal
proceedings never derived from any particular statutory authority,” id., and then “look[ed] to analogous
situations in the civil context to determine if the exercise of ancillary jurisdiction [was] proper,” id.
Based on civil cases holding that district courts may
exercise ancillary jurisdiction over fee disputes between a party and his counsel, e.g., Grimes v. Chrysler
Motors Corp., 565 F.2d 841 (2d Cir.1977), the Court
concluded that it had jurisdiction over Weissman's
claim.

This is what the [common nucleus of operative
facts] test seeks to attain. It is not just a matter of
fostering judicial economy, minimizing litigants'
costs, or protecting court officers. It is, on the contrary, a matter of ensuring that federal judicial
power is exercised only in a case or controversy
within a federal court's limited subject matter jurisdiction. The existence of a common nucleus of operative facts, court control over property, or the
presence of parties to a fee dispute are precisely the
type of factors that assures that the vague concept of
ancillary jurisdiction does not overwhelm the
boundaries of federal judicial authority.

No other courts in this district have addressed the
issue squarely, but a court in another district has criticized and departed from Weissman. In United States
v. Polishan, 19 F.Supp.2d 327 (M.D.Pa.1998), a
criminal defendant moved to compel his former employer and its insurer to pay defense costs. The Court
held that it did not have ancillary jurisdiction over the
action. According to the Court, unlike a fee dispute
between a party and his lawyer, where the parties to
the dispute have already submitted themselves to the
jurisdiction of the court, and unlike a case where
contested property is in the court's control, the defendant's motion did not arise out of the same nucleus
of operative fact as the criminal action. See id. at 332
(“Although Polishan's conduct while Leslie Fay's
chief financial officer is related to these claims in a
peripheral manner, it cannot be reasonably maintained
that his motion arises out of the same nucleus of operative facts underlying the prosecution.”).

[7] Thus, although the Polishan Court repudiated
Weissman insofar as it refused to adjudicate a criminal
defendant's suit against a third-party insurer, the Court
agreed with Weissman that a federal court may exercise criminal ancillary jurisdiction over a fee dispute.
Without delineating the precise boundary of criminal
ancillary jurisdiction, I too conclude that ancillary
jurisdiction may be exercised over a fee dispute arising out of a criminal case. As a threshold matter, I
refuse to read 28 U.S.C. § 1367 to abolish criminal
ancillary jurisdiction. First, as Judge Haight noted, the
Second Circuit has acknowledged the existence of
criminal ancillary jurisdiction since Congress passed
the Judicial Improvement Act of 1990, now codified
in 28 U.S.C. § 1367. See Rufu v. United States, 20 F.3d
63, 65 (2d Cir.1994); Soviero v. United States, 967
F.2d 791, 792 (2d Cir.1992); Mora v. United States,
955 F.2d 156, 158 (2d Cir.1992).FN5 Second, as Judge
Haight noted also, Congress passed the current version
of 28 U.S.C. § 1367 in order to overrule Finley v.
United States, 490 U.S. 545, 109 S.Ct. 2003, 104
L.Ed.2d 593 (1989), which limited the exercise of
pendent-party jurisdiction. See Weissman, 1997 WL
334966, at *4 (collecting cases and examining legislative history). There is no reason to conclude that, in
restoring the pre-Finley status quo, Congress intended
to abrogate a separate, longstanding basis for federal

According to the Polishan Court, “the major flaw
in Weissman is the court's failure to address the constitutional limitations of ancillary jurisdiction.” Id. at
333. The Court explained:
The threshold inquiry ... must concern consistency
with constitutional limits of federal judicial power.

*6 Id. (emphasis added).

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sidiary dispute between Fermin and his former attorney.

jurisdiction.
FN5. The criminal cases in which the Second
Circuit has affirmed the exercise of ancillary
jurisdiction involved the return of property
seized from criminal defendants; thus, the
subsidiary controversies in those cases “ha[d]
direct relation to property or assets actually
or constructively drawn into the court's possession or control by the principal suit.”
Fulton Nat'l Bank of Atlanta v. Hozier, 267
U.S. 276, 280, 45 S.Ct. 261, 69 L.Ed. 609
(1925). However, the Supreme Court has
indicated that ancillary jurisdiction extends
beyond cases in which the court controls the
funds at issue. See Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375, 379, 114 S.Ct.
1673, 128 L.Ed.2d 391 (1994) (characterizing the language in Fulton Nat'l Bank as an
“excessively limited description of the doctrine” of ancillary jurisdiction).
Once it is established that a district court may
exercise ancillary jurisdiction in criminal cases, the
question presented is simply whether there is a sufficient transactional relationship between a primary and
a subsidiary controversy to support the exercise of
supplementary jurisdiction over the latter. With respect to fee disputes between a party and his attorney,
the Second Circuit has already answered that question
in the affirmative. See Cluett, Peabody & Co. v. CPC
Acquisition Co., 863 F.2d 251, 256 (2d Cir.1988) (“ ‘It
is well settled that [a] federal court may, in its discretion, exercise ancillary jurisdiction to hear fee disputes
... between litigants and their attorneys when the dispute relates to the main action ....“ ‘ (quoting Petition
of Rosenman Colin Freund Lewis & Cohen, 600
F.Supp. 527, 531 (S.D.N.Y.1984))). Like the plaintiff
in Cluett, plaintiff in this case claims that his former
attorney defrauded him and that he has been charged
excessively for the services rendered by the attorney.FN6 Thus, as in Cluett, it is within this court's discretion to exercise ancillary jurisdiction over the sub-

FN6. Notably, in his response to Moriarty's
motion to dismiss, Fermin concedes that
“this is strictly a breach of contract and misrepresentation case.” (Mem. in Opp. at 8)
VI.
[8] Although I could exercise ancillary jurisdiction over this action, I decline to do so. In Cluett, the
Second Circuit identified four factors to be considered
in deciding whether to exercise ancillary jurisdiction
over a fee dispute: (1) the trial court's familiarity with
the subject matter of the suit and the work performed
by the law firm in connection with the lawsuit; (2) the
Court's responsibility to protect its own officers in
such matters as fee disputes; (3) the convenience of
litigating in federal court as opposed to state court; and
(4) considerations of judicial economy. Id. Additionally, courts have emphasized that, before exercising
ancillary jurisdiction, “[m]ost important, [a court]
must determine whether the exercise of jurisdiction is
necessary to provide a fair resolution of the underlying
matter, and to allow the court to administer its proceedings.” Weissman, 1997 WL 334966, at *6; see
also Kalyawongsa v. Moffett, 105 F.3d 283, 287 (6th
Cir.1997) (noting that resolution of fee disputes is
“often required to provide a full and fair resolution of
the litigation”).
*7 Here, the subsidiary dispute between Fermin
and Moriarty does not bear on the underlying criminal
case against Fermin in the same way that the fee dispute in Weissman bore on the case against Weissman.
In Weissman, the Court concluded that the fee dispute
between Weissman and his attorneys was “intimately
intertwined with the comportment of the [criminal]
case” because the dispute threatened to affect the
timing of post-trial motions and sentencing. Weissman, 1997 WL 334966, at *7. Here, on the other hand,
although Fermin's criminal case remains before this
court for the purpose of resentencing, Fermin's claims

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(Cite as: 2003 WL 21787351 (S.D.N.Y.))
against Moriarty will in no way affect the resentencing
proceeding.
Further, this court has no special familiarity with
the subject matter of Fermin's suit. I did not preside
over Fermin's trial, nor did I conduct the sentencing
hearing at which Moriarty represented Fermin. See
Riva Techs. v. Zack Elecs., Inc., 2002 WL 1559584, at
*7 (N.D. Ill., Jul 15, 2002) (declining to exercise ancillary jurisdiction when “what few court proceedings
took place in the case were conducted by the district
judge then presiding in the case, and occurred long
before the parties first appeared before this Court”).
Finally, litigating the case in federal court would
be inconvenient, inter alia, because the case involves a
complex issue of state law. A review of the complaint
for factual allegations that would support a claim for
fraudulent misrepresentation shows that Fermin has
alleged only that Moriarty entered into a contract with
the undisclosed intent to breach that contract. (See
Compl. ¶ 30 (alleging that Moriarty “never intended to
execute his appellate responsibility”); see also Mem.
in Opp. at 3 (defending plea for punitive damages on
the ground that “Moriarty entered into the contract
knowing he would not undertake an appeal”))
Under New York law as interpreted by the Second Circuit, Fermin's allegation is insufficient to
support a fraud claim. The Circuit has repeatedly held
that, as a general rule, the allegation that a party entered into a contract intending to breach that contract
is insufficient to support a claim for fraud under New
York law. See Manning v. Utils. Mut. Ins. Co., 254
F.3d 387, 401 (2d Cir.2001); Bridgestone/Firestone,
Inc., v. Recovery Credit Servs., Inc., 98 F.3d 13, 19–20
(2d Cir.1996). Nevertheless, there is substantial confusion in the New York case law regarding the rule
adhered to in Manning and Bridgestone/Firestone.
One district court explained: “The rule derives from a
very long and very puzzling line of New York cases.
On at least four occasions, New York's Court of Appeals has expressly held that ‘a contractual promise

made with the undisclosed intention not to perform it
constitutes fraud.’ At the same time, however, there
are numerous Appellate Division cases that state precisely the opposite rule.” Cougar Audio, Inc. v. Reich,
No. 99 Civ. 4498, 2000 WL 420546, at *6 n. 4
(S.D.N.Y. Apr.18, 2000) (citation omitted); see also
Marriott Intern., Inc. v. Downtown Athletic Club of
New York City, Inc., No. 02 Civ. 3906, 2003 WL
21314056, at *6–7 (S.D.N.Y. Jun.09, 2003) (discussing the New York case law in detail). Were I
compelled to do so, I would, of course, adhere to the
Second Circuit's interpretation of New York law;
however, the better approach in this case is to allow a
state court to adjudicate Fermin's claims.FN7
FN7. Although this court acknowledges its
responsibility to protect its officers in fee
disputes, Moriarty does not seek the protection of the court. In any event, the other factors control.
VII.
*8 Because the complaint is dismissed for lack of
subject-matter jurisdiction, I need not address Moriarty's motion for summary judgment. For future reference, the parties are reminded that Local Rule 56.1
requires the party moving for summary judgment to
file a statement setting forth the material facts that are
allegedly undisputed, S.D.N.Y. & E.D.N.Y. R.
56.1(a), and the non-moving party to file a statement
setting forth the material facts that it contends are in
dispute, id. 56.1(b). Both parties to this case failed to
comply with Local Rule 56.1.
Consistent with Housand and other cases in
which prisoners have failed adequately to allege diversity jurisdiction, I dismiss Fermin's complaint with
leave to amend. See, e.g., Housand, 594 F.2d at 926
(remanding the case “with instructions to allow
amendment of the complaint within a reasonable time
to state a claim, if any exists, under diversity jurisdiction”). Plaintiff may file an amended complaint alleging diversity of citizenship within forty-five (45)

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days of the date of this order. In considering whether
to file an amended complaint, and what to include in
that complaint should he file one, plaintiff should bear
in mind that a prisoner must offer more than “unsubstantiated declarations” to rebut the presumption that
he retains his pre-incarceration domicile. Stifel, 477
F.2d at 1126.
SO ORDERED:
S.D.N.Y.,2003.
Fermin v. Moriarty
Not Reported in F.Supp.2d, 2003 WL 21787351
(S.D.N.Y.)
END OF DOCUMENT

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