Bryant v. Kinder et al

Filing 5

MEMORANDUM OPINION AND ORDER: If the plaintiff fails to file an affirmation as directed, or if the affirmation fails to demonstrate a sufficient basis for invoking the Court's subject matter jurisdiction, this action will be dismissed for lack o f subject matter jurisdiction without prejudice to refiling in a proper forum. The Court certifies under 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 purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge John G. Koeltl on 10/03/2014) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ANNE BRYANT,
Plaintiff,

14 Cv. 6637(JGK)

- against -

MEMORANDUM OPINION AND
ORDER

CLIFFORD A. “FORD” KINDER ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, appearing pro se, brings this action
invoking the Court’s federal question jurisdiction, alleging
that the defendants committed fraud. For the reasons set forth
below, the Court directs the plaintiff to show cause, by filing
an affirmation within thirty days of the date of this order, why
this matter should not be dismissed for lack of subject matter
jurisdiction.
BACKGROUND
The plaintiff, Anne Bryant, is a composer and songwriter
residing in Sarasota, Florida. (Compl. at 7.) The defendant,
Clifford A “Ford” Kinder (“Kinder”), is a doctor residing in
Miami, Florida. (Id. at 6.) The plaintiff’s claims arise out of
a dispute between herself and Kinder regarding the dissolution
of their business in 1989. In October 1983, the plaintiff and
Kinder founded a music production business—“Kinder, Bryant &

1

Aquino, Ltd.”—with a third partner, Sarah Aquino. (Id. at 9.)
Their business produced music scores and jingles for radio,
television, and advertising from 1983 until 1989; they generated
revenue from royalties earned on their compositions. (Id. at 7–
8.) The plaintiff alleges that she believed that the business’s
name was changed to “Kinder & Bryant Ltd.” in 1985 after Aquino
left the business. (Id. at 9.)
The plaintiff alleges that in 1989 Kinder purchased her
interest “Kinder & Bryant Ltd.” after she and Kinder reached a
separation agreement, in which the plaintiff was to receive
$120,000 and retain “a perpetual share of various revenue
streams from works created during the years in business with
Defendant Kinder, which were due and owing from ‘Kinder & Bryant
Ltd.’” (Id. at 15-16.) This separation agreement has been the
source of extensive litigation in New York State Supreme Court,
Rockland County. The plaintiff filed a claim in 1991, alleging
that Kinder breached the terms of their 1989 separation
agreement. (Id. at 2.) She filed a second claim in 2000,
alleging that Kinder violated the terms of their 1994 settlement
agreement. (Id.)
In this case, the plaintiff alleges that on August 20,
2012, she learned from an Internal Revenue Service (“IRS”) agent
that there has never been a New York corporation formed under
the name “Kinder & Bryant Ltd.” and that her former business had
2

actually continued to operate under its original name “Kinder,
Bryant & Aquino, Ltd.” (Id. at 10.) The plaintiff alleges that
Kinder intentionally withheld this information about the
corporation’s legal name to deprive her of her share of the
royalties associated with “Kinder, Bryant & Aquino, Ltd.” (Id.
at 16–17.) She further alleges that Kinder fraudulently
misrepresented the facts regarding the corporation’s name so
that he could “illegally merge” “Kinder, Bryant & Aquino, Ltd.”
to form his own business “Kinder & Company Inc.” in 1990 (Id. at
17.) The plaintiff alleges that because Kinder intentionally
misrepresented the identity of the corporation and has since
profited from that deception, the 1989 separation agreement and
subsequent stipulations of settlement in state court “were
induced by fraud and should be void under [New York] law.” (Id.
at 1.)
The plaintiff asserts common law claims of fraud and seeks
(1) to void the general releases and settlement agreements
between herself and Kinder, (2) an equitable accounting of
royalties earned by the company between 1985 to present, and (3)
the creation of a constructive trust for the royalties earned by
Kinder during the pendency of the litigation. (Id. at 22–23.)
DISCUSSION
The subject matter jurisdiction of the federal district
courts is limited and is set forth generally in 28 U.S.C. § 1331
3

and 28 U.S.C. § 1332. Under these statutes, federal jurisdiction
is available only when a “federal question” is presented (§
1331) or when plaintiff and defendant are citizens of different
states and the amount in controversy exceeds the sum or value of
$75,000 (§ 1332). “[I]t is common ground that in our federal
system of limited jurisdiction any party or the court sua
sponte, at any stage of the proceedings, may raise the question
of whether the court has subject matter jurisdiction.” United
Food & Commercial Workers Union v. CenterMark Prop. Meriden
Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (alteration in
original) (internal quotation marks omitted). The Court, on its
own initiative, may question the assertion of subject matter
jurisdiction. Fed. R. Civ. P. 12(h)(3) (“If the court determines
at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”); see Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be
policed by the courts on their own initiative . . . .”).
1. Federal Question
The plaintiff’s allegations do not suggest a basis for
federal question jurisdiction under § 1331. To invoke federal
question jurisdiction, the plaintiff’s claims must arise “under
the Constitution, laws, or treaties of the United States.” §
1331. “Federal question jurisdiction may be properly invoked
only if the plaintiff’s complaint necessarily draws into
4

question the interpretation or application of federal law.” New
York v. White, 528 F.2d 336, 338 (2d Cir. 1975).
The plaintiff asserts that this Court has federal question
jurisdiction over her claims. In the section of her complaint
titled “The Federal Question,” the plaintiff cites to 28 U.S.C.
§ 1391(a)(2), which is the statute that governs the venue for
actions brought in federal district court. (Compl. At 4). It is
not clear whether the plaintiff cites to § 1391 as a basis for
federal question jurisdiction or whether she cites to § 1391
merely to assert that this district is the proper venue to
adjudicate these claims. “The venue provisions [of § 1391] do
not confer or deny jurisdiction; they assume that the court in
question has subject matter jurisdiction, and they simply limit
the locations in which the action may be brought.” United States
ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 110
F.3d 861, 864 (2d Cir. 1997). Because § 1391 is a venue statute
and does not in and of itself confer subject matter
jurisdiction, the plaintiff must rely on an independent federal
cause of action to establish federal question jurisdiction.
However, she does not, however, cite to any constitutional
provision or federal law that applies to her claims. Mindful of
the Court’s duty “to construe pro se pleadings liberally,”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,”
5

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006) (internal quotation marks and citations omitted), the
Court has reviewed the plaintiff’s allegations and cannot
discern any federal basis for her claim. Because the plaintiff’s
claims do not appear to arise under a federal statute or the
United States Constitution, this Court lacks federal question
jurisdiction over her claims.
2. Diversity of Citizenship
Because federal question jurisdiction is lacking, the Court
will address whether diversity jurisdiction exists under § 1332,
even though the plaintiff specifically states that she is not
relying on the diversity jurisdiction statue. (Compl. at 4.)
To invoke jurisdiction under § 1332, a plaintiff must first
allege that the plaintiff and defendants are citizens of
different states. “An individual’s citizenship, within the
meaning of the diversity statue, is determined by his domicile.”
Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000); see also
Martinez v. Bynum, 461 U.S. 321, 331 (1983) (internal quotation
marks and citation omitted) (“In general, the domicile of an
individual is his true, fixed and permanent home and place of
habitation”). A corporation is a citizen “of any State by which
it has been incorporated and of the State where it has its
principal place of business.” § 1332(c)(1); see also Hertz Corp.
v. Friend, 559 U.S. 77, 92–95 (2010) (holding that a
6

corporation’s principal place of business is its “nerve center,”
usually its main headquarters). Diversity must be complete; in
other words, “no plaintiff and no defendant [may be] citizens of
the same State.” Wisc. Dep’t of Corr. v. Schacht, 524 U.S. 381,
388 (1998). “[D]iversity of citizenship is assessed at the time
the action is filed.” Freeport-McMoRan, Inc. v. K N Energy,
Inc., 498 U.S. 426, 428 (1991) (per curiam). In addition, a
plaintiff must allege to a “reasonable probability” that the
claim is in excess of the sum or value of $75,000, the statutory
jurisdictional amount. Colavito v. N.Y. Organ Donor Network,
Inc., 438 F.3d 214, 221 (2d Cir. 2006).
The plaintiff’s claims also fail with respect to the
Court’s diversity jurisdiction. Although the plaintiff does not
specify the citizenship of the parties, she indicates that both
she and defendant Kinder are residents of Florida. (Compl. at 67.) Accordingly, it does not appear that this Court has
diversity jurisdiction over her claims because she appears to be
a citizen of the same state as one of the defendants, thus
destroying complete diversity. 1

1

The plaintiff alleges that she “spends summers in Stony
Point, New York.” (Compl. at 8.) This is insufficient to
establish that she is a citizen of New York for the purposes of
diversity jurisdiction. Because the “domicile of an individual
is his true, fixed and permanent home and place of habitation,”
Martinez, 461 U.S. at 331, a temporary absence from one’s
domicile for vacation is insufficient to change an individual’s
domicile for purposes of establishing diversity jurisdiction.
7

In light of the plaintiff’s pro se status, however, the
Court will grant her the opportunity to address this deficiency.
Accordingly, the Court directs the plaintiff to show cause, by
filing an affirmation within thirty days of the date of this
order, why this matter should not be dismissed for lack of
subject matter jurisdiction. In the affirmation, the plaintiff
is directed to set forth any basis for concluding that this
action arises under either the Court’s federal question
jurisdiction or diversity of citizenship jurisdiction.
CONCLUSION
If the plaintiff fails to file an affirmation as directed,
or if the affirmation fails to demonstrate a sufficient basis
for invoking the Court’s subject matter jurisdiction, this
action will be dismissed for lack of subject matter jurisdiction
without prejudice to refiling in a proper forum.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and

See, e.g., Henderson v. FLOORgraphics, Inc., 153 F. Supp. 2d
133, 135–36 (D. Conn. 2001) (holding that plaintiff was a
citizen of Connecticut, where he owned a home, voted, and paid
federal and state taxes, even though he spent his summers at his
vacation property in New Jersey).
8

therefore in forma pauperis status is denied for the purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962).

SO ORDERED.
Dated:

New York, New York
October 3, 2014

_____________/s/_______________
John G. Koeltl
United States District Judge

9