Kurzon v. Democratic National Committee et al
OPINION AND ORDER: re: 53 FIRST MOTION to Dismiss Plaintiff's Second Amended Complaint filed by Democratic National Committee. For the foregoing reasons, the motion to dismiss is GRANTED. The Clerk of Court is directed to close the motion at Docket Number 53 and to close the case. SO ORDERED. (Signed by Judge J. Paul Oetken on 6/02/2017) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JEFFREY MEAD KURZON,
DEMOCRATIC NATIONAL COMMITTEE,
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
Plaintiff Jeffrey Mead Kurzon, an attorney now proceeding pro se, initiated this action
against the Democratic National Committee (“DNC”) and the New York State Democratic
Committee (“NYSDC”) on June 3, 2016. (Dkt. No. 4.) Kurzon initially sought a preliminary
injunction to enjoin Defendants from applying the superdelegate voting rules at the Democratic
National Convention; the Court denied that motion on July 18, 2016. (Dkt. No. 32.) Since the
denial of the preliminary injunction, Kurzon has twice amended his complaint and terminated his
counsel. He filed the operative Second Amended Complaint on December 16, 2016, naming
only the DNC as a defendant and alleging a variety of state-law claims and a single federal
common law “Democracy Tort.” (Dkt. No. 50 (“SAC”).) 1 The DNC moves to dismiss. (Dkt.
No. 53.) For the reasons that follow, the DNC’s motion to dismiss is granted.
The Court presumes familiarity with the background of this action, as set out in its
Opinion and Order on Kurzon’s motion for a preliminary injunction. Kurzon v. Democratic
Though the Second Amended Complaint at times refers to the NYSDC as a
Defendant (SAC ¶¶ 12-13), Kurzon earlier filed a letter consenting to the dismissal of the
NYSDC from this action (Dkt. No. 44).
Nat’l Comm., 197 F. Supp. 3d 638 (S.D.N.Y. 2016). The following facts are taken from the
Second Amended Complaint and are presumed true for the purposes of this motion.
The SAC relies on much of the same factual underpinning as the initial complaint.
Kurzon “seek[s] justice” for himself and others who were “wronged by the [DNC]’s illegal
actions surrounding the 2016 Democratic Presidential Primary.” (SAC ¶ 1.) The SAC quotes at
length from the DNC Charter and Bylaws regarding the DNC’s obligation of impartiality in the
selection of a Presidential candidate. (Id. ¶¶ 16-18.) He then cites a host of news articles and
internal DNC documents describing the DNC’s alleged favoritism of Hillary Clinton in the 2016
Democratic Presidential Primary. (Id. ¶¶ 19-49.)
Where the SAC differs most notably from the initial complaint is in the causes of action it
alleges. The SAC alleges eight different state-law claims—fraud, negligent misrepresentation,
breach of fiduciary duties, negligence, prima facie tort, breach of contract, deceptive business
practices under New York law, and unlawful trade practices under D.C. law—and a “Violation
of Federal Common Law: Democracy Tort.” (Id. ¶¶ 55-119.) Kurzon seeks declaratory and
injunctive relief, as well as punitive damages in the amount $10,000,000. (Id. ¶ 120.) In
contrast, the initial complaint raised claims for violation of Kurzon’s rights under the First and
Fourteenth Amendments to the United States Constitution and for breach of contract. (Dkt. No.
4 ¶¶ 35-42.)
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “A case is properly
dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)). “When
resolving a Rule 12(b)(1) motion, a district court may refer to evidence outside the pleadings,
and the plaintiff bears the burden to prove subject-matter jurisdiction by a preponderance of the
evidence.” Morrow v. Ann Inc., No. 16 Civ. 3340, 2017 WL 363001, at *2 (S.D.N.Y. Jan. 24,
2017) (citing Makarova, 201 F.3d at 113).
The DNC argues that Kurzon’s SAC should be dismissed under Rule 12(b)(1) for want of
subject matter jurisdiction because he has failed to allege either diversity of citizenship or
federal-question jurisdiction and because he lacks standing. 2 (Dkt. No. 54 at 5-15.) The DNC
also argues that the SAC should be dismissed under Rule 12(b)(6) for failure to state a claim.
(Id. at 15-24.) Because the Court lacks subject matter jurisdiction, the SAC must be dismissed;
the Court reaches neither standing nor whether the SAC states a claim under Rule 12(b)(6). 3
Diversity of Citizenship
To properly allege diversity jurisdiction under 28 U.S.C. § 1332, Kurzon must present a
claim between parties who are citizens of different states where the amount in controversy is
greater than $75,000. 28 U.S.C. § 1332. The party seeking to invoke jurisdiction bears the
burden of proving complete diversity and the amount in controversy by a preponderance of the
evidence. See Makarova, 201 F.3d at 113.
The SAC also refers to jurisdiction under the Declaratory Judgment Act (“DJA”),
28 U.S.C. § 2201. (SAC ¶ 2.) However, the DJA did not “expand the federal courts’ subjectmatter jurisdiction”; that is, it cannot serve as an independent font of jurisdiction where the Court
would otherwise lack jurisdiction over an analogous suit for coercive relief. Garanti Finansal
Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 66 (2d Cir. 2012) (citing Skelly Oil
v. Phillips Petroleum, 339 U.S. 667, 671 (1950)).
The Court does note, however, that Kurzon fails to address the DNC’s arguments
regarding his failure to state a claim on his state-law claims. (See Dkt. No. 55.) He addresses
only his federal common-law claim. (Id. at 6-7.)
Now that the NYSDC is no longer a party to this action, the parties are completely
diverse, as Kurzon is a New York citizen and the DNC is a citizen of Washington, D.C. (SAC
¶¶ 4, 8.) The DNC does not dispute this prong of the diversity analysis. (Dkt. No. 54 at 14.)
The DNC argues, however, that Kurzon has not satisfied the amount in controversy
requirement. (Id. at 14-15.) In the SAC, Kurzon does not seek compensatory damages; rather,
he seeks injunctive and declaratory relief and an award of $10,000,000 in punitive damages.
(SAC ¶ 120.)
Punitive damages, where permitted, ordinarily may count toward the amount in
controversy requirement. See Courchesne Larose, Ltee. v. Ven-Co Produce, Inc., No. 10 Civ.
3123, 2010 WL 4877828, at *2 (S.D.N.Y. Nov. 30, 2010) (citing A.F.A. Tours, Inc. v.
Whitchurch, 937 F.2d 82, 87 (2d Cir. 1991)). However, a court is “not compelled to accept a
claim of punitive damages . . . made for the purpose of conferring federal jurisdiction.” Id.
(quoting Zahn v. Int’l Paper Co., 469 F.2d 1033, 1033 n.1 (2d Cir. 1972), aff’d on other grounds,
414 U.S. 291 (1973)). In fact, a claim for punitive damages is to be given “closer scrutiny” than
a claim for actual damages in determining whether it may go toward satisfying the amount in
controversy requirement. Id. (quoting Zahn, 469 F.2d at 1033 n.1).
Here, Kurzon’s prayer for punitive damages does not withstand this closer scrutiny.
Kurzon seeks $10,000,000 in punitive damages “to deter and to make an example of
Defendants.” (SAC ¶ 120.) But Kurzon’s claims stem from a unique set of circumstances—a
major political party’s management of its candidate selection process and internal affairs during
the 2016 Presidential Primary—and an alleged injury that is generalized rather than personal.
These factors, taken together, render it unlikely that a significant punitive damages award could
be justified on the grounds of “mak[ing] an example” of the DNC to deter similar future conduct
and prevent similar injury. Furthermore, the absence of any claimed compensatory damages—
and, in turn, the absence of a calculable ratio of punitive to compensatory damages—makes the
award of millions of dollars in punitive damages all the more implausible. See State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003). In closely scrutinizing Kurzon’s punitive
damages request in the context of the SAC as a whole, the Court concludes that in seeking a
significant punitive damages award—absent any compensable injury—he has not satisfied the
amount in controversy requirement by a preponderance of the evidence.
Nor does Kurzon’s prayer for injunctive relief save his cause. Though Kurzon notes that
the likely costs of complying with an injunction will exceed the $75,000 threshold (Dkt. No. 55
at 5), this fact is irrelevant. Courts in the Second Circuit are required to consider the amount in
controversy from the plaintiff’s perspective, Correspondent Servs. Corp. v. First Equities Corp.
of Fla., 442 F.3d 767, 769 (2d Cir. 2006), and accordingly, may not consider the potential costs
to a defendant of complying with an injunction, Cohen v. KIND L.L.C., 207 F. Supp. 3d 269, 271
(S.D.N.Y. 2016). 4
Kurzon has thus failed to adequately allege an amount in controversy sufficient for the
exercise of this Court’s diversity jurisdiction.
To invoke federal question jurisdiction under 28 U.S.C. § 1331, a plaintiff must plead “a
colorable claim ‘arising under’ the Constitution or laws of the United States.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 513 (2006). A claim arises under federal law “where a well-pleaded
complaint establishes either that federal law creates the cause of action or that the plaintiff’s right
This perspective is not uniformly held across the circuits. See, e.g., Cleveland
Hous. Renewal Project v. Deutsche Bank Trust Co., 621 F.3d 554, 560 (6th Cir. 2010)
(explaining that in the Sixth Circuit, the cost of complying with an injunction may count towards
the amount in controversy).
to relief necessarily depends on resolution of a substantial question of federal law.” Empire
HealthChoice Assur., Inc. v. McVeigh, 396 F.3d 136, 140 (2d Cir. 2005) (internal quotation
marks omitted) (quoting Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 25 (2d. Cir. 2000)),
aff’d, 547 U.S. 677 (2006).
“A claim invoking federal-question jurisdiction under 28 U.S.C. § 1331 . . . may be
dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is ‘immaterial and
made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’”
Arbaugh, 546 U.S. at 513 n.10 (quoting Bell v. Hood, 327 U.S. 678, 682-683 (1946)). “[A]
plaintiff cannot create federal jurisdiction under § 1331 simply by alleging a federal claim where
in reality none exists.” Empire HealthChoice, 396 F.3d at 140.
As a threshold matter, none of Kurzon’s state-law claims necessarily depends on the
resolution of substantial questions of federal law so as to serve as an independent hook for
federal question jurisdiction; they are garden-variety state-law tort and contract claims that do
not implicate federal law, and Kurzon does not argue otherwise. See Empire HealthChoice, 396
F.3d at 140.
Kurzon’s only possible federal claim, then, is the cause of action he titles “Violation of
Federal Common Law: Democracy Tort.” (SAC ¶¶ 113-19.) (It is well settled that—assuming
the claim is colorable—a claim under federal common law can support jurisdiction under Section
1331. See Nat’l Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 850
(1985).) However, as Kurzon acknowledges, no such cause of action exists. (Dkt. No. 55 at 7
n.3.) And “the ability of federal courts to fashion federal common law . . . is ‘severely limited.’”
Empire HealthChoice, 396 F.3d at 140 (quoting In re Gaston & Snow, 243 F.3d 599, 606 (2d
Cir. 2001)). Absent congressional authorization, federal courts may create federal common law
only where the operation of state law “significant[ly] conflicts” with “uniquely federal interests.”
Id. (alteration in original) (quoting Boyle v. United Techs. Corp., 487 U.S. 500, 507, 508 (1988)).
But Kurzon nowhere describes a conflict between state law and federal interests that might
justify the creation of federal common law in this area—to the contrary, he asserts numerous
state-law causes of action that might adequately redress the injuries he alleges. Accordingly,
there is no ground for the creation of a new federal common law tort here, rendering Kurzon’s
federal claim wholly insubstantial and thus insufficient to support federal question jurisdiction.
Section 1983 also does not provide a basis for federal question jurisdiction. Though
Kurzon mentions in the SAC that this action is brought under 42 U.S.C. § 1983, he fails to allege
any violation thereunder. (SAC ¶ 2.) See Feingold v. New York, 366 F.3d 138, 159 (2d Cir.
2004) (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” (quoting West v. Atkins, 487 U.S. 42, 48
The difference between Kurzon’s initial complaint and the SAC is instructive here. The
initial complaint expressly raised claims under the First and Fourteenth Amendments to the
United States Constitution. (Dkt. No. 4 ¶¶ 35-38, 42.) Accordingly, the bulk of the Court’s
Opinion and Order on the motion for preliminary injunction addressed Kurzon’s likelihood of
success on those claims. Kurzon, 197 F. Supp. 3d at 642-43. The SAC, however, asserts no
such claims. There is no allegation of an infringement of Kurzon’s constitutional rights, First
Amendment, Fourteenth Amendment, or otherwise. And, with the exception of the so-called
“Democracy Tort” addressed above, none of Kurzon’s claims even approaches alleging the
violation of a right secured under federal law. Accordingly, Kurzon has not pleaded a claim
arising under Section 1983.
Given Kurzon’s failure to plead a colorable federal claim, the Court lacks subject matter
jurisdiction over this action.
For the foregoing reasons, the motion to dismiss is GRANTED.
The Clerk of Court is directed to close the motion at Docket Number 53 and to close the
Dated: June 2, 2017
New York, New York
J. PAUL OETKEN
United States District Judge
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