Hatwood v. Ricotta et al

Filing 4

ORDER OF DISMISSAL: Accordingly, the Court dismisses this action for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). The Court dismisses this action for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). 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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Judgment shall issue. SO ORDERED. (Signed by Judge Laura Taylor Swain on 8/1/22) (rdz)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANNETTE HATWOOD,
Plaintiff,
-againstTHOMAS RICOTTA; RICOTTA + MARKS P.C.,

1:22-CV-5528 (LTS)
ORDER OF DISMISSAL

Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff Annette Hatwood, who is appearing pro se, filed this action invoking the court’s
federal question jurisdiction. She sues Thomas Ricotta, Esq., and what appears to be his law
firm, Ricotta & Marks P.C. Plaintiff seeks the following relief: “10 year[s] of what [her] job
pa[i]d [her] as a salary. . . . $52,000 + 10 years.” (ECF 2, at 6.) In response to her form
complaint’s question, “Which of your federal constitutional or federal statutory rights have been
violated?,” Plaintiff states “civil rights.” (Id. at 2.)
By order dated July 13, 2022, the Court granted Plaintiff’s request to proceed in forma
pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth in this order, the
Court dismisses this action for lack of subject matter jurisdiction.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or portion thereof, that is frivolous or
malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a
complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While
the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se

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pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise
the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original).
BACKGROUND
Plaintiff alleges the following: On August 6, 2020, Plaintiff retained Ricotta and the law
firm of Ricotta & Marks P.C. to pursue legal relief against Plaintiff’s employer arising from
disability discrimination that Plaintiff experienced. 1 Plaintiff corresponded with Ricotta and the
law firm via email, until her email account was hacked. Ricotta sent a letter to Plaintiff’s
employer informing the employer that he was Plaintiff’s attorney. After that, Plaintiff was unable
to get any assistance from Ricotta or the law firm. Plaintiff provided Ricotta and the law firm
with a new email address with which to communicate with her, but neither Ricotta, nor the law
firm, did so.
Ricotta’s and the law firm’s actions, or lack of action, have cost Plaintiff her job. She has
reported Ricotta and the law firm to a bar association. Ricotta “lied[,] manipulated [Plaintiff,]
and took [her] money.” (Id. at 6.)
DISCUSSION
The subject matter jurisdiction of the federal district courts is limited and is set forth
generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, a federal district court’s subject
matter jurisdiction is available only when a “federal question” is presented or, when a plaintiff
asserts claims under state law under the court’s diversity jurisdiction, when the plaintiff and the

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Plaintiff has attached to her complaint a copy of a verified complaint of disability
discrimination that she apparently filed with the New York State Division of Human Rights
against her employer. (ECF 2, at 7-8.) She has also attached a copy of a retainer agreement that
she signed with Ricotta & Marks P.C. (Id. at 9-10.)
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defendants are citizens of different states and the amount in controversy exceeds the sum or
value of $75,000. “‘[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, Local
919, AFL-CIO v. CenterMark Prop. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994)
(quoting Manway Constr. Co., Inc. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d
Cir. 1983)); see 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.”); 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.”).
To invoke federal question jurisdiction, a plaintiff’s claims must arise “under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim arises under
federal law if the 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.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Mere invocation of
federal question jurisdiction, without any facts demonstrating a claim under federal law, does not
create federal question jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d
1182, 1188-89 (2d Cir. 1996). While Plaintiff invokes the Court’s federal question jurisdiction,
and states “civil rights” in response to her form complaint’s question about which of her federal
constitutional or federal statutory rights have been violated (ECF 2, at 2), she alleges no facts
showing that the Court has federal question jurisdiction with respect to her claims.

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Plaintiff also does not allege facts demonstrating that the Court has diversity jurisdiction
to consider any claims that Plaintiff may be attempting to assert under state law, including any
claims of legal malpractice. To establish diversity jurisdiction under 28 U.S.C. § 1332, a plaintiff
must first allege that she and the defendants are citizens of different states. See 28 U.S.C.
§ 1332(a)(1); Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 388 (1998). For diversity jurisdiction
purposes, an individual is a citizen of the State where she is domiciled, which is defined as the
place where she “has [her] true fixed home . . . and to which, whenever [s]he is absent, [s]he has
the intention of returning.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000)
(internal quotation marks and citation omitted). An individual “has but one domicile.” Id. A
corporation is, however, a citizen “of every State and foreign state by which it has been
incorporated and of the State or foreign state where it has its principal place of business.”
§ 1332(c)(1); see also Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010) (a corporation’s
principal place of business is its “nerve center,” usually its main headquarters). There is also a
second component to diversity jurisdiction − the amount in controversy must be in excess of the
sum or value of $75,000. See § 1332(a).
Plaintiff asserts that she is a citizen of New York State, and that Ricotta & Marks P.C. (a
professional corporation) is incorporated under the laws of New York State, and has its principal
place of business in Long Island City, New York. (ECF 2, at 3.) Plaintiff does not specify the
state citizenship of Thomas Ricotta, Esq., but it appears that he is a partner at the law firm of
Ricotta & Marks P.C. Because both Plaintiff and Ricotta & Marks P.C. are citizens of New York
State, the parties are not diverse, and this Court lacks diversity jurisdiction to consider this
action.

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Accordingly, the Court dismisses this action for lack of subject matter jurisdiction. See
Fed. R. Civ. P. 12(h)(3).
CONCLUSION
The Court dismisses this action for lack of subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3).
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 IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Judgment shall issue.
SO ORDERED.
Dated:

August 1, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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