Vasquez et al v. The Reece School

Filing 47

ORDER: Accordingly, Plaintiffs' remaining state law claims against Defendants are dismissed without prejudice for lack of subject matter jurisdiction; and Plaintiffs' 42 U.S.C. § 1983 claim, 29 U.S.C. § 794 claim, and negl igent infliction of emotional distress claim against Defendants are dismissed with prejudice. The Clerk of Court is directed to enter judgment for Defendants and to close this case. SO ORDERED. (Signed by Judge Gregory H. Woods on 5/8/2024) (vfr) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
LISA VASQUEZ, on behalf of herself and on
:
behalf of her infant daughter, J.V.,
:
:
Plaintiffs, :
-against:
:
THE REECE SCHOOL,
:
Defendant. :
:
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GREGORY H. WOODS, United States District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 5/8/2024

1:22-cv-5986-GHW-JW
ORDER

On February 8, 2024, the Court issued an order adopting Magistrate Judge Willis’s January
24, 2024 Report and Recommendation (“R&R”), recommending that the Court grant in part and
deny in part Defendant’s 12(b)(6) motion to dismiss. Dkt. Nos. 40, 41. In that R&R, Magistrate
Judge Willis determined that Plaintiffs’ 42 U.S.C. § 1983 claim, 29 U.S.C. § 794 claim, and negligent
infliction of emotional distress claim should each be dismissed; and Plaintiffs’ breach of contract
claim should not be dismissed. See generally Dkt. No. 40; see also Dkt. No. 41 (adopting this
recommendation). Leave to amend was denied as to the dismissed claims, so Plaintiffs’ 42 U.S.C.
§ 1983 claim, 29 U.S.C. § 794 claim, and negligent infliction of emotional distress claim were each
dismissed with prejudice. See Dkt. No. 41.
This dismissal meant that no federal claims remained in the case, and the parties are not
diverse. See generally Dkt. No. 45. Because Plaintiffs failed to allege facts showing that the Court has
either federal question or diversity jurisdiction over this action, Plaintiffs were ordered to show
cause why this action should not be dismissed for lack of subject matter jurisdiction. See id. at 4
(citing Fed. R. Civ. P. 12(h)(3)). The Court noted that, if Plaintiffs failed to show cause for why this
action should not be dismissed, the Court expected to dismiss the remaining state law claims in this
action without prejudice for lack of subject matter jurisdiction. See id. (citing Fed. R. Civ. P. 12(h)(3);

Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (“[W]here a court lacks subject
matter jurisdiction, it also lacks the power to dismiss with prejudice.”)).
Plaintiff responded to the order to show cause on May 8, 2024, writing: “Plaintiffs see no
basis for this case to remain in Federal Court and therefore will not oppose a dismissal without
prejudice giving plaintiffs the opportunity to file a case in State Court.” Dkt. No. 46 at 1.
Accordingly, Plaintiffs’ remaining state law claims against Defendants are dismissed without
prejudice for lack of subject matter jurisdiction; and Plaintiffs’ 42 U.S.C. § 1983 claim, 29 U.S.C. §
794 claim, and negligent infliction of emotional distress claim against Defendants are dismissed with
prejudice. The Clerk of Court is directed to enter judgment for Defendants and to close this case.
SO ORDERED.
Dated: May 8, 2024
New York, New York

__________________________________
GREGORY H. WOODS
United States District Judge

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