Buxbaum v. TD Bank

Filing 12

ORDER TO AMEND granting 7 Motion. Giving particular deference to Plaintiff's pro se status, the Court GRANTS Plaintiff's request for leave to file a second amended complaint. An Amended Complaint form is attached to this Order. Plainti ff is advised that any amended complaint will supplant, and not supplement, his prior pleadings, and that he should include all relevant allegations in the new complaint. Plaintiff's second amended complaint must address this Court's subjec t matter jurisdiction and the propriety of venue in this District. Should the Court determine that it lacks subject matter jurisdiction to consider the case, it may dismiss the case sua sponte. Should the Court determine that venue is improper in thi s District, it may dismiss or transfer the case on that basis. Finally, Plaintiff is reminded that any amended complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8. The Cler k's Office is directed to terminate the motion at docket entry 7. The Clerk's Office is further directed not to issue summonses or subpoenas in this case until further order of the Court.. (Signed by Judge Katherine Polk Failla on 3/10/2025) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL BUXBAUM,
Plaintiff,
-v.-

24 Civ. 9832 (KPF)
ORDER TO AMEND

TD BANK,
Defendant.
KATHERINE POLK FAILLA, District Judge:

Plaintiff Michael Buxbaum filed his initial pro se complaint against
Defendant TD Bank on December 18, 2024. (Dkt. #1). One week later,
Plaintiff filed an amended complaint with a request for injunctive relief. (Dkt.
#3). See generally Fed. R. Civ. P. 15(a)(1)(A) (“A party may amend its pleading
once as a matter of course no later than … 21 days after serving it[.]”). Though
both pleadings were sparse, Plaintiff alleges that “TD Bank refuses to activate
my debit card to spend money” (Dkt. #3 at 5), and requests that restrictions be
lifted from his accounts (id. at 7).
On January 10, 2025, this case was assigned to the undersigned, and an
initial pretrial conference was scheduled. (Dkt. #6). Thereafter, on
January 17, 2025, Plaintiff filed a motion requesting that the Court direct
Defendant to transfer $13,050 from Plaintiff’s TD Bank Account to an entity
known as Payward, Inc. (Dkt. #7-8). More recently, while that motion has
been pending, Plaintiff has submitted letter requests (i) for issuance of a
summons (Dkt. #9), (ii) for leave to amend a second time (Dkt. #10), and (iii) for
a subpoena to Defendant (Dkt. #11).

STANDARD OF REVIEW
The Court is obliged 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,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474-75 (2d Cir. 2006) (internal quotation marks and citations omitted)
(emphasis in original). However, “a pro se plaintiff still bears the burden of
proving subject matter jurisdiction by a preponderance of the evidence.” Logan
v. Town of Windsor, 833 F. App’x 919, 920 (2d Cir. 2021) (summary order)
(citing Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020), and
Cooke v. United States, 918 F.3d 77, 80 (2d Cir. 2019)). Similarly, “pro se
status does not relieve a plaintiff of the pleading standards otherwise
prescribed by the Federal Rules of Civil Procedure.” Saidin v. N.Y.C. Dep’t of
Educ., 498 F. Supp. 2d 683, 687 (S.D.N.Y. 2007); see also Triestman, 470 F.3d
at 477 (“[P]ro se status ‘does not exempt a party from compliance with relevant
rules of procedural and substantive law.’” (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983))).
JURISDICTION AND VENUE
Before granting any or all of Plaintiff’s requests, the Court wishes to
address the threshold issue of its subject matter jurisdiction. Subject matter
jurisdiction “is a threshold issue that must be addressed prior to the merits.”
Bates v. Offit Kurman Att’ys at L. LLP, No. 19 Civ. 2814 (KPF), 2019 WL
7067092, at *2 (S.D.N.Y. Dec. 23, 2019) (internal quotation omitted). “[A]ny
party or the court sua sponte, at any stage of the proceedings, may raise the
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question of whether the court has subject matter jurisdiction.” Manway
Constr. Co. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir.
1983); 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[.]”). “If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
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 has subject matter jurisdiction only when a
“federal question” is presented or, when asserting claims under state law under
the court’s diversity jurisdiction, when the plaintiff and the defendant are
citizens of different States and the amount in controversy exceeds the sum or
value of $75,000.
Both of Plaintiff’s complaints claim subject matter jurisdiction under
both federal question jurisdiction and diversity jurisdiction. (Dkt. #1, 3). As to
the former, Plaintiff responds “New York” to the question regarding “the specific
federal statutes, federal treaties, and/or provisions of the United States
Constitution that are at issue in this case.” (Dkt. #1 at 3; Dkt. #3 at 3). As to
the latter, Plaintiff recites that he is a citizen of Florida; that TD Bank has its
principal place of business in New York; and that the amount in controversy
exceeds $75,000. (Dkt. #1 at 3-4; Dkt. #3 at 3-4).
Plaintiff does not allege facts sufficient to establish the Court’s federal
question jurisdiction to consider his claims. To invoke federal question
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jurisdiction, a plaintiff’s claims must arise “under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. An action arises under the
court’s federal question jurisdiction 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 Assurance, Inc. v. McVeigh, 547 U.S. 677, 690
(2006) (internal quotation marks omitted)). Mere invocation of federal question
jurisdiction, without any facts demonstrating a federal law claim, does not
create federal question jurisdiction. See Nowak v. Ironworkers Local 6 Pension
Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996). Plaintiff specifies no such facts
his complaints, and the Court can discern none from the text of his
complaints.
Inasmuch as Plaintiff attempts to assert claims under state law, under
the Court’s diversity jurisdiction, Plaintiff also does not allege facts sufficient to
establish the Court’s diversity jurisdiction. To establish diversity jurisdiction
under 28 U.S.C. § 1332, a plaintiff must first allege that he and the defendant
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) (“A case falls within the federal district
court’s ‘original’ diversity ‘jurisdiction’ only if diversity of citizenship among the
parties is complete, i.e., only if there is no plaintiff and no defendant who are
citizens of the same State.”). For diversity purposes, an individual is a citizen
of the State where he is domiciled, which is defined as the place where the
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individual “has his true fixed home ... and to which, whenever he is absent, 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. As relevant here, “a national bank is a
citizen only of the state listed in its articles of association as its main office.”
OneWestBank, N.A. v. Melina, 827 F.3d 214, 219 (2d Cir. 2016); accord
Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 307 (2006); see also 28 U.S.C.
§ 1348.
Plaintiff recites that he is a domiciliary of Florida, and that TD Bank has
its principal place of business in New York. Courts have observed, however,
that TD Bank has its headquarters in New Jersey or in Delaware. See Fabric
Selection, Inc. v. A & T Trading US, Inc., No. 20 Misc. 0864 (ARR) (VMS), 2021
WL 811371, at *4 (E.D.N.Y. Feb. 5, 2021) (collecting cases) (“TD Bank is not
incorporated in New York and does not maintain a principal place of business
in New York.”), report & recommendation adopted, 2021 WL 810340 (E.D.N.Y.
Mar. 3, 2021); Nucci v. PHH Mortg. Corp., No. 14 Civ. 2683 (NGG) (RML), 2015
WL 1476892, at *3 n.2 (E.D.N.Y. Mar. 31, 2015). That error does not alter the
diversity analysis. However, the Court has difficulty determining that the
amount in controversy requirement has been satisfied. The Court recognizes
the general principle that any amount pleaded on “the face of the complaint” is
presumptively treated as “a good faith representation of the actual amount in
controversy.” Scherer v. Equitable Life Assurance Soc’y of the U.S., 347 F.3d
394, 397 (2d Cir. 2003) (quoting Wolde-Meskel v. Vocational Instruction Project
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Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999)). However, “[t]he amount in
controversy must be non-speculative to satisfy the [jurisdictional requirement],
and conclusory allegations that the amount-in-controversy requirement is
satisfied are insufficient.” Trisvan v. Regal Ent. Grp., No. 21 Civ. 187 (MKB),
2021 WL 3145932, at *5 (E.D.N.Y. July 26, 2021) (citing Valente v. Garrison
from Harrison LLC, No. 15 Civ. 6522 (DLI) (MDG), 2016 WL 126375, at *2
(E.D.N.Y. Jan. 11, 2016) (“[B]oilerplate pleadings do not suffice to establish
that [an] action involves an amount in controversy adequate to support federal
diversity jurisdiction.”)). The fact remains that no allegation in either of
Plaintiff’s complaints substantiates his amount in controversy figure; to the
contrary, the accuracy of that figure is undermined insofar as (i) the claims in
the original and amended complaints were that TD Bank refused to allow
Plaintiff to use his debit card and (ii) the amount cited in Plaintiff’s motion
papers is $13,050.
Separately, the Court has concerns about whether this District is the
proper venue for this action. Generally speaking, venue lies in
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or
a substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such
action.
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28 U.S.C. § 1391(b). For venue purposes, a “natural person” resides in the
judicial district where the person is domiciled, and any other “entity with the
capacity to sue and be sued,” if a defendant, resides in any judicial district
where it is subject to personal jurisdiction with respect to the civil action in
question. Id. § 1391(c)(1), (2).
Plaintiff recites that the events giving rise to his claim took place in “New
York.” (Dkt. #1 at 4; Dkt. #3 at 4). However, the State of New York
encompasses four districts, see 28 U.S.C. § 112, and the Court is unclear
which district is implicated by Plaintiff’s allegations. In addition, to the extent
that Plaintiff believes the events at issue took place in New York because he
believes that Defendant’s principal place of business is in New York, the Court
clarifies for Plaintiff that TD Bank is headquartered in New Jersey or in
Delaware.
FEDERAL RULE OF CIVIL PROCEDURE 8
The Court recognizes that Plaintiff seeks leave to amend his pleadings a
second time. (Dkt. #10). It is true that the principle that a “court should freely
give leave [to amend a pleading] when justice so requires,” Fed. R. Civ.
P. 15(a)(2), is particularly applicable to pro se plaintiffs, see Davis v. Goord, 320
F.3d 346, 352 (2d Cir. 2003). However, Rule 8 of the Federal Rules of Civil
Procedure requires a complaint to make a short, plain statement showing that
the pleader is entitled to relief. A complaint states a claim for relief if the claim
is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for
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plausibility, the court accepts all well-pleaded factual allegations as true and
draws all reasonable inferences in the pleader’s favor. Iqbal, 556 U.S. at 67879 (citing Twombly, 550 U.S. at 555). But the court need not accept
“[t]hreadbare recitals of the elements of a cause of action,” which are
essentially legal conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555).
After separating legal conclusions from well-pleaded factual allegations, the
court must determine whether those facts make it plausible — not merely
possible — that the pleader is entitled to relief.
“When a complaint does not comply with the requirement that it be short
and plain, the court has the power, on its own initiative or in response to a
motion by the defendant, to strike any portions that are redundant or
immaterial, see Fed. R. Civ. P. 12(f), or to dismiss the complaint.” Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
In his complaints, Plaintiff alleges simply that “TD Bank refuses to
activate my debit card to spend money,” and that his “debit card is being
interfered with from the bank online.” (Dkt. #1 at 5; Dkt. #3 at 5). In his
motion papers, Plaintiff asks the Court to direct TD Bank to wire-transfer
funds from Plaintiff’s account to another account, but again offers no
information regarding the circumstances of TD Bank’s alleged refusal. (Dkt. #7
at 1).

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CONCLUSION
Giving particular deference to Plaintiff’s pro se status, the Court GRANTS
Plaintiff’s request for leave to file a second amended complaint. An Amended
Complaint form is attached to this Order. Plaintiff is advised that any
amended complaint will supplant, and not supplement, his prior pleadings,
and that he should include all relevant allegations in the new complaint.
Plaintiff’s second amended complaint must address this Court’s subject
matter jurisdiction and the propriety of venue in this District. Should the
Court determine that it lacks subject matter jurisdiction to consider the case, it
may dismiss the case sua sponte. Should the Court determine that venue is
improper in this District, it may dismiss or transfer the case on that basis.
Finally, Plaintiff is reminded that any amended complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8.
The Clerk’s Office is directed to terminate the motion at docket entry 7.
The Clerk’s Office is further directed not to issue summonses or subpoenas in
this case until further order of the Court.
SO ORDERED.
Dated: March 10, 2025
New York, New York
KATHERINE POLK FAILLA
United States District Judge

9

U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

AMENDED

-against-

COMPLAINT
Do you want a jury trial?
? ??Yes ? ??No

Write the full name of each defendant. If you need more
space, please write “see attached” in the space above and
attach an additional sheet of paper with the full list of
names. The names listed above must be identical to those
contained in Section II.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

I.

BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of
cases can be heard in federal court: cases involving a federal question and cases involving
diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United
States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,
a case in which a citizen of one State sues a citizen of another State or nation, and the amount
in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may
be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
? ??Federal Question
? ??Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff ,

, is a citizen of the State of
(Plaintiff’s name)

(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.
If more than one plaintiff is named in the complaint, attach additional pages providing
information for each additional plaintiff.

Page 2

If the defendant is an individual:
The defendant,

, is a citizen of the State of
(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.

If the defendant is a corporation:
The defendant,

, is incorporated under the laws of

the State of
and has its principal place of business in the State of
or is incorporated under the laws of (foreign state)
and has its principal place of business in

.

If more than one defendant is named in the complaint, attach additional pages providing
information for each additional defendant.

II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.

First Name

Middle Initial

Last Name

Street Address

County, City

State

Telephone Number

Email Address (if available)

Zip Code

Page 3

B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. Attach additional pages if needed.
Defendant 1:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

First Name

Last Name

Zip Code

Defendant 2:

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

First Name

Last Name

Zip Code

Defendant 3:

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Page 4

Defendant 4:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

III. STATEMENT OF CLAIM
Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and what each defendant personally did or failed to do that harmed you. Attach
additional pages if needed.

Page 5

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical
treatment, if any, you required and received.

IV. RELIEF
State briefly what money damages or other relief you want the court to order.

Page 6

V. PLAINTIFF’S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported
by existing law or by a nonfrivolous argument to change existing law; (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery;
and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil
Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Street Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
? ??Yes

? ??No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

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