Cracolici et al v. Saunders et al

Filing 41

OPINION AND ORDER re: 38 MOTION to Dismiss. filed by Craig James Saunders. Based on the foregoing, Defendant's motion to dismiss is GRANTED. The federal claim is dismissed with prejudice and the state law claims are dismissed without prejudice. The Clerk of Court is respectfully directed to terminate the pending motion, (Doc. 38), and close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 4/25/2019) (mml) Transmission to Orders and Judgments Clerk for processing.

Case 7:18-cv-03807-CS Document 41 Filed 04/25/19 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
JAMES A. CRACOLICI and DANIELLE C.
CRACOLICI,
Plaintiffs,
- against -

OPINION AND ORDER
No. 18-CV-3807 (CS)

CRAIG JAMES SAUNDERS,
Defendant.
-------------------------------------------------------------x
Appearances:
James A. Cracolici
Nyack, New York
Counsel for Plaintiffs
Craig James Saunders
Waterdown, Ontario
Pro Se Defendant
Seibel, J.
Before the Court is the motion to dismiss of pro se Defendant Craig James Saunders.
(Doc. 38.)
I.

BACKGROUND
I accept as true the facts, but not the conclusions, set forth in the Second Amended

Complaint. (Doc. 37 (“SAC”).)
Facts
On March 15, 2018, Plaintiffs James A. Cracolici and Danielle C. Cracolici listed for sale
on eBay a comic book entitled “Tales of Suspense #39” (“TOS39”), which features the first
appearance of the superhero Iron Man. (Id. ¶¶ 9, 13.) TOS39 was offered for a “Buy It Now”
price of $7,680. (Id. ¶ 13.)

Case 7:18-cv-03807-CS Document 41 Filed 04/25/19 Page 2 of 8

On March 16, 2018, Defendant Craig James Saunders purchased TOS39 for $7,733.67
(the “Buy it Now” price plus $53.67 for shipping), and submitted payment through Paypal, Inc.
(“Paypal”). (Id. ¶ 14.) On March 23, 2018, Plaintiffs shipped TOS39 to Defendant, and on
March 27, Plaintiffs received confirmation that the package was delivered from both the U.S.
Postal Service (“USPS”) and Canada Post. (Id. ¶ 15.) But on either that day or the day after,
Defendant contacted Plaintiffs claiming that TOS39 was not delivered. (Id. ¶ 16.) Plaintiffs
followed up with the USPS, and on March 28, 2018, the USPS confirmed via email that TOS39
was delivered to the Defendant’s address. (Id.) Defendant, however, requested a refund from
Paypal, which Paypal issued in the full amount of $7,733.67. (Id. ¶ 19.) Plaintiffs allege that
they did not receive any money from Defendant despite the fact that Defendant is in possession
of TOS39.
Procedural History
On April 30, 2018, Plaintiffs filed their initial complaint against Defendant Saunders as
well as eBay, Inc. (“eBay”), and Paypal. (Doc. 1.)1 Due to filing errors, Plaintiffs had to refile
on May 1, 2018 (Doc. 6), and May 8, 2018, (Doc. 12). On June 12, 2018, Defendant Saunders
filed a motion to dismiss, (Doc. 18), but that motion was denied without prejudice to renewal
following a pre-motion conference as required by my Individual Practices, (Doc. 19). On June
20, 2018, the Court set a pre-motion conference for August 22, 2018, and deemed Defendant
Saunders’s initial motion to dismiss to be his pre-motion letter. (Doc. 26.)

1

On June 21, 2018, then-Defendants eBay and Paypal moved to compel arbitration, (Doc. 27),
and on August 13, 2018, the Court granted their motion, (Minute Entry dated Aug. 13, 2018).
Shortly thereafter, Plaintiffs voluntarily dismissed their claims against eBay and Paypal. (Doc.
35.)

2

Case 7:18-cv-03807-CS Document 41 Filed 04/25/19 Page 3 of 8

On August 22, 2018, the Court held a pre-motion conference and granted Plaintiffs leave
to amend. (Minute Entry dated Aug. 22, 2018.) Plaintiffs filed what they fashioned as their
“Second Amended Complaint” on September 18, 2018, bringing the following claims: (1) fraud
and fraudulent inducement, (2) conversion, (3) unjust enrichment, (4) breach of the implied
covenant of good faith and fair dealing, and (5) fraud in violation of 18 U.S.C. § 1343. (SAC
¶¶ 23-51.)2 On October 5, 2018, Defendant Saunders moved to dismiss. (Doc. 38.)3
II.

DISCUSSION
Standing
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation marks omitted). A court lacks
the constitutional power to adjudicate a case where those who seek to invoke the jurisdiction of
the federal courts fail to allege an actual case or controversy. See Corr. Officers’ Benevolent
Ass’n v. City of N.Y., 192 F. Supp. 3d 369, 371-72 (S.D.N.Y. 2016). “The standing doctrine is
‘an essential and unchanging part of the case-or-controversy requirement.’” Id. at 372 (quoting

2

Plaintiff previously filed an Amended Complaint, (Doc. 12), but that document was identical to
the initial Complaint Plaintiff attempted to file on April 30, 2018, and May 1, 2018, (Docs. 1, 6).
Ordinarily complaints made by pro se plaintiffs are to be examined with “special solicitude,”
interpreted “to raise the strongest arguments that they suggest,” Shibeshi v. City of N.Y., 475 F.
App’x 807, 808 (2d Cir. 2012) (summary order) (emphasis and internal quotation marks
omitted), and “held to less stringent standards than formal pleadings drafted by lawyers,” Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks omitted). But here Plaintiff James A.
Cracolici is a lawyer, and thus “the liberal construction courts generally give the pleadings of a
pro se litigant does not apply.” Levy v. Welsh, No. 12-CV-2056, 2013 WL 1149152, at *3
(E.D.N.Y. Mar. 19, 2013) (collecting cases). Defendant Saunders is pro se and, as far as the
Court knows, not a lawyer, so he is entitled to special solicitude.
3

3

Case 7:18-cv-03807-CS Document 41 Filed 04/25/19 Page 4 of 8

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “[T]he irreducible constitutional minimum
of standing contains three elements.” Lujan, 504 U.S. at 560.
First, the plaintiff must have suffered an injury in fact – an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of – the injury has to be
fairly traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court. Third, it must be likely,
as opposed to merely speculative, that the injury will be redressed by a favorable
decision.
Id. at 560-61 (alterations, citations, and internal quotation marks omitted).
Defendant argues that Plaintiffs do not have standing to bring this claim because
“[Defendant] never received the comic book at issue” and because “it was Pay[p]al who
ultimately returned [Defendant’s] funds.” (Doc. 38 ¶ 24.) But these arguments are without
merit. First, Defendants cannot challenge standing by merely denying Plaintiffs’ factual
allegations. Rather, “[f]or purposes of ruling on a motion to dismiss for want of standing, the
court must accept as true all material allegations of the complaint, and must construe the
complaint in favor of the complaining party.” See Corr. Officers’ Benevolent Ass’n, 192 F.
Supp. 3d at 372 (internal quotation marks and alterations omitted). Second, Plaintiffs allege that
Paypal refunded Defendant’s payment only after Defendant “request[ed] a refund.” (SAC ¶ 18.)
Plaintiffs’ alleged injury is therefore fairly traceable to Defendant’s actions and is not the result
of an independent action of Paypal. Accordingly, I reject Defendant’s arguments and find that
Plaintiffs have adequately alleged standing.

4

Case 7:18-cv-03807-CS Document 41 Filed 04/25/19 Page 5 of 8

Plaintiffs’ Claim Under 18 U.S.C. § 1343
The basis for subject matter jurisdiction in this Court is federal question under 28 U.S.C.
§ 1331. (SAC ¶ 6.)4 Plaintiffs bring only one federal claim: “[f]raud in violation of 18 U.S.C.
§ 1343.” (SAC at 9; id. ¶¶ 48-51.) But 18 U.S.C. § 1343 is a criminal statute, and it “do[es] not
create a private right of action.” Carvel v. Franchise Stores Realty Corp., No. 08-CV-8938,
2009 WL 4333652, at *11 (S.D.N.Y. Dec. 1, 2009); see Official Publ’ns, Inc. v. Kable News Co.,
884 F.2d 664, 667 (2d Cir. 1989) (“18 U.S.C. §§ 1341 and 1343 . . . do not provide a private
right of action.”); Bologna v. Allstate Ins. Co., 138 F. Supp. 2d 310, 322 (E.D.N.Y. 2001) (“[N]o
private right of action exists under . . . 18 U.S.C. § 1343 . . . .”) Accordingly, Plaintiffs may not
maintain a cause of action pursuant to § 1343, and their fifth claim is dismissed.
Plaintiffs’ Remaining State Law Claims
In addition to the § 1343 claim, Plaintiffs allege four state law claims. (SAC ¶¶ 23-47.)
The “traditional ‘values of judicial economy, convenience, fairness, and comity’” weigh in favor
of declining to exercise supplemental jurisdiction where all federal law claims are eliminated
before trial. Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Having determined that the only
claim over which this Court has original jurisdiction should be dismissed, and having considered

4

Although the parties are of diverse citizenship, the amount in controversy is $7,733.67, so there
is no diversity jurisdiction under 28 U.S.C. § 1332.

5

Case 7:18-cv-03807-CS Document 41 Filed 04/25/19 Page 6 of 8

the factors set forth in Cohill, I decline to exercise supplemental jurisdiction over Plaintiffs’
remaining state law causes of action. See id. (citing 28 U.S.C. § 1367(c)(3)).5
III.

LEAVE TO AMEND
Leave to amend a complaint should be freely given “when justice so requires.” Fed. R.

Civ. P. 15(a)(2). It is “within the sound discretion of the district court to grant or deny leave to
amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). “Leave to
amend, though liberally granted, may properly be denied for: ‘undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment . . . .’” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)).
Plaintiffs have already amended, after having the benefit of a motion to dismiss and
supporting memorandum of law from Defendant Saunders, (Doc. 18), as well as the Court’s
observations during a pre-motion conference, (Minute Entry dated Aug. 22, 2018). In general, a
plaintiff’s failure to fix deficiencies in the previous pleading, after being provided notice of them,
is alone sufficient ground to deny leave to amend. See Nat’l Credit Union Admin. Bd. v. U.S.
Bank Nat’l Ass’n, 898 F.3d 243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the
deficiencies in his complaint when he first amended, he clearly has no right to a second
amendment even if the proposed second amended complaint in fact cures the defects of the first.
Simply put, a busy district court need not allow itself to be imposed upon by the presentation of

Defendant also argued that Plaintiffs’ claims should be dismissed for improper venue, (Doc. 38
¶¶ 3-14), lack of personal jurisdiction, (id. ¶¶ 40-48), failure to join an indispensable party, (id.
¶¶52-56), and failure to state a claim, (id. ¶¶ 57-92), but because I am dismissing Plaintiffs’
claims, I need not reach these issues.
5

6

Case 7:18-cv-03807-CS Document 41 Filed 04/25/19 Page 7 of 8

theories seriatim.”) (alteration, footnotes, and internal quotation marks omitted); In re Eaton
Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242 (S.D.N.Y. 2005) (denying leave to
amend because “the plaintiffs have had two opportunities to cure the defects in their complaints,
including a procedure through which the plaintiffs were provided notice of defects in the
Consolidated Amended Complaint by the defendants and given a chance to amend their
Consolidated Amended Complaint,” and “plaintiffs have not submitted a proposed amended
complaint that would cure these pleading defects”), aff’d sub nom. Bellikoff v. Eaton Vance
Corp., 481 F.3d 110, 118 (2d Cir. 2007) (per curiam) (“[P]laintiffs were not entitled to an
advisory opinion from the Court informing them of the deficiencies in the complaint and then an
opportunity to cure those deficiencies.”) (internal quotation marks omitted).
Further, the issues fatal to Plaintiffs’ SAC are substantive and cannot be cured by better
pleading, see Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000), and Plaintiffs have not asked
for leave to amend or suggested that they possess additional facts that could remedy the
deficiencies. Accordingly, the Court declines to grant leave to amend sua sponte. See Loreley
Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015) (denial of
leave to amend would be proper where “request gives no clue as to how the complaint’s defects
would be cured”) (internal quotation marks omitted); TechnoMarine SA v. Giftports, Inc., 758
F.3d 493, 505 (2d Cir. 2014) (plaintiff need not be given leave to amend if he fails to specify
how amendment would cure the pleading deficiencies in his complaint); Gallop v. Cheney, 642
F.3d 364, 369 (2d Cir. 2011) (“[N]o court can be said to have erred in failing to grant a request
that was not made.”); id. (proper to dismiss with prejudice where no indication plaintiff could or
would provide additional allegations leading to different result).

7

Case 7:18-cv-03807-CS Document 41 Filed 04/25/19 Page 8 of 8

IV.

CONCLUSION
Based on the foregoing, Defendant’s motion to dismiss is GRANTED. The federal claim

is dismissed with prejudice and the state law claims are dismissed without prejudice. The Clerk
of Court is respectfully directed to terminate the pending motion, (Doc. 38), and close the case.
SO ORDERED.
Dated: April 25, 2019
White Plains, New York
_____________________________
CATHY SEIBEL, U.S.D.J.

8