Obot v. Verizon Communications

Filing 14

DECISION AND ORDER: For the reasons set forth in the attached Decision and Order, the Defendant's motion to dismiss for lack of subject-matter jurisdiction 10 is granted. The Plaintiff may file an amended complaint within 30 days of the date of this Decision and Order. A copy of this entry along with a copy of the Decision and Order have been mailed to Otu A. Obot, 502 Windermere Blvd., Amherst, NY 14226. SO ORDERED. Signed by Hon. Richard J. Arcara on 3/6/18. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
OTU A. OBOT,
Plaintiff,
16-CV-894-A
DECISION AND ORDER

v.
VERIZON COMMUNICATIONS,
Defendant.
_______________________________________

This case is before the Court on the Defendant’s motion to dismiss the pro se
complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). For the reasons
stated below, the Court grants the Defendant’s motion to dismiss for lack of subject-matter
jurisdiction and grants the Plaintiff leave to file an amended complaint within 30 days of
the date of this Decision and Order.
BACKGROUND
Liberally construed, the complaint seeks $392,722.82 in damages based on the
allegation that the Defendant “disabled plaintiff’s telephone line and used that window of
opportunity to gain entrance to plaintiff’s home under the guise of making repairs to
telephone wirings, to covertly install FIOS cable equipment without [the Plaintiff’s]
knowledge, permission or consent.” Docket No. 1 ¶ 5. The Plaintiff makes a variety of
claims based on this allegation, most of which suggest that the Plaintiff has suffered
mental anguish as a result of the Defendant’s actions and that his monthly bill from the
Defendant has increased.

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DISCUSSION
A. The Court lacks subject-matter jurisdiction over this case
The complaint—even when liberally construed given the Plaintiff’s pro se status—
does not plausibly allege that the Court has subject-matter jurisdiction over this case.
First, nothing in the complaint plausibly suggests that the Plaintiff’s allegations, if
true, would state a federal question. See 28 U.S.C. § 1331. To the contrary, the
complaint appears to only allege, as the Defendant puts it, a “routine billing dispute”—not
a violation of federal law. Docket No. 10-1 at 7. The complaint’s citations to several
jurisdiction-conferring statutes do not change this. The Court’s assessment of whether
federal question jurisdiction exists must “be found from ‘what necessarily appears in the
plaintiff’s statement of his own claim.’” W. 14th St. Comm. Corp. v. 5 West 14th Owners
Corp., 815 F.2d 188, 192 (2d Cir. 1987) (citing Taylor v. Anderson, 234 U.S. 74, 75-76
(1914)) (ellipsis omitted).

In other words, the complaint’s factual allegations must

establish that federal question jurisdiction exists. The allegations in this case do not do
so.
Second, the complaint does not plausibly allege that the Court has diversity
jurisdiction over this case. See 28 U.S.C. § 1332. Rather, the complaint states that the
Plaintiff “is a resident of the Town of Amherst, County of Erie, State of New York,” and it
alleges that the Defendant “is a telecommunications utility company with its regional place
of business located at 65 Franklin Street, Buffalo, New York.” Complaint ¶ 2. In other
words, the complaint alleges that both the Plaintiff and the Defendant are citizens of New
York State. 1 The Plaintiff has, thus, not met his burden of establishing that there is

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If the Defendant is a corporation, it is, for diversity jurisdiction purposes, a citizen of the state or states in
which (1) it is incorporated, and/or (2) “it has its principal place of business.” 28 U.S.C. § 1332(c)(1).

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diversity between the parties, and he has therefore not shown that the Court has diversity
jurisdiction over this case. See Herrick Co., Inc. v. SCS Comm’cs, Inc., 251 F.3d 315,
322-23 (2d Cir. 2001) (“[I]t is well established that the party seeking to invoke jurisdiction
under 28 U.S.C. § 1332 bears the burden of demonstrating that the grounds for diversity
exist and that diversity is complete.”) (quotation marks omitted).
Third and finally, no other basis for subject-matter jurisdiction is apparent from the
face of the complaint. Although the Plaintiff is proceeding pro se, he must still “establish
subject matter jurisdiction to proceed in federal court.” Harrison v. New York, 95 F. Supp.
3d 293, 311 (E.D.N.Y. 2015) (quotation marks omitted). Because the Plaintiff has not
done so, his complaint must be dismissed.
B. Whether the Plaintiff should be given leave to amend
A court typically “should not dismiss” a pro se complaint “without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(quotation marks and citation omitted). However, if “the problem” with a complaint is
“substantive,” such that “better pleading will not cure it,” “[r]epleading would . . . be futile,”
and a pro se plaintiff need not be provided leave to amend. Id.
Dismissal for lack of subject-matter jurisdiction is often the type of dismissal for
which “repleading would . . . be futile.” Indeed, it is difficult to see how a liberal reading
of the complaint in this case might establish subject-matter jurisdiction. However, out of
an abundance of caution given the Plaintiff’s pro se status, the Court will grant the Plaintiff
leave to amend his complaint. See Naughton v. Naughton, No. 11-CV-2865(SLT)(LB),
2011 WL 3701972, at *3 (E.D.N.Y. Aug. 23, 2011) (granting pro se plaintiff leave to amend

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following dismissal for lack of subject-matter jurisdiction, even though “Plaintiffs have not
directly asserted, or suggested through facts in their complaint, any other basis for federal
question jurisdiction”). Within 30 days of the date of this Decision and Order, the Plaintiff
may file an amended complaint that addresses the deficiencies identified in this Decision
and Order. The Defendant need not respond to the amended complaint unless and until
the Court directs the Defendant to so. If the Plaintiff fails to file an amended complaint
within 30 days of the date of this Decision and Order, the Clerk of Court is directed to
close this case and enter judgment for the Defendant without further order of the Court.
CONCLUSION
For the reasons stated above, the Defendant’s motion to dismiss for lack of
subject-matter jurisdiction (Docket No. 10) is granted. The Plaintiff may file an amended
complaint within 30 days of the date of this Decision and Order.
SO ORDERED.

Dated: March 6, 2018
Buffalo, New York

__s/Richard J. Arcara___________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE

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