HUBI v. NALTY et al

Filing 27

MEMORANDUM/ORDER THAT THE COMPLAINT AGAINST KEVIN NALTY, A/K/A KEVIN NALTS, IS DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION. PLAINTIFF IS GRANTED LEAVE TO AMEND HIS COMPLAINT TO PROPERLY INVOKE THIS COURTS SUBJECT MATTER JURISDICTION. PLAINTIFF SHALL FILE ANY AMENDED COMPLAINT WITHIN 30 DAYS OF THE DATE OF THIS ORDER OR WAIVE HIS RIGHT TO SO AMEND. SIGNED BY HONORABLE LOUIS H. POLLAK ON 6/7/11. 6/9/11 ENTERED AND COPIES E-MAILED.(mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SAM HUBI,

Civil Action
Plaintiff,

No. 10-3821

v.
KEVIN NALTY, a/k/a Kevin Nalts, et
al.,
Defendants.

June 7, 2011
MEMORANDUM/ORDER
I. Background
Plaintiff Sam Hubi, a citizen of Pennsylvania and Philadelphia ice cream truck operator,
filed a pro se complaint against Kevin Nalty, also a citizen of Pennsylvania, concerning a video
that Mr. Nalty created and published on the Internet via Youtube.1 Mr. Hubi alleged that the
Youtube video included footage of Mr. Hubi which, according to the complaint, was used
without permission and depicted Mr. Hubi as a “creepy ice cream man.” (Docket No. 1 at 3.)
Mr. Hubi claims that the video has subjected him to “harassment [and] discrimination” and
caused him a loss of income. (Id.)

1

Youtube LLC was initially a co-defendant in this suit, but the action against it was
voluntarily dismissed by plaintiff Hubi pursuant to Fed. R. Civ. P. 41(a). (Docket No. 11.) The
company runs Youtube.com, a popular website that hosts user-created videos.

Defendant Nalty moved to dismiss the suit for failure to state a claim pursuant to Fed. R.
Civ. P. 12(b)(6). Plaintiff Hubi, now represented by counsel, opposes the motion.
II. Discussion
Before considering the merits of the motion, this court must consider sua sponte whether
it has subject matter jurisdiction to hear the case. Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 94 (1998) (asserting that the presence of subject matter jurisdiction is a “question [that]
the court is bound to ask and answer for itself”). “‘Without jurisdiction the court cannot proceed
at all in any cause.’” Id. (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868)).
Federal district courts are courts of limited jurisdiction. Federal jurisdiction over civil
actions is generally based on diversity of citizenship or the need to resolve a question “arising
under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §§ 1332(a) (diversity),
1331(a) (“arising under” jurisdiction). Diversity jurisdiction is unavailable in the present case
because both parties are citizens of Pennsylvania. This court therefore has jurisdiction over the
case only if the complaint raises a federal question.
At the pleadings stage, the presence of federal question jurisdiction turns on whether “a
federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Bracken
v. Matgouranis, 296 F.3d 160, 163 (3d Cir. 2002). In this case, the complaint will be liberally
construed because Mr. Hubi, a layman, prepared it himself. See Merritt v. Fogel, 349 F. App’x
742, 745 (3d Cir. 2009). Nonetheless, the claim must not be “so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to
involve a federal controversy.” Steel Co., 523 U.S. at 89 (citation omitted).

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Liberally construed, the complaint alleges three causes of action: (1) defamation;2 (2)
invasion of privacy;3 and (3) civil rights violations.4 Defamation is a common law claim that has
been codified into Pennsylvania law. See 42 Pa. C.S. § 8343 (2007). It has no basis in federal
law. See Finch v. Cambria Cnty. Prison, 399 F. App’x 703 (3d Cir. 2010) (upholding the district
court’s dismissal of a pro se complaint alleging defamation for lack of subject matter
jurisdiction). Plaintiff Hubi’s claim that he was defamed when Mr. Nalty allegedly characterized
him as “creepy” does not present a federal question. (Docket No. 1 at 3.)
Mr. Hubi also alleges that his privacy was invaded when he was portrayed in a “false
light” in the Youtube video. (Id. at 2.) Invasion of privacy is a claim that arises under state law
rather than federal law. Rolax v. Whitman, 53 F. App’x 635, 638 (3d Cir. 2002) (“An invasion of
privacy claim is not a constitutional tort, however, but rather a creature of state law.”). Although
the Constitution does protect some privacy interests, see, e.g., Lawrence v. Texas, 539 U.S. 558
(2003) (holding that states may not prohibit consensual and private sexual activity), no violation

2

The complaint lists “liable [sic]” and slander as bases for federal jurisdiction. (Docket
No. 1 at 2.) Each is a form of defamation. See Restatement (Second) of Torts § 568.
3

Plaintiff Hubi lists “portraying plaintiff in a false light” and “invasion of privacy” in the
complaint. (Docket No. 1 at 2.) False light claims are a form of invasion of privacy. See
Restatement (Second) of Torts § 652E.
4

The complaint also lists “first amendment” and “harassment over the internet” in the
portion of the pro se complaint form which requests that the pro se plaintiff identify the basis for
federal diversity jurisdiction. Issues relating to the First Amendment may confer federal
jurisdiction in defamation cases when the amendment is used as a defense, see, e.g., New York
Times Co. v. Sullivan, 376 U.S. 254 (1964), but that is inapplicable here. “Harassment” of this
sort is not a civil cause of action under Pennsylvania or federal law. See Sobel v. Wingard, 531
A.2d 520, 523 (Pa. Super. Ct. 1987) (“declin[ing] to create a new cause of action in tort for
‘harassment’”).

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of constitutional privacy by a state is alleged. Accordingly, plaintiff Hubi’s allegation
concerning invasion of privacy does not afford a basis for federal jurisdiction.
Mr. Hubi also claims a violation of his civil rights. A civil rights violation might confer
federal jurisdiction—many civil rights are protected by both the Constitution and federal
law—but the complaint alleges only an unspecified “violation of [Mr. Hubi’s] civil rights.”
(Docket No. 1 at 2.) It is not clear what federally protected civil right Mr. Hubi alleges to have
been violated, and none is apparent from the allegations of the pro se complaint. As a result, Mr.
Hubi’s bald assertion of a civil rights claim is not substantial enough to confer federal question
jurisdiction on this court.
III. Conclusion
Plaintiff Hubi has not adequately pled the basis for this court’s subject matter jurisdiction.
Defamation and invasion of privacy are not federal causes of action. Invoking the First
Amendment or claiming civil rights violations without more detail is insufficient to confer
federal jurisdiction on his claims.
Mr. Hubi filed the complaint pro se, but he is now represented by counsel. His complaint
will be dismissed for lack of subject matter jurisdiction, but pursuant to Fed. R. Civ. P. 15(a)(2)
he will be given 30 days to amend his complaint to allege a sufficient basis for federal
jurisdiction.
ORDER
AND NOW, this 7th day of June, 2011, upon consideration of defendant’s motion to
dismiss and the memorandum of law submitted with said motion, it is hereby ORDERED that
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the complaint against Kevin Nalty, a/k/a Kevin Nalts, is DISMISSED for lack of
subject matter jurisdiction. Plaintiff is granted leave to amend his complaint to properly invoke
this court’s subject matter jurisdiction. Plaintiff shall file any amended complaint within 30 days
of the date of this order or waive his right to so amend.

/s/ Louis H. Pollak
Pollak, J.

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