Opinion
1:22-CV-1228 (LEK/TWD)
12-13-2022
KRISTY DOBBS, Plaintiff, v. SEFCU, Defendant.
KRISTY DOBBS PLAINTIFF, PRO SE
KRISTY DOBBS PLAINTIFF, PRO SE
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Kristy Dobbs (“Plaintiff”), proceeding pro se, commenced this action against SEFCU (“Defendant”) on November 18, 2022, and, in lieu of paying the Northern District of New York's filing fee, seeks leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.)
I. IFP APPLICATION
Plaintiff declares that she is unable to pay the filing fee for this action. (See Dkt. No. 2.) The undersigned has reviewed Plaintiff's IFP application and determines she financially qualifies to procced IFP. Therefore, Plaintiff's IFP application is granted.
Plaintiff is advised that she will still be required to pay any costs and fees that she may incur in this matter, including, but not limited to, any copying fees or witness fees.
II. SCREENING OF THE COMPLAINT
A. Legal Standard
Under Section 1915(e), the Court must dismiss a complaint filed IFP if it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). While the law mandates dismissal on any of these grounds, 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 quotations and citations omitted, emphasis in original).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”) (internal quotations and citation omitted). To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555; see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
B. Summary of the Complaint
Plaintiff alleges in her Complaint that money was withdrawn from her account at
Defendant SEFCU. (Dkt. No. 1.) She does not specify when or how much. Id. Plaintiff requests that the Court orders SEFCU to reimburse her in the amount of $20,000. Id.
Plaintiff has also filed three separate actions in this District against Citizens Bank alleging someone withdrew money from her account. See Dobbs v. Citizens Bank et al., 1:10-cv-01487-LEK-RFT, Dkt. No. 1(2010) (“Dobbs I”); Dobbs v. Citizen Bank, 1:20-cv-00627-GLS-CFH, Dkt. No. 1 (2020) (“Dobbs II”); Dobbs v. Citizens Bank, 1:22-cv-01226-TJM-DJS, Dkt. No. 1 (2022) (“Dobbs III”). Dobbs I and Dobbs II were dismissed for failure to state a claim upon which relief could be granted and lack of federal subject matter jurisdiction. On December 7, 2022, U.S. Magistrate Judge Daniel J. Stewart conducted an initial review in Dobbs III and recommended dismissal of the complaint.
C. The Court's Analysis
Plaintiff provides almost no context to her allegations. More importantly, Plaintiff fails to demonstrate this Court's jurisdiction as she demonstrates neither federal question jurisdiction nor diversity jurisdiction. See Smith ex. rel. Bey v. Kelly, 12-CV-2319, 2012 WL 1898944, at *2 (E.D.N.Y. May 24, 2012) (court is obligated to analyze whether subject matter jurisdiction exists as a part of § 1915(e) initial review and to dismiss the complaint when subject matter jurisdiction is found lacking).
Although Plaintiff has used a complaint form alleging subject matter jurisdiction pursuant to federal question, Plaintiff has failed to establish federal question jurisdiction as she has not set forth a federal law claim. 28 U.S.C. § 1331 confers onto federal courts subject matter jurisdiction over all federal questions, or “all civil actions arising under the Constitution, laws, or treaties of the United States.” Federal question jurisdiction exists where the complaint “establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on a resolution of a substantial question of federal law.” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Even liberally construed, Plaintiff identifies no statute under which her Complaint is brought and the Court can discern none. Plaintiffs' Complaint, at best, alleges possible state law claims for fraud in connection with the transaction. Therefore, the Court finds there is no federal question jurisdiction.
To properly allege diversity jurisdiction, Plaintiff must allege (1) diversity of citizenship between the parties, and (2) an amount in controversy that exceeds $75,000. See 28 U.S.C. § 1332(a). Here, Plaintiff cannot establish diversity jurisdiction because Plaintiff and Defendant are both citizens of the same state, New York. Plaintiff provides that she lives in Albany, New York and SEFCU is located in Albany, New York. Moreover, the amount in controversy is $20,000. Therefore, the Court finds there is no diversity jurisdiction.
Accordingly, the undersigned recommends dismissing Plaintiff's Complaint without prejudice. Hollander v. Garrett, 710 Fed.Appx. 35, 36 (2d Cir. 2018) (“[D]ismissal for subject matter jurisdiction must be without prejudice.”). Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to replead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). “[L]ack of subject matter jurisdiction is a substantive defect that cannot be cured by better pleading.” Moran v. Proskauer Rose LLP, No. 1:17-CV-00423 (MAD/TWD), 2017 WL 3172999, at *3 (N.D.N.Y. July 26, 2017). In deference to Plaintiff's pro se status and out of an abundance of caution, the Court recommends granting Plaintiff leave to amend.
In light of the foregoing recommendation, Plaintiff is not prevented from filing a complaint in an appropriate state court, should she wish to do so. However, the undersigned makes no finding as to whether Plaintiff can successfully or properly bring the complaint in state court.
The Court advises Plaintiff that should she be permitted to amend her Complaint, any amended pleading she submits must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint should specifically identify the legal theory or theories that form the basis for her claim.
Plaintiff is cautioned that no portion of her prior Complaint shall be incorporated into her amended complaint by reference. Any amended complaint submitted by Plaintiff must set forth all of the claims she intends to assert against the Defendant and must demonstrate that a case or controversy exists between the Plaintiff and the Defendant which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. If Plaintiff is alleging that the named Defendant violated a law, she should specifically refer to such law. Lastly, Plaintiff is further cautioned that the filing of vexatious, harassing, or duplicative lawsuits may result in the imposition of sanctions, including limitations on her ability to file without prior permission of the Court. See Ajamian v. Nimeh, 14-CV-0320 (GTS), 2014 WL 6078425, at *3 (N.D.N.Y. Nov. 13, 2014) (“[A] federal district court may impose reasonable filing restrictions on a pro se litigant in that particular court, pursuant to 28 U.S.C. § 1651(a) and its inherent authority to control and manage its own docket so as to prevent abuse in its proceedings.”); see also In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff has demonstrated a “clear pattern of abusing the litigation process by filing vexatious and frivolous complaints,” a “leave to file” requirement may be instituted by the court as an appropriate sanction); Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.”); see, e.g., Johnson v. Progressive.com, 19-cv-11202-CM, 2020 WL 589127, at *1 (S.D.N.Y. Feb. 5, 2020) (declining to grant pro se plaintiff leave to amend in light of the plaintiff's “abusive litigation history” and where amendment would be futile).
III. CONCLUSION
For the reasons sated herein, it is hereby
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is GRANTED; and it is further RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).