Opinion
22-CV-10948 (LTS)
02-16-2023
PIERRE LAVI, Plaintiff, v. PUNEET TALWAR; GENERAL MANAGER, BANK CENTRAL POPULAIRE, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff Pierre Lavi brings this action on his own behalf and as “the Owner of Turbo Dynamics Corporation.” By order dated January 18, 2023, the Court granted Plaintiff Pierre Lavi's request to proceed in forma pauperis (IFP), that is, without prepayment of fees.For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
As explained below, as a non-attorney proceeding pro se, Pierre Lavi cannot represent Turbo Dynamics Corporation. Turbo Dynamics Corporation also cannot proceed as a plaintiff without prepayment of the filing fees. See Rowland v. CA Men's Colony, 506 U.S. 194 (1993) (holding that only natural persons can proceed pro se).
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from 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 when the Court lacks subject matter jurisdiction of the claims raised. 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 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. 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. Id.
BACKGROUND
Plaintiff Pierre Lavi resides in Huntington, New York, in Suffolk County, and he provides an address for Turbo Dynamics Corporation at the same address. He makes the following allegations:
Plaintiff also uses the names Parviz Lavi and Peter Lavi.
My company, Turbo Dynamics Corporation, a manufacturing company of gas turbines and jet engine blades for over 40 years was defrauded as Defendants . . .
committed mail and wire fraud against . . . a United States citizen and their company ....[T]he top management of ONEE, the largest government agency in Morocco, . . . decided to enrich themselves by not allowing Turbo Dynamics to receive payment for the transfer of technology and shipment of their machineries to Morocco.(ECF 1 at 1.)
Plaintiff states that “[t]his is an action to recover the balance of the money due to undersigned owed by ONEE. The last payment received from Banque Centrale Populaire de Morocco (BCP) was in the amount of $39,913.19 on 12/02/2020.” (Id. at 2.) He attaches to the complaint a document that appears to indicate that a wire from originator ONEE Branche Electricite, was sent from originator's bank, BCP, to beneficiary Turbo Dynamics Corporation, at Bank of America. (Id. at 3.) Plaintiff contends that “[a] governmental authority committed fraud against undersigned . . . as they violated United States mail and wire fraud [and] are subject to criminal investigation of United States postal services located at Chicago, Illinois.” (Id.) Plaintiff repeatedly refers to harms against the “undersigned” and he signs the document as “Pierre Lavi, Owner, Turbo Dynamics Corporation.” (Id.)
Plaintiff brings this suit for damages against Defendants Puneet Talwar, an American diplomat serving as the U.S. Ambassador to Morocco; and BCP, the bank that ONEE Branche Electricite used for its wire transfer.
Plaintiff has also brought other similar suits. See Lavi v. BNP Paribas, No. 1:22-CV-06922 (LTS) (S.D.N.Y. filed Aug. 12, 2022); Lavi v. Sonelgaz Group of Companies, No. 22-CV-7514 (LTS) (S.D.N.Y. Feb. 8, 2023) (dismissed with 30 days' leave to replead).
DISCUSSION
A. Subject Matter Jurisdiction
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, federal jurisdiction is available only when a “federal question” is presented or when plaintiff and defendant are citizens of different states and the amount in controversy exceeds the sum or value of $75,000. “‘[A]ny party or the court sua sponte, at any stage of the proceedings, may raise the question of whether the court has subject matter jurisdiction.'” United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Prop. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (quoting Manway Constr. Co., Inc. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983)); 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).
1. Federal Question Jurisdiction
To invoke federal question jurisdiction, a plaintiff's claims must arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under federal law 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 Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Merely invoking federal jurisdiction, without pleading any facts demonstrating a federal law claim, does not create federal subject matter jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996).
Plaintiff does not specify the basis for jurisdiction of this suit in federal court, but he attaches a copy of a decision in a case brought under the Federal Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611. The FSIA provides “the sole basis for obtaining jurisdiction over a foreign state in the courts of this country” and renders a foreign government “presumptively immune from the jurisdiction of United States courts unless one of the Act's express exceptions to sovereign immunity applies.” OBB Personenverkehr AG v. Sachs, 136 S.Ct. 390, 394 (2015); 28 U.S.C. § 1330(a) (conferring jurisdiction over “any claim . . . with respect to which the foreign state is not entitled to immunity”). The exception for commercial activity provides that a foreign state shall not be immune from the jurisdiction of United States courts in any case “in which the action is based upon a commercial activity carried on in the United States by the foreign state.” 28 U.S.C. § 1605(a)(2).
The complaint can be understood as alleging that a state-owned entity, ONEE Branche Electricite, failed to pay Turbo Dynamics Corporation in full for machinery shipped to Morocco. Plaintiff, however, has not named as a defendant ONEE, or any other entity that could be considered a foreign state subject to suit under the FSIA. Instead, Plaintiff sues the U.S. Ambassador to Morocco, and BCP, which appears to be a private bank operating in Morocco. The FSIA does not apply to suits against heads of state or government, to accredited diplomats or consular officers, or to other individual foreign officials in their personal capacity. Samantar v. Yousuf, 560 U.S. 305 (2010). Thus, even if Plaintiff had sued a foreign diplomat, rather than an American one, this would not provide a basis for suit under the FSIA. The complaint also does not plead any facts suggesting that the FSIA could apply to Plaintiff's claim against a bank, which is not alleged to be a state-owned entity. Thus, although the complaint might be liberally construed as invoking the FSIA, Plaintiff does not plead any facts suggesting that the FSIA provides a basis for jurisdiction of his claims against either of the named defendants.
Diplomatic and consular immunities are based on treaty law and apply to individual representatives of foreign governments (e.g., ambassadors, embassy officials, consuls) who have been duly accredited by their governments to the U.S. Department of State. United States v. Al Sharaf, 183 F.Supp.3d 45 (D.D.C. 2016); Rana v. Islam, 305 F.R.D. 53 (S.D.N.Y. 2015); United States v. Khobragade, 15 F.Supp.3d 383 (S.D.N.Y. 2014).
2. Diversity Jurisdiction
Plaintiff does not allege facts demonstrating that the Court has diversity jurisdiction of this action. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that the plaintiff and the defendant are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). Diversity of citizenship also exists in a suit between a citizen of a State and a subject of a foreign state, unless the foreign subject is lawfully admitted for permanent residence in the United States and is domiciled in the same State, in which case there is no diversity of citizenship. 28 U.S.C. § 1332(a)(2). In addition to pleading diversity of citizenship, the plaintiff must allege to a “reasonable probability” that the claim is in excess of the sum or value of $75,000.00, the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006).
First, Plaintiff does not plead any facts suggesting that the amount-in-controversy requirement is satisfied. He states that Turbo Dynamics Corporation was paid approximately $40,000 in 2021, and that he seeks to recover the “balance of the money due” it, but he does not allege any facts about the amount owed. Plaintiff thus fails to satisfy his burden of showing that the amount in controversy exceeds $75,000. Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998) (a plaintiff bears the burden of establishing that diversity jurisdiction existed at the time the action commenced.).
Second, Plaintiff does not plead facts adequately demonstrating the citizenship of each party. For purposes of diversity jurisdiction, “[a]n individual's citizenship, within the meaning of the diversity statue, is determined by his domicile.” Johnson v. Smithsonian, 4 Fed. App'x 69, 70 (2d Cir. 2001) (citing Palazzo v. Corio, 232 F.3d 88, 42 (2d Cir. 2000)). Domicile is “the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Linardos, 157 F.3d at 948. A corporation is a citizen, for purposes of Section 1332, of both the State where it is incorporated and the State where it has its principal place of business. Hertz Corp. v. Friend, 559 U.S. 77, 93 (2010).
Plaintiff names himself, both individually and as “owner” of Turbo Dynamics Corporation, as the plaintiff in this action. Plaintiff can only bring suit on his own behalf - not on behalf of Turbo Dynamics Corporation. See United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008) (holding that a nonlawyer cannot bring suit on behalf of an entity).The Court therefore treats this action as having been brought by Pierre Lavi, individually, as he is the only plaintiff who can proceed pro se (and is also the only plaintiff who can proceed IFP).
Plaintiff has repeatedly been advised in prior actions that, as a non-attorney, he cannot prosecute claims on behalf of another. See, e.g., Lavi et al. v. DWS, No. 22-CV-7501 (LTS) (S.D.N.Y. Oct. 7, 2022) (explaining that “a pro se plaintiff cannot represent a corporation, even if he is the sole member or shareholder of that corporation”); Lavi v. Bank Negara Indonesia, No. 22-CV-6000 (VSB) (S.D.N.Y. Sept. 20, 2022) (ECF 6) (“Plaintiff purports to bring this complaint on his own behalf and on behalf of his company, Turbodynamics Corporation. As a pro se litigant, however, Plaintiff cannot act on behalf of another.”).
Although the Court does not reach the merits of the action, the Court notes that there are no allegations that Plaintiff, as an individual, was involved in a transaction with either defendant or with non-party ONEE.
Plaintiff provides an address for himself in Suffolk County, New York but does not indicate whether he is domiciled at the Suffolk County address. In addition, it is unclear from the allegations of the complaint whether Plaintiff has United States citizenship. Because Defendant BCP appears to be organized under the laws of Morocco, Plaintiff cannot sue BCP under the Court's diversity jurisdiction if Plaintiff is also an alien because there would be alien parties on both sides of the litigation. Franceskin v. Credit Suisse, 214 F.3d 253, 258 (2d Cir. 2000) (“[E]ven if a corporation organized under the laws of a foreign nation maintains its principal place of business in a State, and is considered a citizen of that State, diversity i[s] nonetheless defeated if another alien party is present on the other side of the litigation.”); Corporacion Venezolana de Formento v. Vintero Sales Corp., 629 F.2d 786, 790 (2d Cir. 1980) (“‘[T]he presence of aliens on two sides of a case destroys diversity jurisdiction,' just like the presence of two citizens of the same state.”).
The Court also notes that Plaintiff has not alleged any facts suggesting that venue lies in this district. See generally 28 U.S.C. § 1391. Suffolk County is in the Eastern District of New York. 28 U.S.C. § 112(c). The facts alleged in the complaint do not suggest that any part of the events giving rise to this action took place within this district, § 1391(b)(2), or that venue is proper in this district based on the residence of the parties, § 1391(b)(1). If Plaintiff amends his complaint, and if the facts alleged therein show that venue is improper, the Court can transfer the action to any district in which it might have been brought. 28 U.S.C. §§ 1404, 1406.
Even if Plaintiff is a legal permanent resident in the United States and therefore, under § 1332(a)(2), is deemed to reside in the State where he is domiciled (New York), “section 1332(a)(2) does not give the district court jurisdiction over a suit by a permanent resident against a non-resident alien.” Tagger v. Strauss Grp. Ltd., 951 F.3d 124, 127 (2d Cir. 2020).
Plaintiff also has not pleaded facts about the citizenship of Defendants. Plaintiff provides an address for Defendant Puneet Talwar, an American diplomat serving as the Ambassador to Morocco, at the Embassy of the Kingdom of Morocco in Washington, D.C. Plaintiff does not allege that Defendant Talwar is domiciled at that address, and Plaintiff therefore has not pleaded sufficient facts about Defendant Talwar's citizenship for purposes of Section 1332(a). The second defendant is BCP, that is, the Banque Centrale Populaire de Morocco, which ONEE used for its wire transfer to Turbo Dynamics Corporation. Plaintiff provides an address in Washington, D.C., for BCP but has not alleged facts about where BCP is incorporated or has its principal place of business.
Plaintiff's allegations are therefore insufficient to establish diversity jurisdiction, because his allegations regarding both the amount in controversy and the citizenship of the parties are insufficient.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “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) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to show that the Court has subject matter jurisdiction of this action, the Court grants Plaintiff 60 days' leave to amend his complaint to detail his claims. The Court notes, however, that the disputed transaction appears to be between Turbo Dynamics Corporation, which cannot proceed pro se, and ONEE, which is not subject to diversity jurisdiction as a defendant if, as it appears to be, it is a state-owned entity.
The diversity statute, 28 U.S.C. § 1332(a)(4), provides for diversity jurisdiction where a suit is between “a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.” It does not authorize diversity jurisdiction where the foreign state or instrumentality is a defendant. Abrams v. Societe Nationale des Chemins de Fer Francais, 332 F.3d 173, 178 (2d Cir. 2003) (“The FSIA also amended the diversity jurisdiction provision, § 1332. That amendment eliminated jurisdiction over actions against foreign states, and this section refers now only to suits where a foreign state is a plaintiff.”), vacated on other grounds, 542 U.S. 901 (2004).
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-10948 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.