Opinion
04-CV-6082T(Fe).
May 5, 2004
ORDER
Plaintiff pro se, Marvin L. Jones, has filed this action asserting a cause of action for "First Amendment rights, civil liberties, life liberty and the pursuit of happiness." The Civil Cover Sheet indicates the basis for jurisdiction is diversity, although he indicates that the parties are all citizens of this State. The complaint alleges that a private party stole plaintiff's property in 1978 and "this tortious offense has interfered with the plaintiff's first amendment rights of: life, liberty and the pursuit of happiness." The filing fee has been paid and, therefore, the only basis for review of the complaint prior to service and answer is for jurisdiction.
A U.S. district court is a court of limited jurisdiction, "empowered to act only within the bounds of Article III of the United States Constitution and statutes enacted by Congress stemming therefrom." W.G. v. Senatore, 18 F.3d 60, 64 (2d Cir. 1994) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80, 2 L.Ed. 60 (1803)). The issue of "[f]ederal subject matter jurisdiction may be raised at any time during litigation and must be raised sua sponte when there is an indication that jurisdiction is lacking." Hughes v. Patrolmen's Benevolent Association of the City of New York, Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied 488 U.S. 967 (1988) (citations omitted). "It is common ground that in our federal system of limited jurisdiction any 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 v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (internal citations omitted). Moreover, "[w]here jurisdiction is lacking, . . . dismissal is mandatory." Id.; see also Fed.R.Civ.P. 12(b)(1) and 12(h)(3).
The Second Circuit has indicated that a case should be dismissed for lack of subject matter jurisdiction "only under narrow circumstances." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996). "`[T]he test is whether the complaint on its face, without resort to extraneous matter, is so plainly insubstantial as to be devoid of any merits and thus not presenting any issue worthy of adjudication.'" Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992) (quoting Giulini v. Blessing, 654 F.2d 189, 192 (2d Cir. 1981)); see also Hagans v. Lavine, 415 U.S. 528, 536-538 (1974). Both the Supreme Court and the Second Circuit have equated insubstantiality with frivolousness. See Hagans, 415 U.S. at 537; Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) ("A non-frivolous allegation of a cause of action under federal law suffices to invoke federal court jurisdiction.").
With regard to the assertion of diversity jurisdiction, "a case falls within the federal district court's original diversity jurisdiction only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same State." Viacom Int'l, Inc. v. Kearney, 212 F.3d 721, 726 (2d Cir. 2000) (internal citation omitted). As there is not complete diversity of residence among the parties, the Court lacks subject matter jurisdiction.
Furthermore, the complaint cannot be read as stating a claim under the First Amendment or any other basis under 42 U.S.C. § 1983 that would provide federal question jurisdiction. Although styled a constitutional claim, plaintiff does not allege that the "tort" complained of establishes any of the elements of a § 1983 claim that would provide this Court with federal question jurisdiction. Claims brought under federal question jurisdiction may be dismissed if it "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction." Bell v. Hood, 327 U.S. 678, 682 (1946). The complaint herein is so "plainly insubstantial" as to warrant it's dismissal for lack of subject matter jurisdiction.
Even reading the complaint liberally, it cannot be read as raising a Constitutional question and there is no indication plaintiff could establish subject matter jurisdiction by amendment. Moreover, paying of the required fee does not insulate the complaint from sue sponte dismissal for lack of subject matter jurisdiction. Fitzgerald V. First East Seventh Street Tenants Corp., 221 F.3d 362, 363-364 (2d Cir. 2000) (District courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee.) Accordingly, as amendment could not save this complaint from dismissal for lack of subject matter jurisdiction, the complaint is dismissed.
Because summons have been issued and therefore plaintiff may have already served defendant Langston, the Clerk of the Court is also directed to send a copy of this order to Andrew Langston, 2505 East Ave., Rochester, New York 14610. Defendant Langston need not answer the complaint.
SO ORDERED.