Opinion
20 Civ. 10093 (AT) (GWG)
05-27-2021
DAWN M. JOYNER, Plaintiff, v. ALSTON &BIRD LLP, et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Dawn M. Joyner, proceeding pro se, brought this action against Alston & Bird LLP (“A&B”) alleging breach of contract. A&B has moved to dismiss the case under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. For the following reasons, the motion should be granted.
Motion to Dismiss, filed January 27, 2021 (Docket # 20) (“Def. Mot.”); Memorandum of Law in Support of Motion to Dismiss, filed January 27, 2021 (Docket # 21) (“Def. Mem.”); Declaration of James H. Sullivan, Jr. in Support of Motion to Dismiss, filed January 27, 2021 (Docket # 22) (“Sullivan Decl.”); Plaintiff's Opposition to Defendant's Motion to Dismiss, filed March 5, 2021 (Docket # 25); Memorandum of Law in Support of Plaintiff's Opposition to the Motion to Dismiss, filed March 5, 2021 (Docket # 25-1) (“Pl. Opp.”); Affidavit of Dawn Joyner in Opposition to the Motion to Dismiss, filed March 5, 2021 (Docket # 26); Reply Memorandum of Law in Support of Motion to Dismiss, filed March 16, 2021 (Docket # 27).
I. BACKGROUND
A. The Amended Complaint
For purposes of this motion, we assume that the allegations in Joyner's amended complaint are true.
Joyner was employed by A&B “as a Legal Secretary / Legal Administrative Assistant, ” Amended Complaint, filed January 7, 2021 (Docket # 14) ¶ 13 (“Am. Comp.”), “from November 12, 2007 through July 4, 2019, ” Id. ¶ 18. “Upon the request of Alston & Bird, [Joyner] filled out a Form W-4 on November 12, 2007.” Id. ¶ 19. However, A&B failed “to fully disclose the voluntary nature of Form W4 [which] compelled [Joyner] to enter into a contract with the Internal Revenue Service (“IRS”) without [Joyner]'s voluntary consent or authorization with no legal or lawful basis or authorization.” Id. ¶ 20. At some point, Joyner “submitted a signed written request to terminate [the] Form W-4, ” however A&B “failed to cease and desist withholding [Joyner]'s pay.” Id. ¶ 21. A&B also “threatened [Joyner]'s employment for her pursuit to manage her private affairs.” Id. ¶ 22. “[D]ue to Alston & Bird's arbitrary interference in the management of her private affairs, ” Joyner was “forced to resign on June 24, 2019.” Id. ¶ 23.
Joyner alleges A&B breached her employment contract “when it failed to honor its contractual obligation to [her], i.e., to pay [Joyner] a specified amount annually, ” id. ¶ 25; when it “shared [Joyner]'s private information . . . with the IRS without [Joyner]'s voluntary consent or authorization with no legal or lawful basis or authorization, ” id. ¶ 26; and when it “facilitated arbitrary interference by the IRS without [Joyner]'s voluntary consent or authorization with no legal or lawful basis or authorization, ” id. ¶ 27.
B. Procedural History
On December 2, 2020, Joyner filed the original complaint in this action naming A&B and four individuals as defendants. (See Docket # 1). That complaint brought a claim under 5 U.S.C. § 552a and revolved primarily around A&B's withholding of taxes from Joyner's salary. Id. ¶¶ 1, 54-81. It asserted subject matter jurisdiction under 28 U.S.C. § 1331. See id. ¶¶ 1-2. The original defendants filed a motion to dismiss on December 28, 2020. (Docket # 9).
In response to that motion, Joyner filed an amended complaint on January 7, 2021, omitting the individual defendants as well as her claim under 5 U.S.C. § 552a, see Am. Comp. ¶¶ 1-5. Instead, the amended complaint contains a single breach of contract claim against A&B, see id. ¶ 6, and invokes diversity jurisdiction “pursuant to 28 U.S.C. § 1332 as [Joyner] and [A&B] are citizens of different states, ” id. ¶ 8. Joyner asserts that she is “a resident of the State of New York, ” id. ¶ 13, and A&B “is a Georgia Limited Liability Partnership, with its principal place of business” in Atlanta, Georgia and “doing business in the State of New York, ” id. ¶ 14.
Joyner also filed a “motion for mandatory judicial notice” on the same day she filed her amended complaint, in which she seeks to have the Court take judicial notice of certain “legal definitions, Federal codes and regulations and Plaintiff's Affidavit of Truth.” (Docket # 15 at 5).
A&B filed the instant motion to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. See Def. Mot. A&B also argues Joyner's motion for judicial notice is improper. See Def. Mem. at 7-8. Because we find the court lacks subject matter jurisdiction over this matter, we need not address A&B's alternative grounds for dismissal or Joyner's motion for judicial notice.
II. STANDARD OF REVIEW UNDER FED. R. CIV. P. 12(B)(1)
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). A case must be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) “when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed.R.Civ.P. 12(b)(1)). The plaintiff carries “the burden of proving by a preponderance of the evidence that [jurisdiction] exists.” Id. When deciding a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction based exclusively on the face of the complaint, “the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citation omitted). “However, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Shulman v. Chaitman LLP, 392 F.Supp.3d 340, 350 (S.D.N.Y. 2019) (punctuation omitted). When jurisdictional facts are disputed, “the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.” APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (punctuation omitted) (quoting LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999)).
“Where, as here, the defendant moves for dismissal under Rule 12(b)(1), as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (citation and punctuation omitted).
Pro se plaintiff filings are liberally construed, and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (punctuation omitted); accord Littlejohn v. City of N.Y., 795 F.3d 297, 322 (2d Cir. 2015); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (review of pro se complaint for sufficiency requires “special solicitude, interpreting the complaint to raise the strongest claims that it suggests”) (punctuation omitted). However, “pro se litigants still must establish subject matter jurisdiction to proceed in federal court.” Harrison v. New York, 95 F.Supp.3d 293, 311 (E.D.N.Y. 2015); accord Torres v. Blackstone Grp., 2019 WL 4194496, at *2 (S.D.N.Y. Sept. 3, 2019) (“Notwithstanding the liberal pleading standards afforded pro se litigants, federal courts are courts of limited jurisdiction and may not preside over cases if they lack subject matter jurisdiction.”) (punctuation omitted), aff'd, 836 Fed.Appx. 49 (2d Cir. 2020).
III. DISCUSSION
A. Diversity Jurisdiction
A&B argues the court lacks subject matter jurisdiction “because diversity jurisdiction is insufficiently pled, and complete diversity of citizenship between the parties is lacking.” Def. Mem. at 3.
“Diversity jurisdiction exists over ‘civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States.'” Hallingby v. Hallingby, 574 F.3d 51, 56 (2d Cir. 2009) (punctuation omitted) (quoting 28 U.S.C. § 1332(a)(1)). “[Diversity of citizenship among the parties is complete” where “no plaintiff and no defendant . . . are citizens of the same State.” Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). “Generally, an individual's citizenship, within the meaning of the diversity statute, is determined by his domicile.” Tagger v. Strauss Grp. Ltd., 951 F.3d 124, 126 (2d Cir. 2020), cert. denied, 141 S.Ct. 1073 (2021), reh'g denied, 141 S.Ct. 1530 (2021). “A limited liability partnership has the citizenship of each of its general and limited partners for the purposes of diversity jurisdiction.” Brady v. IGS Realty Co. L.P., 2020 WL 5414683, at *10 (S.D.N.Y. Sept. 8, 2020) (citing Carden v. Arkoma Assocs., 494 U.S. 185, 195 96 (1990)); accord Handelsman v. Bedford Village Associates Ltd. P'ship, 213 F.3d 48, 52 (2d Cir. 2000).
It is undisputed that Joyner is a citizen of New York. See Am. Comp. ¶ 13. A&B is a limited liability partnership and therefore has “the citizenship of each of its general and limited partners.” Brady, 2020 WL 5414683, at *10. In the amended complaint, Joyner asserts that A&B “is a Georgia Limited Liability Partnership, with its principal place of business” in Georgia and is “doing business in the State of New York, ” Am. Comp. ¶ 14, but fails to allege the citizenship of any of the partners of A&B. Joyner has therefore failed to adequately plead diversity jurisdiction. See Brady, 2020 WL 5414683, at *10 (plaintiff did “not me[e]t his burden of adequately pleading diversity jurisdiction” where he failed to provide “the citizenship of the members of [defendant], a limited liability partnership”).
While the Court would have to find that there is no diversity jurisdiction for this reason alone, see DeVito Verdi, Inc. v. Legal Sea Foods, Inc., 2021 WL 1600088, at *2 (S.D.N.Y. Apr. 23, 2021) (dismissing the complaint where “Plaintiff fail[ed] to allege the citizenship of the members of” defendant LLC) (collecting cases), A&B has submitted evidence on the issue, showing that it has 37 partners who “are residents/citizens of New York State, ” Sullivan Decl. ¶¶ 3-4. Accordingly, there is no question that A&B is a citizen of New York for purposes of diversity jurisdiction.
In light of this fact, there is not complete diversity and the court lacks subject matter jurisdiction under 28 U.S.C. § 1332. See Schacht, 524 U.S. at 389 (“The presence of the nondiverse party automatically destroys original jurisdiction”).
B. Federal Question Jurisdiction
Instead of arguing in favor of diversity jurisdiction, Joyner's opposition asserts that the court has subject matter jurisdiction pursuant to the federal question jurisdiction statute, 28 U.S.C. § 1331. See Pl. Opp. at 3-9. She raises several federal statutes and regulations, arguing A&B has violated a number of them. See id. at 6-8. She argues that the complete preemption doctrine gives the court federal question jurisdiction, see id. at 9, and that there is an issue of federal law in this case, see id. at 8-9.
28 U.S.C. § 1331 instructs that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” “Most directly, a case arises under federal law when federal law creates the cause of action asserted.” Gunn v. Minton, 568 U.S. 251, 257 (2013).
Joyner asserts subject matter jurisdiction under 28 U.S.C. § 1332 in her amended complaint with no mention of federal question jurisdiction. See Am. Comp. ¶¶ 7-8. In fact, Joyner was quite clear that she was only bringing “the singular Cause of Action of BREACH OF CONTRACT against Alston & Bird” in her amended complaint. Id. ¶ 6. There is no federal breach of contract statute. Thus, Joyner's claim necessarily arises under state law.
The “well-pleaded complaint rule” instructs “that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (punctuation omitted). Here, Joyner is “the master of the claim, ” id., and therefore had the ability to make allegations showing federal question jurisdiction in her amended complaint. Instead, Joyner brought only a state law claim. None of the arguments or new allegations in Joyner's opposition brief change this critical fact.
Joyner cites to Grable & Sons Metal Prods., Inc. v. Darue Engineering & Mfg., 545 U.S. 308 (2005), as supporting jurisdiction. See Pl. Opp. at 9. Grable allowed removal of a state law action that raised a disputed issue of federal title law based on a doctrine holding that “federal-question jurisdiction will lie over state-law claims that implicate significant federal issues.” 545 U.S. at 312. In Gunn, the Supreme Court summarized the doctrine relied on in Grable as follows: “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S. at 258. Here, while Joyner's complaint alleges that A&B somehow misused the W-4 withholding process (and her brief lists a number of federal regulations and statutes relating to the tax collection process) we cannot characterize their application to Joyner's amended complaint as being “substantial.” See Grable, 545 U.S. at 314-15 (applying the doctrine where the meaning of a federal statute “appears to be the only legal or factual issue contested in the case”). The gravamen of Joyner's complaint is not any violation of federal tax law but rather whether A&B breached its contract with Joyner, see Am. Comp. ¶¶ 25-27. As was made clear in Gunn, the “substantial” inquiry does not focus on the interests of the litigants in the federal issue, but rather on its “broader significance . . . for the Federal Government.” 568 U.S. at 260. The federal government has no special interest in having a federal court decide whatever issues relating to W-4 withholding arise in Joyner's suit and a state court hearing her suit “can be expected to hew closely to the pertinent federal precedents, ” id. at 262. We also question whether it would be appropriate for a federal court to hear this pure breach of contract claim under the fourth element of Gunn in light of the fact that breach of contract actions are routinely heard by state courts, who have a strong interest in deciding claims arising under state law. In the end, this case is not one of the “extremely rare exceptions” to the rule that a case arises under federal law only where federal law “creates the cause of action asserted.” Gunn, 568 U.S. at 257.
Joyner's attempt to establish federal question jurisdiction under the complete preemption doctrine, Pl. Opp. at 9, must also fail. “Under [the] so-called ‘complete preemption doctrine,' a plaintiff's state cause of action may be recast as a federal claim for relief, making its removal by the defendant proper on the basis of federal question jurisdiction.” Vaden v. Discover Bank, 556 U.S. 49, 61 (2009) (punctuation omitted). This doctrine is used to establish federal question jurisdiction where the defendant has removed a case in which the plaintiff has only pled state law causes of action. See id. No removal is involved here so the doctrine does not apply. See Albradco, Inc. v. Bevona, 788 F.Supp. 786, 790-91 (S.D.N.Y. 1992) (refusing to apply complete preemption doctrine where no removal had occurred), aff'd, 982 F.2d 82 (2d Cir. 1992).
IV. CONCLUSION
For the foregoing reasons, A&B's motion to dismiss for lack of subject matter jurisdiction (Docket # 20) should be granted.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Torres. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).