Opinion
22-CV-7514 (LTS)
02-08-2023
PIERRE LAVI ON BEHALF OF TURBO DYNAMICS CORPORATION, Plaintiff, v. SONELGAZ GROUP OF COMPANIES, et al. Defendants.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff Pierre Lavi, who is proceeding pro se, brings this action on behalf of himself and Turbo Dynamics Corporation. By order dated September 14, 2022, the Court granted Plaintiff request to proceed in forma pauperis (IFP), that is, without prepayment of fees. For the reasons set forth in this order, the Court dismisses the action, but grants Plaintiff 30 days' leave to replead.
STANDARD OF REVIEW
The Court must dismiss an IFP 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, who resides in Huntington, New York, in Suffolk County, brings this action on behalf of himself and Turbo Dynamics Corporation. He identifies himself as the President of Turbo Dynamics and brings claims against the Sonelgaz Group of Companies; National Bank of Algeria in NY City; “OO Cit Bank” NY Office; Deutsch Bank Trust Company in NY; and two residents of Algeria - Nabil Kafi and Sabri Lezhari. (ECF 2, at 1.) Plaintiff seeks money damages.
Plaintiff submits his complaint in the form of a letter to the Court. He begins the submission with the following statement.
Plaintiff writes in all capital letters. For readability, the Court uses standard capitalization when quoting from the complaint, but all other grammar, punctuation, and spelling are as in the original.
The undersigned, Pierre Lavi President of Turbo Dyanics Corporation prose certifies that the abobe listed parties may have a pecuniary interest in the outcone of this case, these representaion are made to enable the court to evaluate possible criminal acts or misconduct of any of the aboive persons or enteties about the harm all damages sustained by undersigned and my company, Turbo Dynamig Corporation both in NY and Los Angles name the Colonial Group LLC.(Id.) Plaintiff continues with these assertions:
The above persons or their entetites are sued for at least one million or final decision of the Honorable Court.
Dollars simple because the owners of Turbo Dynamics Corporation or the Colonial Group were Jewish and did not pay bribe.
Turbo Dynamics Corporation had already been sued in Algeria by two companies as a parts of the Sonelgas Group of Companies named MEI and SPE, the amount of our losses would be at least one hundred million dollars or as decided finally by this Honorable court, a copy of this law suit is goiing to be sent to Algerien Embassy in Washington DC 2118 Kalorama Rd N.W. Washingto DC 2008 Tel No 2022652800
According to all documents even ministry of electricity and water the head of Sonatrach and Sonelgas, first fourt largest producers and sellers of oil and natural gas the second having 63000 empolyees had already been sued for bribery, based on all rule in United States none of the above entitities or banks are subject to any immunity.(Id. at 1-2.)
Plaintiff attaches to the complaint three documents addressed to “Parviz Lavi,” a name that Plaintiff uses. (Id. at 3-5.) The documents are: (1) a notice of approval from the Town of Huntington Assessor's Office of Plaintiff's application for a partial senior citizen property tax exemption; (2) a utility bill from National Grid; and (3) a final termination notice of electricity from PSEG Long Island. Plaintiff may have submitted these documents in support of his IFP application.
DISCUSSION
A. Plaintiff fails to comply with Rule 8 pleading requirements
Plaintiff's complaint does not satisfy federal pleading rules. He does not provide a short and plain statement showing that he is entitled to relief as required by Rule 8, or include any facts suggesting that any defendant violated his rights. In order to state a claim for relief, a complaint must contain enough facts to allow the Court to reasonably infer that the defendant is liable to the plaintiff. Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at 555). Plaintiff essentially asserts that Defendants unlawfully harmed him and his company, Turbo Dynamics, but the complaint contains no facts about what occurred or why Plaintiff or Turbo Dynamic is entitled to relief. Because Plaintiff does not articulate a viable legal claim, the Court dismisses the complaint for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Claims on behalf of Turbo Dynamics
Even if the Court could discern the claims Plaintiff tries to assert, the complaint suffers from other deficiencies. Plaintiff purports to bring this complaint on behalf of himself and Turbo Dynamics. However, the statute governing appearances in federal court, 28 U.S.C. § 1654, “allow[s] two types of representation: ‘that by an attorney admitted to the practice of law by a governmental regulatory body, and that by a person representing himself.'” Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (quoting Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)). A nonlawyer cannot bring suit on behalf of another entity. See United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998). While “some courts allow sole proprietorships to proceed pro se [because] a sole proprietorship has no legal existence apart from its owner,” Lattanzio, 481 F.3d at 140 (citation omitted), courts generally do not allow corporations, partnerships, associations, and other “artificial entities” to appear in court without an attorney, Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202-03 (1993).
Plaintiff does not allege that he is an attorney, and he does not allege that Turbo Dynamics is a sole proprietorship. The Court therefore dismisses without prejudice any claims that Plaintiff asserts on behalf of Turbo Dynamics and treats this action as having been brought by Plaintiff, individually.
Plaintiff has been advised in prior actions that, as a non-attorney, he cannot bring claims on behalf of corporate entities, including Turbo Dynamics. See, e.g., Lavi et al. v. DWS, No. 22-CV-7501 (LTS) (S.D.N.Y. Oct. 7, 2022) (ECF 4) (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.”).
C. Subject Matter Jurisdiction
Plaintiff brings this action alleging that Defendants caused harms but he does not specify the jurisdictional basis of this action. Even when read with the “special solicitude” due pro se pleadings, Triestman, 470 F.3d at 475, Plaintiff does not establish that the Court has subject matter jurisdiction of this action to consider any claims he may be asserting on his own behalf.
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 assert any federal claims, and a review of the limited facts set forth in the complaint do not implicate a federal cause of action. It thus appears that the Court does not have federal question jurisdiction of this matter.
Plaintiff requests that the Court evaluate “possible criminal acts or misconduct” committed by Defendants. The Court notes that Plaintiff cannot initiate the prosecution of federal charges against an individual or entity in this Court because “the decision to prosecute is solely within the discretion of the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). Plaintiff also cannot obtain an order directing prosecuting attorneys to initiate a criminal proceeding against Defendants, because prosecutors possess discretionary authority to bring criminal actions, and they are “immune from control or interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972).
2. Diversity Jurisdiction
Plaintiff does not allege facts demonstrating that the Court has diversity jurisdiction of this action either. 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). In addition, 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) (citation and internal quotation marks omitted).
Plaintiff does not plead any facts suggesting that the amount-in-controversy requirement is satisfied. There is in this Circuit “a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy.” Wolde-Meskel v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999). But where a complaint does not contain facts plausibly suggesting that the amount in controversy meets the jurisdictional minimum, the Court is not required to presume that the bare allegations in the complaint are a good faith representation of the actual amount in controversy. See Weir v. Cenlar FSB, No. 16-CV-8650, 2018 WL 3443173, at *12 (S.D.N.Y. July 17, 2018) (reasoning that “the jurisdictional amount, like any other factual allegation, ought not to receive the presumption of truth unless it is supported by facts rendering it plausible”) (citing Wood v. Maguire Auto. LLC, No. 09-CV-0640, 2011 WL 4478485, at *2 (N.D.N.Y. Sept. 26, 2011), aff'd, 508 Fed.Appx. 65 (2d Cir. 2013) (summary order)).
Here, Plaintiff seeks at least one million dollars in damages for alleged losses, but he does not allege any facts about what occurred, how the losses were incurred, or why Defendants should be held liable. Plaintiff fails to allege facts plausibly suggesting that he has suffered any damages amounting to the one million dollars he seeks from Defendants..
Plaintiff does not plead facts about the citizenship of each party. For purposes of diversity jurisdiction, a corporation is a citizen 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). “An 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. The diversity statute provides for jurisdiction of an action between citizens of different States in which subjects of a foreign state are additional parties, § 1332(a)(3), but diversity is defeated where there are aliens on both sides of the litigation. Franceskin v. Credit Suisse, 214 F.3d 253, 258 (2d Cir. 2000) (citing Int'l Shipping Co. v. Hydra Offshore, Inc., 875 F.2d 388, 391 (2d Cir. 1989)); Moreno-Godoy v. Gallet Dreyer & Berkey, LLP, No. 14-CV-7082 (PAE), 2015 WL 5737565, at *7 (S.D.N.Y. Sept. 30, 2015) (When a party is an alien for diversity purposes, “diversity i[s] . . . defeated if another alien party is present on the other side of the litigation.”).
Plaintiff names himself, both individually and as President of Turbo Dynamics, as the plaintiff in this action. Plaintiff provides an address for himself in Suffolk County, New York, but he does not indicate whether he is domiciled at the Suffolk County address. In addition, it is unclear from the allegations in the complaint whether Plaintiff has United States citizenship. If Plaintiff is an alien, he cannot sue foreign entities and citizens under the Court's diversity jurisdiction because there would be alien parties on both sides of the litigation. Franceskin, 214 F.3d at 258 (“[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. See 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); see also, One World, LLC v. Onoufriadis, No. 20 CIV. 5802 (CM), 2021 WL 184400, at *13 (S.D.N.Y. Jan. 19, 2021), aff'd, No. 21-374-CV, 2021 WL 4452070 (2d Cir. Sept. 29, 2021) (“A lawful permanent resident domiciled in a state is not a citizen of that state - he is an alien for purposes of diversity jurisdiction.”).
Further, the complaint does not provide any factual detail concerning the corporate defendants Plaintiff sues - Sonelgaz Group of Companies, National Bank of Algeria, “OO Cit Bank,” and the Deutsch Bank Trust Company - that would enable the Court to determine the entities' citizenships. Nor does the complaint provide any facts about the two individuals Plaintiff sues - Nabil Kafi and Sabri Lezhari - except that they are residents of Algeria.
Because Plaintiff does not allege facts suggesting that any claims he may be able to plead plausibly would satisfy the $75,000.00 amount in controversy or that diversity of citizenship is complete, the Court does not have diversity jurisdiction of this matter. See Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (holding that the plaintiff bears the burden of establishing subject matter jurisdiction). The Court therefore dismisses the complaint for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
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 the Court cannot say at this time that amendment would be futile, the Court, in an abundance of caution, grants Plaintiff 30 days' leave to allege any facts suggesting that he has any claims on his own behalf of which the Court has subject matter jurisdiction.
Plaintiff is granted 30 days' 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.
Plaintiff may consider contacting the New York Legal Assistance Group's (“NYLAG”) Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. A copy of the flyer with details of the clinic is attached to this order. The clinic is currently available only by telephone.
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. The Court cautions Plaintiff again, however, that he cannot pursue claims on behalf of Turbo Dynamics Corporation as a pro se litigant.
CONCLUSION
Plaintiff's complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii), and for lack of subject matter jurisdiction, see Fed.R.Civ.P. 12(h)(3). All other pending matters in this case are terminated.
Plaintiff is granted thirty days' leave to file an amended complaint stating claims on behalf of himself of which the Court has subject matter jurisdiction. If Plaintiff fails to file a sufficient amended complaint within the time allowed, the Court will enter judgment dismissing this action for the reasons stated in this order.
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 IFP 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.