Opinion
22-CV-5415 (LTS)
11-04-2022
USA ex rel JASON CALDERON, Plaintiff, v. BANK OF AMERICA, Defendant.
ORDER
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff Jason Calderon, who is appearing pro se, brings this action on behalf of the United States of America. He invokes the court's federal question jurisdiction, alleging that Defendant Bank of America interfered with his banking and loan accounts. Plaintiff, who resides in the Bronx, New York, asserts that the alleged conduct occurred online, but he does not affirmatively state where he was located when he accessed his account. As discussed below, Bank of America maintains its principal place of business in Charlotte, North Carolina.
By order dated June 29, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court orders Plaintiff, within 30 days of the date of this order, to show cause why this action should not be transferred to the United States District Court for the Western District of North Carolina.
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.
DISCUSSION
A. Claims Brought on Behalf of the United States
Plaintiff seeks to bring claims on behalf the United States, something he cannot do proceeding pro se. Generally, claims brought on behalf of the United States are brought under the False Claims Act (“FCA”). The FCA imposes civil liability on a company that defrauds the federal government. 31 U.S.C. § 3729(a). The federal government, or a private person (known as a “relator”), may bring suit for the United States in a qui tam action. 31 U.S.C. § 3730(a), (b)(1); see United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 932 (2009).
In qui tam actions under the FCA, “relators have standing to sue not as agents of the United States, but as partial-assignees of the United States' claim to recovery.” United States ex rel. Eisenstein v. City of New York, 540 F.3d 94, 101 (2d Cir. 2008) (citing Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 773-74 (2000)). The United States “remains the real party in interest.” United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008) (internal quotation marks and citation omitted). Although a qui tam action is litigated by the relator, it “is not the relator's ‘own' case as required by 28 U.S.C. § 1654, nor one in which he has ‘an interest personal to him.'” Id. (quoting Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)).
In order to proceed pro se, “[a] person must be litigating an interest personal to him.” Iannaccone, 142 F.3d at 558; see § 1654. Because a litigant can proceed pro se only when bringing his own case, and because a qui tam action under the FCA is brought for and in the name of the United States, which remains the real party in interest, a relator cannot pursue such an action pro se. See Flaherty, 540 F.3d at 93 (“Because relators lack a personal interest in False Claims Act qui tam actions, we conclude that they are not entitled to proceed pro se.” (citing § 1654 and Iannaccone, 142 F.3d at 558)).
Accordingly, because Plaintiff cannot proceed pro se on behalf of another, the Court dismisses the claims he seeks to bring on behalf of the United States.
B. Bank of America Is Not Subject to Personal Jurisdiction in This Action
In order for this Court to consider any claims Plaintiff seeks to bring on his own behalf against Bank of America, Bank of America must be subject to personal jurisdiction in the Southern District of New York. As explained below, the complaint suggests that in this action, Bank of America, a North Carolina corporation, see Bruin v. Bank of America, No. 21-CV-2272 (ALC), 2022 WL 992629, *4 (S.D.N.Y. Mar. 31, 2022) (noting that Bank of America is a North Carolina resident), is not subject to personal jurisdiction in this court.
A plaintiff bears the burden of establishing personal jurisdiction over the defendant and must make a prima facie showing that such jurisdiction exists. See Jonas v. Estate of Leven, 116 F.Supp.3d 314, 323 (S.D.N.Y. July 27, 2015) (citing Penguin Grp. (USA) Inc. v. Buddha, 609 F.3d 30, 34-35 (2d Cir. 2010)). “Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” Walden v. Fiore, 571 U.S. 277, 283 (2014) (quoting Daimler AG v. Bauman, 571 U.S. 117, 125 (2014)). The Court therefore must look to New York State law to evaluate whether Bank of America is subject to jurisdiction in this court as to this action. In New York, two statutes govern personal jurisdiction: New York Civil Practice Law & Rules (“C.P.L.R.”) Section 301 (“general jurisdiction”), and C.P.L.R. Section 302 (“specific jurisdiction”).
1. C.P.L.R. Section 301 - General Jurisdiction
Under Section 301, “New York courts may exercise general jurisdiction over a foreign corporation where that corporation is engaged in such a continuous and systematic course of doing business here . . . as to warrant a finding of its presence in this jurisdiction.” JW Oilfield Equip., LLC v. Commerzbank, AG, 764 F.Supp. 2d 587, 592-93 (S.D.N.Y. 2011) (quoting Simonson v. Int'l Bank, 14 N.Y.2d 281, 285 (1965) (internal quotation marks and citation omitted). “[A] corporation is doing business and is therefore present in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York not occasionally or casually, but with a fair measure of permanence and continuity.” Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000) (internal quotations and citations omitted).
A foreign corporation refers to any out-of-state corporation, such as Bank of America, which is a North Carolina corporation.
Generally, “[a]side from the truly exceptional circumstances, a corporation is at home and subject to general [personal] jurisdiction only in its place of incorporation or principal place of business.” SPV Osus Ltd. v. UBS AG, 882 F.3d 333, 343 (2d Cir. 2018) (internal quotation marks omitted).
2. C.P.L.R. Section 302 - Specific Jurisdiction
Where a plaintiff brings suit against a foreign corporation, arguing that the corporation is subject to personal jurisdiction under Section 302, “two conditions [must be] met: first, the foreign corporation must “transact business” within the state; second, the claim against the foreign corporation must arise out of that business activity.” CutCo Indus., Inc. v. Naughton, 806 F.2d. 361, 365 (2d Cir. 1986) (citing McGowan v. Smith, 52 N.Y.2d 268, 272 (1981) (an “articulable nexus between the business transacted and the cause of action sued upon” is essential)).
In the specific jurisdiction context, courts first consider the “totality of the defendant's activities within the forum [state] to determine whether a defendant has transacted business in such a way that it constitutes purposeful activity.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) (internal citations and quotation marks omitted). Then a court must consider whether “there is an articulable nexus, or a substantial relationship, between the claim asserted and the actions that occurred in New York.” Id. (internal citation and quotation marks omitted).
3. Bank of America is Not Subject To Personal Jurisdiction in This Action
Plaintiff fails to allege any facts suggesting that Bank of America is subject to personal jurisdiction in this District under either the general or specific jurisdiction statutes. General jurisdiction is lacking under Section 301 because Plaintiff fails to allege that Defendant engaged in any continuous and systematic course of business, or any exceptional circumstances, that would warrant a finding of it being present in this District. Because Bank of America cannot be subject to personal jurisdiction solely on the basis of its presence in this district, see SPV Osus Ltd., 882 F.3d at 343, personal jurisdiction under Section 301 is lacking.
As for specific jurisdiction, Plaintiff does not allege any facts suggesting that Bank of America transacted business in this District, that would constitute “purposeful activity,” and that there is a “substantial relationship” between that activity and his claim. Best Van Lines, Inc., 490 F.3d at 246. Instead, Plaintiff alleges that he merely accessed his account online and did not, for example, engage in any conduct with a Bank of America financial center. Accordingly, Bank of America is not subject to personal jurisdiction in this District.
C. The District of North Carolina Appears to Be a Proper Venue for This Action
A district court may “transfer venue even if it lacks personal jurisdiction over the defendants.” Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 112 (2d Cir. 2001).
Under 28 U.S.C. § 1391(b), a civil action may be brought in
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
Under Section 1391(c)(2), an “entity with the capacity to sue and be sued” resides in any judicial district where it is subject to personal jurisdiction with respect to the civil action in question. Defendant Bank of America maintains its principal place of business in Charlotte, North Carolina, which is located in Mecklenburg County. Accordingly, Bank of America resides in Mecklenburg County, which is located in the Western District of North Carolina. See 28 U.S.C. § 113(c). Thus, under Section 1391(b)(1), venue for this action is proper in that district.
The Court concludes that this action should be transferred to the Western District of North Carolina, and notifies Plaintiff that the action will be transferred within 30 days of the date of this order, unless Plaintiff files a declaration showing cause why the action should not be transferred.
CONCLUSION
The Court orders Plaintiff to show cause by declaration why this action should not be transferred to the United States District Court for the Western District of North Carolina. Plaintiff shall have 30 days to submit his declaration. If Plaintiff fails to comply within the time allowed, the Court will transfer this action to the Western District of North Carolina.
A declaration form is attached to this order. No summons will issue at this time.
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.