Summary
holding that 28 U.S.C. § 1332 grants diversity jurisdiction "where the plaintiff and defendant reside in different states"
Summary of this case from Obunugafor v. BorchertOpinion
01-Civ. 0908 (RWS).
July 18, 2001
MEMORANDUM OPINION
Defendant New York City Board of Education (the "Board") has moved to dismiss the amended complaint of pro se plaintiff Wilbert Moore ("Moore") pursuant to Fed.R.Civ. p. 12(b)(6), for failure to state a claim upon which relief may be granted. Moore opposes the motion. For the reasons set forth below, the complaint will be dismissed for lack of subject matter jurisdiction.
Moore is a teacher employed by the Board of Education who filed this action to recover a total of $750 that has been withheld from his paychecks. The allegations in the complaint must be presumed true for this motion to dismiss, see Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993), and will be construed liberally due to Moore's pro se status, see McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999). Late in the year 2000, Moore was "terminated in error," which placed him "in dire need of immediate financial assistance." (Amended Complaint ¶ 4.) He applied for and received an emergency check from the Board of Education. In what he construes as a classic "bait and switch," (Id. ¶ 5) the Board sent him a second, unsolicited emergency check and later withheld money from his paychecks as compensation for the overpayment. However, he received only a check stub, rather than an actual check, and therefore never received any overpayment.
Moore alleges that the Board committed "Federal and State tax fraud . . ., fraudulent misrepresentation, grand larceny, and aggravated negligence" and continues to engage in a "criminal conspiracy" to withhold taxes that are not owed. (Id. ¶¶ 2, 3.) Moore seeks return of the $750 in income due to the Board's "grand larceny," plus "over $1900 in Federal and New York State taxes that were stolen" from him and continue to be "fraudulently withheld." (Id. ¶¶ 6, 8.) He claims "damages" in the sum of eight million dollars, in addition to punitive damages. (Id. ¶ 12.)
Defendants construe the action as a 42 U.S.C. § 1983 claim for violation of Moore's procedural due process rights due to his erroneous termination, and have moved to dismiss for failure to state a claim. However, Moore has replied that he does not rely on § 1983 in support of his "tax fraud" action, but specifically notes that the amended complaint invokes 28 U.S.C. § 1345 and 1346. (Pltf. Br. at 2.) These provisions, which provide for original jurisdiction in the federal courts for claims against the United States for recovery of erroneously or illegally collected taxes, see 28 U.S.C. § 1346(a)(1), are the only legal provisions cited in the amended complaint. In his brief in opposition to the motion, Moore also states that his claim is also based upon 26 U.S.C. § 7206 and 18 U.S.C. § 1001, which set forth criminal penalties for United States officials who make false or fraudulent statements, and for persons who engage in fraud pertaining to the internal revenue laws, respectively.
As courts must have jurisdiction over an action in order to review it, the existence of subject matter jurisdiction may be raised sua sponte at any time during the litigation. Moore invokes 28 U.S.C. § 1345 and 1346 as the predicate for federal jurisdiction on the grounds that "the IRS is involved" in the alleged tax fraud. (Amd. Compl. ¶. 3.) Section 1345 applies only to actions in which the United States is a plaintiff, and therefore does not apply. With regard to § 1346, Moore has named only the New York City Board of Education, not any federal office or official, as a defendant. Moreover, he has no basis for doing so under the facts alleged. The gravamen of his claim is against the Board, which withheld the taxes from his paycheck, not the Internal Revenue Service or any other federal entity. As such, § 1346 does not provide jurisdiction over this action.
The two fraud statutes Moore cites in his opposition brief are criminal statutes that do not provide federal jurisdiction over a civil lawsuit for money damages. See Cort v. Ash, 422 U.S. 66, 79-80, 95 S.Ct. 2080, 2089 (1975) (finding no jurisdiction over civil action arising from penal statute where "there was nothing more than a bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone."); Sciolino v. Marine Midland Bank-Western, 463 F. Supp. 128, 131 (W.D.N.Y. 1979) ("Violation of a penal statute does not alone support an allegation of federal question civil jurisdiction."). In sum, construing the amended complaint liberally, Moore has failed to raise any federal question justifying this Court's exercise of jurisdiction.
Diversity jurisdiction is similarly unavailable pursuant to 28 U.S.C. § 1332. This provision grants jurisdiction to the federal courts where the plaintiff and defendant reside in different states, and the amount in controversy is at least 75,000 exclusive of interest and costs. 28 U.S.C. § 1332(a), (1). Neither element of diversity jurisdiction has been met here: Moore and the defendant both reside in New York, and the facts presented fail to suggest a "reasonable probability" that damages would be in excess of $75,000, notwithstanding Moore's claim for $8 million in damages plus punitives. See Chase Manhattan Bank N.A. v. American National Bank and Trust Co., 93 F.3d 1064, 1070 (2d Cir. 1996).
In short, the complaint does not allege facts which would support this Court's exercise of original jurisdiction, federal question jurisdiction, or diversity jurisdiction. Therefore, the amended complaint is dismissed for lack of subject matter jurisdiction, and the clerk of court is directed to enter judgment accordingly.
It is so ordered.