Opinion
06-CV-1142 (NG).
April 17, 2006
MEMORANDUM AND ORDER
Plaintiff, appearing pro se, filed the instant action on March 8, 2006 against defendant, alleging that her mother died in November 17, 2005 from complications due to her smoking of cigarettes produced by defendant. Compl. ¶ III. Plaintiff alleges that her mother suffered from "Hypertension, Asthma, COPD, Emphysema, Chronic coughing, Bronchitis, Breathlessness," and that "[a]ll of these were caused by the cigarettes." Id. Plaintiff requests $500,000,000 in damages. Id. ¶ IV. The Court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). For the reasons set forth below, plaintiff is directed to show cause by written affirmation within thirty (30) days of the date of this Order why the instant complaint should not be dismissed for lack of subject matter jurisdiction.
DISCUSSION
A. Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that the action is: "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." An action is "frivolous" when either: (1) "the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy;" or (2) "the claim is based on an indisputably meritless legal theory."Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal quotations omitted).
In addition, as plaintiff is proceeding pro se, this Court is obliged to construe her pleadings liberally. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Thus, this Court must interpret plaintiff's pleadings as raising the strongest arguments they suggest. Id. However, a plaintiff seeking to bring a lawsuit in federal court must establish that the court has subject matter jurisdiction over the action. See, e.g., Rene v. Citibank NA, 32 F. Supp. 2d 539, 541-42 (E.D.N.Y. 1999) (dismissing pro se complaint for lack of subject matter jurisdiction).
B. Subject Matter Jurisdiction
The subject matter jurisdiction of the federal courts is limited. Federal jurisdiction is available only when a "federal question" is presented ( 28 U.S.C. § 1331), or plaintiff and defendant are of diverse citizenship and the amount in controversy exceeds $75,000 ( 28 U.S.C. § 1332). "[I]n 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, Local 919, AFL-CIO v. CenterMark Props. Meriden Square, 30 F.3d 298 (2d Cir. 1994) (quotingManway Constr. Co. v. Housing Auth. of City of Hartford, 711 F. 2d 501, 503 (2d Cir. 1983)). Moreover, "[w]here jurisdiction is lacking . . . dismissal is mandatory." Id.; see Fed.R.Civ.P. 12(h)(3).
Plaintiff invokes this Court's jurisdiction pursuant to "21 USC TITLE 21 — FOOD AND DRUGS." Compl. ¶ II. Plaintiff is referring to the Food, Drug and Cosmetic Act ("FDCA"), 21 U.S.C.A. § 1, et seq. However, no private right of action exists under the FDCA. See EON Labs Mfg., Inc. v. Watson Pharm., Inc., 164 F. Supp. 2d 350, 361 n. 14 (S.D.N.Y. 2001). In any event, the Supreme Court has held that tobacco products are beyond the scope of the FDCA. Food Drug Admin. v. Brown Williamson Tobacco Corp., 529 U.S. 120, 159-61 (2000) (Supreme Court would not defer to Food and Drug Administration's ("FDA'"s) construction of FDCA as giving FDA jurisdiction over tobacco products, where Congress had created a distinct regulatory scheme for tobacco products, squarely rejected proposals to give FDA jurisdiction over tobacco, and repeatedly acted to preclude any agency from exercising significant policymaking authority in the area). Accordingly, federal question jurisdiction is lacking in the instant complaint.
In the complaint's caption, plaintiff names Philip Morris International, located in Lausanne, Switzerland, as defendant; however, in the body of her complaint, plaintiff states that the defendant is Philip Morris USA, located in Richmond, Virginia. Nevertheless, as plaintiff resides in New York, complete diversity of citizenship exists. While plaintiff requests $500,000,000 for "the emotional trauma cause[d] by [her] mother's death," Compl. ¶ IV, she does not state the legal basis for recovering this amount from defendant. Plaintiff may be pursuing a state law wrongful death action against defendant; however, New York law stipulates that only the executrix of a decedent's estate may bring a wrongful death suit. Estates, Powers and Trusts Law ("EPTL") § 5-4.1 (McKinney's 1999); see Thomas v. Mitchell-Bradford Chem. Co., a Div. of Messing Corp., 582 F. Supp. 1373, 1375 (E.D.N.Y. 1984) (executrix of decedent's estate, not his daughter, the plaintiff, was the only person who could bring wrongful death suit). Accordingly, if plaintiff is not the administrator of her mother's estate, she is barred from pursuing a wrongful death claim.
Therefore, the instant complaint, as it stands, does not provide a basis for jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332.
C. Pro Se Status
Even if plaintiff were the administrator or executrix of her mother's estate, she may be barred from proceeding pro se in a wrongful death action. The right to proceed pro se in civil actions in federal courts is guaranteed by 28 U.S.C. § 1654, which provides: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct cases therein." Pursuant to this statute, a "litigant in federal court has a right to act as his or her own counsel." Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (citations omitted).
Although this right to self-representation is broad and has deep historical roots, see discussion in Iannaccone v. Law, 142 F.3d 553, 556-58 (2d Cir. 1998), it is qualified by the rule that "a person may not appear on another person's behalf in the other's cause." Id. at 558. This qualification is significant in the context of litigation involving a decedent, and the Second Circuit has held that "an administrat[or] or executrix of an estate may not proceed pro se when the estate has beneficiaries or creditors other than the litigant." Pridgen, 113 F.3d at 393. The Second Circuit reasoned that "when an estate has beneficiaries or creditors other than the administrat[or] or executrix, the action cannot be described as the litigant's own, because the personal interests of the estate, other survivors, and possible creditors will be affected by the outcome of the proceedings." Id. (internal quotation omitted).
Therefore, in addition to establishing that she is the "personal representative, duly appointed in this state or any other jurisdiction, of [her mother]," EPTL § 5-4.1, plaintiff must establish that her mother's estate has no other beneficiaries or creditors, if she wishes to proceed pro se in a wrongful death action against defendant.
D. Venue
Furthermore, plaintiff does not set forth in her complaint why venue is proper in the Eastern District. Plaintiff's mother lived in Brooklyn prior to her death, see Compl., Ex. 1; however, plaintiff resides in New York County, located in the Southern District. Plaintiff may have filed her complaint in this district in order to join a class action suit filed in this Court on September 6, 2000 by individual and representative plaintiffs against defendant manufacturers and advertisers of cigarettes.See In re Simon II Litigation, No. 00-CV-5332 (JBW) (E.D.N.Y.). However, that class action was dismissed in favor of defendants by order dated February 6, 2006. Id., slip op. at 5 (E.D.N.Y. Feb. 6, 2006). In any event, in addition to the jurisdictional defects in her complaint, plaintiff fails to establish that venue is proper in this district.
CONCLUSION
Nevertheless, plaintiff is afforded an opportunity to establish that this Court has jurisdiction over her complaint. Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999). Plaintiff is hereby directed to show cause, by written affirmation, within thirty (30) days of the date of this order why the Court should not dismiss her complaint for lack of subject matter jurisdiction. As described above, if plaintiff wishes to pursue a wrongful death action pro se against defendant, she must establish that (1) she is the administrator of her mother's estate and (2) the estate has no other beneficiaries or creditors. In addition, plaintiff must establish that venue is proper in the Eastern District.
No summons shall issue at this time and all further proceedings shall be stayed for thirty (30) days or until plaintiff has complied with this Order. If plaintiff fails to show cause within the time allotted, plaintiff's complaint shall be dismissed for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal.Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.