Opinion
04 Civ. 9776 (RMB)(HBP).
June 28, 2006
DECISION ORDER
I. Background
On or about July 28, 2005, pro se plaintiffs Ronny Simon and Robert Simon ("Plaintiffs") filed an "Amended First and Ninth Amendment Complaint" ("Complaint") against Greenpoint Bank, N.A. ("Greenpoint"), Rossrock LLC ("Rossrock"), and the New York City Department of Environmental Protection ("DEP") (collectively, "Defendants") alleging, among other things, that Greenpoint tortiously interfered with a contract between Plaintiffs and the DEP, that Greenpoint misappropriated the property of Plaintiffs, that Greenpoint breached a contract between Plaintiffs and Greenpoint, and that the DEP breached a contract between Plaintiffs and the DEP. (Complaint at 4-8.)
Though Rossrock is named as a defendant it does not appear that the allegations in the Complaint relate to Rossrock.
On or about August 25, 2005, Defendants filed an Answer to Complaint ("Answer") denying Plaintiffs' allegations. On or about October 31, 2005, Defendants filed a Joint Motion to Dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") ("Defendants' Motion"), along with a Memorandum of Law in Support of their Joint Motion to Dismiss ("Def. Mem."), arguing that this Court lacks subject matter jurisdiction because "Plaintiffs' purported claims do not arise under the Constitution, Treaties, or laws of the United States [as] the Plaintiffs only allege breach of contract and/or tortious interference with a contract as the purported causes of action against the Defendants." (Defendants' Motion at 5.) Defendants argue further that "there is no showing of diversity whatsoever inasmuch as all parties are located within New York State." (Defendants' Motion at 5.)
On or about December 6, 2005, the Court ordered that Plaintiffs' opposition to Defendants' Motion, if any, be submitted by January 3, 2006. (Order dated December 6, 2006 ("Order").) The Order specified that "if Plaintiff does not respond to Defendants' joint motion to dismiss, the Court will decide the motion based on Plaintiff's complaint, Defendants' submissions, and applicable law which may result in dismissal of the case." (Order at 1.) To date, the Court has not received any opposition to the Defendants' Motion.
For the following reasons, Defendants' motion to dismiss is granted.
II. Standard of Review
When considering a motion to dismiss, the court "must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). However, "[d]ismissal for failure to state a claim is proper where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Smith v. Local 819 I.B.T. Pension Plan, 219 F.3d 236, 240 (2d Cir. 2002).
Rule 12(h)(3) of the Federal Rules of Civil Procedure requires that "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3). "Without a plaintiff's satisfaction and demonstration of the requirements of Article III standing, a federal court has no subject matter jurisdiction to hear the merits of a plaintiff's . . . claim." Cent. States Se. Sw. Areas Health Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005).
Where, as here, the plaintiff is proceeding pro se, "leniency is generally accorded." See Bey v. Human Res. Admin., No. 97 Civ. 6616, 1999 WL 31122, at *2 (E.D.N.Y. January 12, 1999).
III. Analysis
The Court treats the following allegations in the Complaint as true for the purposes of this motion. See, e.g., Eastchester Rehab. Health Care Ctr., L.L.C. v. Eastchester Health Care Ctr. L.L.C., No. 03 Civ. 7786, 2005 WL 887154, at *2 (S.D.N.Y. April 15, 2005) (citing Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999).
On or about February 28, 2003 and April 30, 2003, respectively, Plaintiff Ronny Simon entered into two payment agreements (the "Agreements") with the DEP regarding the payment of past-due water and sewer taxes in the total amount of $41,593.75. (Complaint at 5.) Plaintiffs allege that the terms of the Agreements specified that the water tax liens created by the Agreements were non-transferable. (Complaint at 5.) Plaintiffs argue that "even though [Greenpoint] had knowledge of the contract[s] between plaintiff and [the DEP]," Greenpoint persuaded the DEP to break the Agreements with Ronny Simon and to assign Ronny Simon's debt to Greenpoint. (Complaint at 5.) The amount due to the DEP under the water tax lien was added to a pre-existing mortgage payment owed by Ronny Simon to Greenpoint. (Complaint at 6.) Plaintiffs allege further that these actions by Greenpoint are "outside its Banking Nation Charter, and in violation of Plaintiff Ronny Simon['s] Property interest. . . ." (Complaint at 6.) Plaintiffs seek "damage[s] for the sum of Ten Million Dollars with cost, for the about [sic] mention facts herein, and for such other and further relief as to this court may seem [sic] just and proper." (Complaint at 9.)
Plaintiffs' Complaint states that, among other things, "[t]his Court has exclusive and original Jurisdiction under . . . [the] First, Fifth, Ninth, Tenth, and Fourteenth Amendment to the Unite State Constitution [sic] [and] title 28 U.S.C. Section 1331, 1332, 1335, 1397, 2361. . . ." (Complaint at 1-2.) Defendants counter that "this action should be dismissed by this Court, as there is no federal question presented by the Plaintiff." (Def. Mem. at 6.)
Although Plaintiffs include a list of federal statutes in the Complaint, the Complaint does not appear to the Court to present a federal question under the "Constitution, laws, or treaties of the United States." See Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 137 (2d Cir. 2002) (citations omitted). Rather, the Complaint asserts what appear to be state law claims of breach of contract and tortious interference with contract. See Empire Healthchoice Assurance v. McVeigh, 396 F.3d 136, 140 (2d Cir. 2005).
In addition, the Complaint does not present diversity jurisdiction under 28 U.S.C. § 1332. Plaintiffs Ronny and Robert Simon are both citizens of New York. (Complaint at 3-4.) Likewise, "all the Defendants' principal place of business is New York State and therefore all defendants are considered citizens of the state of New York." (Def. Mem. at 7.) See 28 U.S.C. § 1332(c)(1) ("a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business."); see also Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 n. 2 (2d Cir. 1998). "It is a long-settled rule that in order to invoke diversity jurisdiction, the petitioner must show `complete diversity' — that is, that it does not share citizenship with any defendant." Doctor's Assoc., Inc. v. Distajo, 66 F.3d 438, 445 (2d Cir. 1995) (citations omitted).
Because "a federal court may not hypothesize subject-matter jurisdiction" the Court declines to review the merits of Plaintiffs' claims. Batista v. U.S.I.N.S., No. 99 Civ. 2847, 2000 WL 204535, at *2 (S.D.N.Y. February 22, 2000). Plaintiffs should press their claims in state court.
IV. Conclusion and Order
For the reasons stated, Defendants' Joint Motion to Dismiss the Plaintiffs' Amended First and Ninth Amendment Complaint is granted.