Opinion
21-CV-3503 (LTS)
05-17-2021
ERIC WYNN, Plaintiff, v. REGUS MANAGEMENT GROUP LLC; TUCKER ALBIN & ASSOCIATES; DAVID SANDERS, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:
Plaintiff, appearing pro se, brings this action under the Court's diversity jurisdiction. By order dated April 26, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis 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. 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.
The Supreme Court has held that under Rule 8, a complaint must 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.
Moreover, the exact degree of solicitude that should be afforded to a pro se litigant in any given case depends upon a variety of factors, including the procedural context and relevant characteristics of the particular litigant. Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010). A frequent pro se litigant may be charged with knowledge of particular legal requirements. See Sledge v. Kooi, 564 F.3d 105, 109-110 (2d Cir. 2009) (discussing circumstances where frequent pro se litigant may be charged with knowledge of particular legal requirements).
BACKGROUND
Named as defendants in this complaint are Regus Management Group LLC; Tucker Albin & Associates; and David Sanders. The complaint, which is barely legible, alleges the following facts. The payments Plaintiff sends to Regus in Maryland for an unspecified service “keep [getting] return[ed].” (ECF 2 ¶ III.) Plaintiff contacted his bank, and he was told that Regus was not cashing his checks. Plaintiff's “agreement” with Regus was for $67.00 per month, but that cost “went up” to a “surprisey” [sic] $215.00. But even when Plaintiff sent payment in the amounts of “$210, $209, $211, ” the checks were still returned to him uncashed. Plaintiff may be asserting that his bank levied fees against him. (Id.) Plaintiff contacted Regus and asked for a copy of their agreement, and he also asked to cancel his “services.” Plaintiff was told that a copy of the agreement would be mailed to him, but he never received it. On April 9, 2021, David Sanders, of Tucker Albin & Associates (Tucker) contacted Plaintiff and said that, “of course if there is no money in the account then the check will bounce, ” thus “mak[ing] it sound like [Plaintiff] is bouncing checks across state lines.” (Id.)
Plaintiff provides a California address for Regus and asserts that Regus is “a nationwide company registered in many states within the United States of America so they are registered to operate within these states.” (Id. at 3.) Plaintiff provides a Texas address for Tucker. Attached to Plaintiff's complaint are approximately 275 pages of articles and court decisions involving Regus and Tucker, including one about a case from the Eastern District of New York, and emails containing negative consumer comments about Regus and Tucker. Among the attachments are emails between Plaintiff and Sanders. Those and other attachments indicate that Regus leases commercial real estate, and that Tucker engages in debt collection. (Id. at 2-2 at 2-16.)
Plaintiff purports to seek relief similar to that granted in Steffens v. Regus Group, No. 08-CV-1494. Attached to the complaint is a 2011 decision from the Central District of California. According to that decision, Steffens successfully sued Regus for employment discrimination. (ECF 2-5 at 2-77). Plaintiff also seeks to have David Sanders disbarred for making negative statements about Plaintiff's character and Plaintiff's company, Green-Jay Ltd. (Id. ¶ I V .)
After Plaintiff filed his complaint, he submitted a letter with one page of allegations and an attached decision from the same Eastern District case referenced in an attachment to the complaint. (ECF 5 at 2-16.)
DISCUSSION
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. “‘[I]t is common ground that in 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 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)); see Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); 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 . . . .”).
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).
A. Diversity Jurisdiction
Plaintiff purports to assert claims under the Court's diversity jurisdiction, but he does not allege facts demonstrating that the Court has diversity jurisdiction over this action. 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).
Even if the Court assumes that there is complete diversity of citizenship, Plaintiff does not allege that his claim satisfies the requisite jurisdictional amount. In any event, it is not clear what specific claims he is asserting against Defendants, because the facts alleged do not readily suggest any claims arising under state law.
B. Federal Question Jurisdiction
Plaintiff does not invoke the Court's federal question jurisdiction, but his allegations against Sanders and Tucker potentially implicate the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692. The FDCPA applies to consumer debt “arising out of . . . transaction[s]” that “are primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5); Polanco v. NCO Portfolio Mgmt., Inc., 930 F.Supp.2d 547, 551 (S.D.N.Y. 2013) (“[T]he FDCPA is triggered when the obligation is a debt arising out of a consumer transaction”). In cases where the FDCPA applies, it prohibits deceptive and misleading practices by “debt collectors.” 15 U.S.C. § 1692e.
A debt collector is defined in § 1692a(6) as: (1) a person whose principal purpose is to collect debts; (2) a person who regularly collects debts owed to another; or (3) a person who collects its own debts, using a name other than its own as if it were a debt collector. Creditors are generally not considered “debt collectors” under the FDCPA. See Burns v. Bank of Am., 655 F.Supp.2d 240, 254 (S.D.N.Y. 2008) (dismissing FDCPA claims against bank mortgagee because they were not a ‘debt collector' since “the [FDCPA] is quite clear that it is directed at independent debt collectors and not creditors attempting to collect on their own debts”) (citation omitted), aff'd, 360 Fed.Appx. 255 (2d Cir. 2010).
See also Henson v. Santander Consumer USA, Inc., 137 S.Ct. 1718 (2017) (holding that entities that regularly purchase debts originated by someone else and then seek to collect those debts for their own account are not necessarily debt collectors subject to the FDCPA) .
“The term ‘debt collector' means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6).
Here, Regus cannot bring FDCPA claims against Regus, because Regus does not qualify as a debt collector under the statute. But attachments to the complaint suggest that Sanders and Tucker engage in debt collection activity. If Plaintiff wishes to assert an FDCPA claim against Sanders and Tucker, he must allege facts giving rise to an inference that they violated the statute. Plaintiff's original complaint fails to do that.
C. Claims on behalf of Green-Jay Ltd.
Plaintiff may seek to assert claims on behalf of Green-Jay Ltd. But corporations, partnerships and limited liability companies may not appear without counsel. See Lattanzio v. COMTA, 481 F.3d 137 (2d Cir. 2007) (“[W]e hold that a sole member limited liability company must be represented by counsel to appear in federal court.”); Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) (noting that a corporation cannot proceed pro se). Moreover, as a pro se litigant, Plaintiff Wynn cannot act on behalf of another. See U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008) (“[A]n individual who is not licensed as an attorney may not appear on another person's behalf in the other's cause.”) (internal quotation marks and citation omitted).
Accordingly, Plaintiff Wynn may not appear pro se on behalf of Green-Jay Ltd.
LEAVE TO AMEND
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it 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). In an abundance of caution, the Court grants Plaintiff leave to amend his complaint. Because Plaintiff's amended complaint will completely replace, not supplement, his original complaint, any facts or claims that Plaintiff wants to include from the previous complaint must be repeated in the amended complaint. Plaintiff cannot supplement his pleadings by letter.
Plaintiff is not asserting employment discrimination claims, and thus he cannot obtain relief that is comparable to what someone received in an employment discrimination lawsuit against Regus. And Plaintiff cannot seek Sanders' disbarment. Cf. In re Attorney Disciplinary Appeal, 650 F.3d 202, 203-05 (2d Cir. 2011) (per curiam) (holding that plaintiff lacked standing to challenge a state disciplinary committee decision not to discipline an attorney); Bracci v. Becker, No. 11-CV-1473, 2013 WL 123810, at *11 (N.D.N.Y. Jan. 9, 2013) (holding that “a private citizen does not have standing to initiate or maintain a disciplinary proceeding against” an attorney.)
Plaintiff has previously filed pro se complaints in this District. See Wynn v. Nat'l Amusement, Inc., ECF 1:18-CV-9801, 16 (CM) (S.D.N.Y. Sept. 17, 2019) (dismissing amended complaint asserting employment discrimination claims for failure to state a claim); Wynn v. Brose Chung, ECF 1:18-CV-7044, 6 (LLS) (S.D.N.Y. Nov. 19, 2018) (dismissing amended complaint asserting claims under diversity jurisdiction for lack of subject matter jurisdiction); Wynn v. Rodburg, ECF 1:18-CV-7611, 5 (CM) (S.D.N.Y. Mar. 13, 2019) (dismissing complaint without prejudice for failure to submit signed IFP application).
In light of Plaintiff's litigation history, Plaintiff is charged with possessing the requisite knowledge to assert a viable claim falling within this Court's jurisdiction should any exist in connection with the underlying events. At a minimum, Plaintiff should handwrite his complaint neatly and clearly so that the Court can readily understand what his claims are and what facts he is setting forth to support those claims.
At this stage of the case, Plaintiff need not prove his allegations or provide supporting evidence. Accordingly, Plaintiff is not required to attach documents or other materials to his pleading. What the Court requires is a clear and concise account of the facts explaining what happened and how each Defendant was personally involved in what occurred, and how those acts or omissions violated his rights.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint, ” and label the document with docket number 21-CV-3503 (LT S). An Amended Complaint form is attached to this order. No. summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
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.