Dabydeen v. Wells Fargo Bank, N.A.
| Decision Date | 29 June 2018 |
| Docket Number | 18-CV-3396(KAM) |
| Parties | CHARLES DABYDEEN, Plaintiff, v. WELLS FARGO BANK, N.A.; CARRINGTON MORTGAGE SERVICES, LLC; LISA JADIDIAN; SHAPIRO, DICARO & BARAK, LLC, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Not for Publication
On June 8, 2018, plaintiff Charles Dabydeen ("plaintiff"), a resident of Queens Village, New York, proceeding pro se, commenced the instant action by filing a complaint ("Compl." or the "complaint," ECF No. 1) in this court. In the complaint, plaintiff states that he seeks an emergency temporary restraining order and/or a preliminary injunction "to urgently and immediately enjoin and restrain defendants" from foreclosing on and selling his real property located in Queens Village, New York. (Compl. at 1, 3.)
For the reasons discussed below, the complaint is dismissed for lack of federal subject matter jurisdiction, and plaintiff is granted thirty (30) days from the date of this Memorandum and Order to file an amended complaint. Additionally, because it is clear from the face of the complaint that the court lacks subject matter jurisdiction over this action, plaintiff's request for a temporary restraining order and/or preliminary injunction is denied.
Plaintiff resides in Queens Village, New York, and has named as defendants Wells Fargo Bank N.A. ("Wells Fargo"), located in San Francisco, California; Carrington Mortgage Services, LLC ("Carrington"), located in Santa Ana, California; Lisa Jadidian, Esq. ("Jadidian"), located in Long Island City, New York; and Shapiro, DiCaro & Barak, LLC ("Shapiro"), located in Rochester, New York. (Compl. at 1.) In addition to his request for a temporary restraining order and/or preliminary injunction as noted above (see id. at 3), plaintiff seeks, inter alia, injunctive relief "to prevent the foreclosure/sale of [his] property," which is located at 94-44 214th Street, Queens Village, New York (the "Property"), and an award of $5,000,000. (Compl. at 8.)
"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). At the pleadings stage of the proceeding, the court must assume the truth of "all well-pleaded, nonconclusory factual allegations in the complaint." Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (). A complaint must plead sufficient facts to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Lack of subject matter jurisdiction cannot be waived and may be raised at any time by a party or by the court sua sponte. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) . If a federal court lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62-63 (2d Cir. 2009).
The basic statutory grants of subject matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332. "Federal subject matter jurisdiction exists only where the action presents a federal question pursuant to 28 U.S.C. § 1331or where there is diversity jurisdiction pursuant to 28 U.S.C. § 1332." Moore v. Angiuli & Gentile, LLP, No. 12-CV-2966(DLI)(LB), 2012 WL 3288747, at *2 (E.D.N.Y. Aug. 9, 2012) (citing Arbaugh, 546 U.S. at 513).
Diversity jurisdiction exists where, as relevant to this action, 28 U.S.C. § 1332(a)(1). A plaintiff properly invokes federal question jurisdiction where he or she "pleads a colorable claim 'arising under' the Constitution or laws of the United States." Arbaugh, 546, U.S. at 513 (citing Bell v. Hood, 327 U.S. 678, 681-85 (1946)).
Here, plaintiff alleges diversity jurisdiction, but complete diversity does not exist between the parties as plaintiff and defendant Jadidian, as residents of New York, appear to be citizens of the same state. See Handelsman v. Bedford Vill. Assocs., 213 F.3d 48, 51 (2d Cir. 2000) .
Additionally, although the complaint does not contain allegations as to the citizenship of Shapiro's members, if any of Shapiro's members are New York citizens, Shapiro would also destroy diversity. See id. at 51-52 (citations omitted) (concluding that no diversity jurisdiction existed where individual plaintiff and members of defendant partnership and LLC were citizens of the same state); see also ICON MW, LLC v. Hofmeister, 950 F. Supp. 2d 544, 546 (S.D.N.Y. 2013) ( .
Accordingly, based on Jadidian's presence as a defendant, the court lacks diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1) because there is not complete diversity between the parties.
Plaintiff alleges federal question jurisdiction under various federal statutes and regulations. The complaint expressly cites 42 U.S.C. § 1983 ("section 1983") and 18 U.S.C. § 241 as bases for federal question jurisdiction. (Compl. at1.) Additionally, although not expressly cited as bases for federal subject matter jurisdiction, the complaint references the Freedom of Information Act, 5 U.S.C. § 552, the ESIGN Act, 15 U.S.C. §§ 7001 et seq., and various provisions of the Code of Federal Regulations. (See Compl. at 3-4 (). None of these sources of law, however, form the basis for a colorable federal claim in the instant action.
Section 1983 requires that "the conduct complained of must have been committed by a person acting under color of state law" and "the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citations omitted). Section 1983 imposes liability for constitutional deprivations caused by state actors, and cannot be applied to the actions of private individuals or private organizations.
The Supreme Court has noted that "the under-color-of-state-law element of [section] 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks and citations omitted).Here, none of the named defendants are alleged to be state actors or to be acting "under color of state law." Section 1983 therefore cannot serve as a basis for federal question jurisdiction in the instant action.
Plaintiff also alleges federal question jurisdiction under various criminal statutes set forth in title 18 of the United States Code. (Compl. at 1 (citing 18 U.S.C. § 241), and at 7 (citing 18 U.S.C. Ch. 41, 47, 95 and §§ 241-42, 872-73, 876, 880, 1001, 1957).) "'It is a truism' long recognized by federal courts 'that in our federal system crimes are always prosecuted by the Federal Government,' not by private complaints." Dourlain v. Comm'r of Taxation & Fin., 133 F. App'x 765, 767 (2d Cir. 2005) (quoting Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87 (2d Cir. 1972)).
Although a party may be able to show that Congress intended a particular statute to be privately enforceable, see id. at 767-68 (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002)), plaintiff here has made no such showing with respect to any of the federal criminal statutes he cites, and accordingly none of those statutes can serve as the basis for federal question jurisdiction.
The Freedom of Information Act, by its own terms, applies to federal agencies, not private actors. See 5 U.S.C. § 552(a) (). Therefore, even construing the complaint liberally, the court concludes that the Freedom of Information Act is wholly inapplicable and irrelevant to the allegations set forth in the complaint.
The ESIGN Act governs the use of electronic signatures and forms in transactions affecting interstate commerce. See 15 U.S.C. § 7001(a). Thus, although the ESIGN act may be relevant to the adjudication of a contract dispute, it cannot form the basis for federal question jurisdiction. See Cutrone v. Mortg. Elec. Registration Sys., Inc., 981 F. Supp. 2d 144, 149 (E.D.N.Y. 2013) (...
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