UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY GEORGE BOYD, Plaintiff, 1:21-CV-7030 (LTS) -against- ORDER OF DISMISSAL McDONALD’S RESTARANT, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff Anthony George Boyd, who appears pro se and is currently held as a pretrial detainee in the Anna M. Kross Center on Rikers Island, brings this action in which he sues “McDonald’s Restarant” for slander and seeks $150,000 in damages. By order dated September 15, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).1 For the reasons set forth below, the Court dismisses this action for lack of subject matter jurisdiction. But the Court grants Plaintiff 30 days’ leave to replead his claim in an amended complaint. STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen IFP complaints brought by prisoners. See 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss a prisoner’s IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id.; see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
1 Prisoners are not exempt from paying the full filing fee, even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1). 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).
BACKGROUND Plaintiff alleges the following in his complaint: On June 7, 2021, Plaintiff visited a McDonald’s restaurant in New York, New York, ordered a large soda, and paid for it. The cashier then began to fill Plaintiff’s order, but did so without washing his hands or using gloves. Plaintiff then asked that another employee fill his order. The cashier asked that another employee fill the order, then went into the restaurant office. Minutes later, and before Plaintiff received his soda, police “rushed inside [and] approached Plaintiff.” (ECF 2, at 4.) The cashier then left the office and falsely stated to police that Plaintiff had “displayed and [drawn] a knife towards him while ordering” the soda. (Id. at 5.) But other customers waiting for their orders confirmed that Plaintiff had not displayed or drawn a knife.
Because of the cashier’s false statements to the police, Plaintiff raises a claim of slander against Defendant “McDonald’s Restarant” and seeks $150,000 in damages. 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, a federal district court’s jurisdiction is available only when a “federal question” is presented or, when a plaintiff asserts claims under state law under the Court’s diversity jurisdiction, when the plaintiff and the 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.”). The Court construes Plaintiff’s complaint as asserting a claim of slander under state law under the Court’s diversity jurisdiction. But Plaintiff’s complaint fails to allege sufficient facts to show that this Court has diversity jurisdiction to consider his claims. To establish the Court’s diversity jurisdiction, a plaintiff must first show that he and the defendant are citizens of different states. See 28 U.S.C. § 1332(a)(1); Wis. Dep’t of Corr. v.
Schacht, 524 U.S. 381, 388 (1998) (“A case falls within the federal district court’s ‘original’ diversity ‘jurisdiction’ only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same State.”). For diversity purposes, an individual is a citizen of the State where he is domiciled, which is defined as the place where he “has his true fixed home . . . and to which, whenever he is absent, he has the intention of returning.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (internal quotation marks and citation omitted). An individual “has but one domicile.” Id. And “[w]hen a prisoner is incarcerated in a state different from his previous domicile, there is a rebuttable presumption that the prisoner retains his pre-incarceration domicile rather than acquiring a new domicile.” Liverpool v. City of New York, No. 20-CV-4629, 2020 WL 3972737, at *3 (S.D.N.Y. July 13, 2020). In addition, a corporation is a citizen “of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” § 1332(c)(1); see also Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010) (a
corporation’s principal place of business is its “nerve center,” usually its main headquarters). There is a second component to diversity jurisdiction − the amount in controversy must be in excess of the sum or value of $75,000. See § 1332(a). The sum claimed by a plaintiff will control if it is made in good faith. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938).
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY GEORGE BOYD, Plaintiff, 1:21-CV-7030 (LTS) -against- ORDER OF DISMISSAL McDONALD’S RESTARANT, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff Anthony George Boyd, who appears pro se and is currently held as a pretrial detainee in the Anna M. Kross Center on Rikers Island, brings this action in which he sues “McDonald’s Restarant” for slander and seeks $150,000 in damages. By order dated September 15, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).1 For the reasons set forth below, the Court dismisses this action for lack of subject matter jurisdiction. But the Court grants Plaintiff 30 days’ leave to replead his claim in an amended complaint. STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen IFP complaints brought by prisoners. See 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss a prisoner’s IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id.; see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
1 Prisoners are not exempt from paying the full filing fee, even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1). 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).
BACKGROUND Plaintiff alleges the following in his complaint: On June 7, 2021, Plaintiff visited a McDonald’s restaurant in New York, New York, ordered a large soda, and paid for it. The cashier then began to fill Plaintiff’s order, but did so without washing his hands or using gloves. Plaintiff then asked that another employee fill his order. The cashier asked that another employee fill the order, then went into the restaurant office. Minutes later, and before Plaintiff received his soda, police “rushed inside [and] approached Plaintiff.” (ECF 2, at 4.) The cashier then left the office and falsely stated to police that Plaintiff had “displayed and [drawn] a knife towards him while ordering” the soda. (Id. at 5.) But other customers waiting for their orders confirmed that Plaintiff had not displayed or drawn a knife.
Because of the cashier’s false statements to the police, Plaintiff raises a claim of slander against Defendant “McDonald’s Restarant” and seeks $150,000 in damages. 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, a federal district court’s jurisdiction is available only when a “federal question” is presented or, when a plaintiff asserts claims under state law under the Court’s diversity jurisdiction, when the plaintiff and the 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.”). The Court construes Plaintiff’s complaint as asserting a claim of slander under state law under the Court’s diversity jurisdiction. But Plaintiff’s complaint fails to allege sufficient facts to show that this Court has diversity jurisdiction to consider his claims. To establish the Court’s diversity jurisdiction, a plaintiff must first show that he and the defendant are citizens of different states. See 28 U.S.C. § 1332(a)(1); Wis. Dep’t of Corr. v.
Schacht, 524 U.S. 381, 388 (1998) (“A case falls within the federal district court’s ‘original’ diversity ‘jurisdiction’ only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same State.”). For diversity purposes, an individual is a citizen of the State where he is domiciled, which is defined as the place where he “has his true fixed home . . . and to which, whenever he is absent, he has the intention of returning.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (internal quotation marks and citation omitted). An individual “has but one domicile.” Id. And “[w]hen a prisoner is incarcerated in a state different from his previous domicile, there is a rebuttable presumption that the prisoner retains his pre-incarceration domicile rather than acquiring a new domicile.” Liverpool v. City of New York, No. 20-CV-4629, 2020 WL 3972737, at *3 (S.D.N.Y. July 13, 2020). In addition, a corporation is a citizen “of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” § 1332(c)(1); see also Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010) (a
corporation’s principal place of business is its “nerve center,” usually its main headquarters). There is a second component to diversity jurisdiction − the amount in controversy must be in excess of the sum or value of $75,000. See § 1332(a). The sum claimed by a plaintiff will control if it is made in good faith. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). The Court can dismiss a complaint for failing to plead that the amount in controversy exceeds the sum or value of $75,000, but only if there is “a legal certainty from the complaint that the plaintiff cannot recover sufficient damages to invoke [diversity] jurisdiction.” Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982); see Ochoa v. Interbrew Am., Inc., 999 F.2d 626, 629 (2d Cir. 1993) (“[I]n determining whether a challenged jurisdictional amount has been met, district courts are permitted only to assess the allegations in
a complaint and not the validity of any asserted defenses.”). Plaintiff does not allege his state citizenship or the state citizenship of the defendant. He has therefore failed to allege facts showing that the parties are diverse – that they are not citizens of the same State. The Court therefore lacks diversity jurisdiction to consider this action, and dismisses this action for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). In light of Plaintiff’s pro se status, however, the Court grants Plaintiff 30 days’ leave to amend his complaint to allege facts showing that the Court has diversity jurisdiction to consider his claim. CONCLUSION The Court dismisses this action for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). But the Court grants Plaintiff 30 days’ leave to file an amended complaint in which he alleges facts showing that the Court has diversity jurisdiction to consider his claim. If Plaintiff fails to file an amended complaint within the time allowed, the Court will enter judgment
dismissing this action for lack of subject matter jurisdiction. The Court directs the Clerk of Court 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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: September 20, 2021 New York, New York
/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge