UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JUSTINA JOUNGSOON KIM (MARIA J. KIM), Plaintiff, 1:21-CV-6647 (LTS) -against- ORDER OF DISMISSAL DAVID BORNMAN, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff Justina Joungsoon Kim (also known as Maria J. Kim), of Scarsdale, New York, appears pro se and sues David Bornman.1 She describes Bornman as a “U.N. military serving MD surgeon in Syria [sic]” who resides in Miami Beach, Florida. (ECF 2, at 3.) Plaintiff does not specify the basis for the Court’s subject matter jurisdiction to consider her claims. She seeks $15,720 in damages. By order dated September 8, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). For the reasons set forth below, the Court dismisses this action for lack of subject matter jurisdiction. STANDARD OF REVIEW The Court must dismiss an IFP 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
1 Under Rule 5.2(a)(4) of the Federal Rules of Civil Procedure, a court submission must refer to a financial account number by referring only to the account number’s last four digits. Plaintiff’s complaint has attached to it documents revealing complete financial account numbers for accounts belonging to entities other than Plaintiff. The Court has therefore asked the Clerk of Court to restrict electronic access to the complaint to a “case-participant only” basis. 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). BACKGROUND Plaintiff alleges the following in her complaint’s statement of claim and in the documents attached to her complaint: In July 2019, Plaintiff was introduced to Defendant David Bornman via a dating website. Plaintiff and Bornman thereafter corresponded via email. Bornman told Plaintiff that he was serving in the United States military as an orthopedic surgeon, but that he was employed by the United Nations overseas. He asked Plaintiff to provide $15,720 to pay for his release from the military, and he promised to repay her as soon as he returned to the United States; he owns a home in Miami Beach, Florida. Plaintiff transferred that amount to Bornman or
to other entities via two bank wire transfers. Later, Bornman asked Plaintiff to pay approximately $60,000 in taxes that he had owed for 12 years. Plaintiff became suspicious and refused to pay Bornman’s tax debt. Bornman has not repaid Plaintiff the $15,720 that she paid for his release from the military. Plaintiff seeks that amount in damages from Bornman. 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.”). A. Federal question jurisdiction To invoke federal question jurisdiction, a plaintiff’s claims must arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under
federal law if the complaint “establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Mere invocation of federal question jurisdiction, without any facts demonstrating a federal law claim, does not create federal question jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996). Plaintiff alleges no facts that suggest that any of her claims arise under federal law. Thus, the Court lacks federal question jurisdiction to consider Plaintiff’s claims. B. Diversity jurisdiction To establish the Court’s diversity jurisdiction, a plaintiff must first show that she 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 she is domiciled, which is defined as the place where she “has [her] true fixed home . . .
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JUSTINA JOUNGSOON KIM (MARIA J. KIM), Plaintiff, 1:21-CV-6647 (LTS) -against- ORDER OF DISMISSAL DAVID BORNMAN, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff Justina Joungsoon Kim (also known as Maria J. Kim), of Scarsdale, New York, appears pro se and sues David Bornman.1 She describes Bornman as a “U.N. military serving MD surgeon in Syria [sic]” who resides in Miami Beach, Florida. (ECF 2, at 3.) Plaintiff does not specify the basis for the Court’s subject matter jurisdiction to consider her claims. She seeks $15,720 in damages. By order dated September 8, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). For the reasons set forth below, the Court dismisses this action for lack of subject matter jurisdiction. STANDARD OF REVIEW The Court must dismiss an IFP 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
1 Under Rule 5.2(a)(4) of the Federal Rules of Civil Procedure, a court submission must refer to a financial account number by referring only to the account number’s last four digits. Plaintiff’s complaint has attached to it documents revealing complete financial account numbers for accounts belonging to entities other than Plaintiff. The Court has therefore asked the Clerk of Court to restrict electronic access to the complaint to a “case-participant only” basis. 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). BACKGROUND Plaintiff alleges the following in her complaint’s statement of claim and in the documents attached to her complaint: In July 2019, Plaintiff was introduced to Defendant David Bornman via a dating website. Plaintiff and Bornman thereafter corresponded via email. Bornman told Plaintiff that he was serving in the United States military as an orthopedic surgeon, but that he was employed by the United Nations overseas. He asked Plaintiff to provide $15,720 to pay for his release from the military, and he promised to repay her as soon as he returned to the United States; he owns a home in Miami Beach, Florida. Plaintiff transferred that amount to Bornman or
to other entities via two bank wire transfers. Later, Bornman asked Plaintiff to pay approximately $60,000 in taxes that he had owed for 12 years. Plaintiff became suspicious and refused to pay Bornman’s tax debt. Bornman has not repaid Plaintiff the $15,720 that she paid for his release from the military. Plaintiff seeks that amount in damages from Bornman. 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.”). A. Federal question jurisdiction To invoke federal question jurisdiction, a plaintiff’s claims must arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under
federal law if the complaint “establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Mere invocation of federal question jurisdiction, without any facts demonstrating a federal law claim, does not create federal question jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996). Plaintiff alleges no facts that suggest that any of her claims arise under federal law. Thus, the Court lacks federal question jurisdiction to consider Plaintiff’s claims. B. Diversity jurisdiction To establish the Court’s diversity jurisdiction, a plaintiff must first show that she 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 she is domiciled, which is defined as the place where she “has [her] true fixed home . . . and to which, whenever [s]he is absent, [s]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. 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, a citizen of New York State, seems to allege that Bornman is a citizen of Florida. Thus, the parties appear to be diverse. But Plaintiff fails to allege facts showing that her claims satisfy the jurisdictional amount for a diversity action – an amount in excess of the sum or value of $75,000; she seeks damages totaling only $15,720. Accordingly, the Court lacks diversity jurisdiction to consider Plaintiff’s claims, and the Court dismisses this action for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). CONCLUSION The Court dismisses this action for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
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). Plaintiff has consented to electronic service of court documents. (ECF 3.) SO ORDERED. Dated: September 17, 2021 New York, New York
/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge