Opinion
22-CV-6922 (LTS)
11-20-2023
PIERRE LAVI ON BEHALF OF TURBO DYNAMICS CORPORATION, Plaintiff, v. BNP PARIBAS BRACH, in NY City, Majority Owner of BMCI Bank in Marroc; and MBASSY OF MARROC, Washington, DC, and its Consulate in NY City, Defendants.
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD
Laura Taylor Swain Chief United States District Judge
Plaintiff Pierre Lavi, who is proceeding pro se, brings this action on behalf of himself and Turbo Dynamics Corporation. By order dated September 27, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth in this order, the Court dismisses the action, but grants Plaintiff 30 days' leave to replead.
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 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 of the claims raised. 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.
Rule 8 requires a complaint to 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.
BACKGROUND
Plaintiff Pierre Lavi, who resides in Huntington, New York, in Suffolk County, brings this action on behalf of himself and Turbo Dynamics Corporation. He brings claims against “BNP Paribas Brach in NY City” and the “Mbassy of Marroc.” The Court understands Plaintiff to mean BNP Paribas, an international banking establishment; and the Embassy of Morocco.Plaintiff seeks money damages.
See https://group.bnpparibas/en/group/about-us [https://perma.cc/LP4L-5YXB]; see also https://www.visahq.com/morocco/embassy/united-states/ [https://perma.cc/7R85-VC2X].
Plaintiff submits his complaint in the form of a letter to the Court. He begins the submission with the following statement.
Undersigned are suing the above mentioned persons and enteties for substantial of meny undersigned had already lost, decions of amount du, at least one million U.S. dollars.(ECF No. 1 at 1.) Plaintiff continues with these assertions:
I respectfully request Your Honor to put your kind attention the following material facts.
BNP Paribas is majority owner of BMCI a Morrocan Babk who wh transferred the amount of $39948.20 on December 2020.
Maracana Embassy is subject of operation of the FSIA under 28 USC 1604 and 1605 as forighn nation having immunity but there are exception to this immunity
Which are regarding property situation in USA, suits in admiralty to enforce maritime liens and commercial activities, the most important and widely used exception is the commercial activity exception, the theory underlying the exception is that when the government is engaged in an activity that is commercial in nature the sovereign divest itself of its sovereign character and takes that a private citizen . . . desending to an equivalent level with those whom
it associates. The copies of this pleading are going to be sent to BNP Pribas in NY City as well as Embassy of Marroc in Washington DC which I had done many contacts met then at their offices in Washington DC providing any and all material facts while nothing had ever happened. Pls note that onee largest governmental organization in Marroc had committed fraud against undersigned and my own company.(Id. at 1-2.)
Plaintiff writes in all capital letters. For readability, the Court uses standard capitalization when quoting from the complaint, but all other grammar, punctuation, and spelling are as in the original.
DISCUSSION
Plaintiff's complaint is short and lacks the facts necessary to enable the Court to determine whether Plaintiff is entitled to relief. It is not clear how each named Defendant was involved in the alleged deprivation of Plaintiff's rights. Because such facts are not included, Plaintiff's claim that his constitutional rights were violated appears to be conclusory, and therefore must be dismissed. Even if the Court could discern the claims Plaintiff is trying to assert, as described below, the complaint suffers from other deficiencies.
A. Claims on behalf of Turbo Dynamics Corporation
Plaintiff purports to bring this complaint on behalf of himself and Turbo Dynamics Corporation. The statute governing appearances in federal court, 28 U.S.C. § 1654, “allow[s] two types of representation: ‘that by an attorney admitted to the practice of law by a governmental regulatory body, and that by a person representing himself.'” Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (quoting Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)). A nonlawyer cannot bring suit on behalf of another entity. See United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998). While “some courts allow sole proprietorships to proceed pro se [because] a sole proprietorship has no legal existence apart from its owner,” Lattanzio, 481 F.3d at 140 (citation omitted), courts generally do not allow corporations, partnerships, associations, and other “artificial entities” to appear in court without an attorney, Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202-03 (1993).
Because Plaintiff does not allege that he is an attorney, and he does not allege that Turbo Dynamics Corporation is a sole proprietorship, Plaintiff cannot assert claims on behalf of Turbo Dynamics Corporation. The Court therefore dismisses without prejudice any claims that Plaintiff asserts on behalf of Turbo Dynamics Corporation and treats this action as having been brought by Plaintiff, individually.
Plaintiff has been advised in prior actions that, as a non-attorney, he cannot bring claims on behalf of corporate entities, including Turbo Dynamics. See, e.g., Lavi et al. v. DWS, No. 22-CV-7501 (LTS) (S.D.N.Y. Oct. 7, 2022) (ECF 4) (explaining that “a pro se plaintiff cannot represent a corporation, even if he is the sole member or shareholder of that corporation”); Lavi v. Bank Negara Indonesia, No. 22-CV-6000 (VSB) (S.D.N.Y. Sept. 20, 2022) (ECF 6) (“Plaintiff purports to bring this complaint on his own behalf and on behalf of his company, Turbodynamics Corporation. As a pro se litigant, however, Plaintiff cannot act on behalf of another.”).
B. Subject Matter Jurisdiction
Plaintiff brings this action alleging that Defendants caused him financial harm, but he does not specify the jurisdictional basis of this action. Even when read with the “special solicitude” due pro se pleadings, Triestman, 470 F.3d at 475, Plaintiff does not establish that the Court has subject matter jurisdiction of this action to consider any claims he may be asserting on his own behalf.
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. “‘[A]ny 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 & Com. Workers Union, Loc. 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)); 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.”). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
1. 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)). Merely invoking federal jurisdiction, without pleading any facts demonstrating a federal law claim, does not create federal subject matter jurisdiction. See Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996).
Plaintiff does not assert any federal claims, and the limited facts set forth in the complaint do not implicate a federal cause of action. It thus appears that the Court does not have federal question jurisdiction of this matter.
2. Diversity Jurisdiction
Plaintiff does not allege facts demonstrating that the Court has diversity jurisdiction of this action either. To establish diversity jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege facts indicating 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).
Plaintiff does not plead any facts suggesting that the amount-in-controversy requirement is satisfied. There is in this Circuit “a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy.” Wolde-Meskel v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999). But where a complaint does not contain facts plausibly suggesting that the amount in controversy meets the jurisdictional minimum, the Court is not required to presume that the bare allegations in the complaint are a good faith representation of the actual amount in controversy. See Weir v. Cenlar FSB, No. 16-CV-8650, 2018 WL 3443173, at *12 (S.D.N.Y. July 17, 2018) (reasoning that “the jurisdictional amount, like any other factual allegation, ought not to receive the presumption of truth unless it is supported by facts rendering it plausible”) (citing Wood v. Maguire Auto. LLC, No. 09-CV-0640, 2011 WL 4478485, at *2 (N.D.N.Y. Sept. 26, 2011), aff'd, 508 Fed.Appx. 65 (2d Cir. 2013) (summary order)).
Here, Plaintiff seeks at least one million dollars in damages for alleged losses, but he does not allege any facts about what occurred, how the losses were incurred, or why Defendants should be held liable. Plaintiff fails to allege facts plausibly suggesting that he has suffered any damages amounting to the one million dollars he seeks from Defendants.
Nor does the Plaintiff plead facts about the citizenship of each party. For purposes of diversity jurisdiction, a corporation is a citizen of both the State where it is incorporated and the State where it has its principal place of business. Hertz Corp. v. Friend, 559 U.S. 77, 93 (2010). “An individual's citizenship, within the meaning of the diversity statue, is determined by his domicile.” Johnson v. Smithsonian, 4 Fed.Appx. 69, 70 (2d Cir. 2001) (citing Palazzo v. Corio, 232 F.3d 88, 42 (2d Cir. 2000)). Domicile is “the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Linardos, 157 F.3d at 948. The diversity statute provides for jurisdiction of an action between citizens of different States in which subjects of a foreign state are additional parties, § 1332(a)(3), but diversity is defeated where there are aliens on both sides of the litigation. Franceskin v. Credit Suisse, 214 F.3d 253, 258 (2d Cir. 2000) (citing Int'l Shipping Co. v. Hydra Offshore, Inc., 875 F.2d 388, 391 (2d Cir. 1989)); Moreno-Godoy v. Gallet Dreyer & Berkey, LLP, No. 14-CV-7082 (PAE), 2015 WL 5737565, at *7 (S.D.N.Y. Sept. 30, 2015) (When a party is an alien for diversity purposes, “diversity i[s] . . . defeated if another alien party is present on the other side of the litigation.”).
Plaintiff names himself, both individually and as President of Turbo Dynamics Corporation, as the plaintiff in this action. Plaintiff provides an address for himself in Suffolk County, New York, but he does not indicate whether he is domiciled at the Suffolk County address. It is also unclear from the allegations in the complaint whether Plaintiff has United States citizenship. If Plaintiff is an alien, he cannot sue foreign entities and citizens under the Court's diversity jurisdiction because there would be alien parties on both sides of the litigation. Franceskin, 214 F.3d at 258 (“[E]ven if a corporation organized under the laws of a foreign nation maintains its principal place of business in a State, and is considered a citizen of that State, diversity i[s] nonetheless defeated if another alien party is present on the other side of the litigation.”); Corporacion Venezolana de Formento v. Vintero Sales Corp., 629 F.2d 786, 790 (2d Cir. 1980) (“‘[T]he presence of aliens on two sides of a case destroys diversity jurisdiction,' just like the presence of two citizens of the same state.”).
The Court also notes that Plaintiff has not alleged any facts suggesting that venue lies in this district. See generally 28 U.S.C. § 1391. Suffolk County is in the Eastern District of New York. 28 U.S.C. § 112(c). The facts alleged in the complaint do not suggest that any part of the events giving rise to this action took place within this district, § 1391(b)(2), or that venue is proper in this district based on the residence of the parties, § 1391(b)(1). If Plaintiff amends his complaint, and if the facts alleged therein show that venue is improper, the Court can transfer the action to any district in which it might have been brought. See 28 U.S.C. §§ 1404, 1406.
Even if Plaintiff is a legal permanent resident of the United States and therefore, under § 1332(a)(2), is deemed to reside in the State where he is domiciled (New York), “section 1332(a)(2) does not give the district court jurisdiction over a suit by a permanent resident against a non-resident alien.” Tagger v. Strauss Grp. Ltd., 951 F.3d 124, 127 (2d Cir. 2020); see also, One World, LLC v. Onoufriadis, No. 20 CIV. 5802 (CM), 2021 WL 184400, at *13 (S.D.N.Y. Jan. 19, 2021), aff'd, No. 21-374-CV, 2021 WL 4452070 (2d Cir. Sept. 29, 2021) (“A lawful permanent resident domiciled in a state is not a citizen of that state - he is an alien for purposes of diversity jurisdiction.”).
Further, the complaint does not provide any factual detail concerning the defendants Plaintiff sues - BNP Paribas and the Embassy of Morocco - that would enable the Court to determine the entities' citizenships.
Because Plaintiff does not allege facts suggesting that any claims he may be able to plead plausibly would satisfy the $75,000.00 amount in controversy or that diversity of citizenship is complete, the Court does not have diversity jurisdiction of this matter. See Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (holding that the plaintiff bears the burden of establishing subject matter jurisdiction). The Court therefore dismisses the complaint for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
C. Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1611
Plaintiff names the Embassy of Morocco as a defendant. Agencies of a foreign state, such as Defendant Embassy of Morocco, are covered by the FSIA. 28 U.S.C. § 1603; Underwood v. United Republic of Tanzania, No. 94-CV-902, 1995 WL 46383, at *2 (D.D.C. Jan. 27, 1995) (“[W]e conclude that as a matter of law an embassy of a sovereign nation is a foreign state” for purposes of the FSIA). The FSIA is the “only . . . basis for exercising subject matter jurisdiction over a foreign state.” Nam v. Permanent Mission of Republic of Korea to United Nations, No. 21-CV-06165 (JLR), 2023 WL 2138601, at *7 (S.D.N.Y. Feb. 21, 2023) (relying on Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989)). It renders a foreign government “presumptively immune from the jurisdiction of United States courts unless one of the Act's express exceptions to sovereign immunity applies.” OBB Personenverkehr AG v. Sachs, 577 U.S. 27, 31 (2015) (citation omitted); 28 U.S.C. § 1330(a) (conferring jurisdiction over “any claim . . . with respect to which the foreign state is not entitled to immunity”).
The exception for commercial activity provides that a foreign state shall not be immune from the jurisdiction of United States courts in any case “in which the action is based upon a commercial activity carried on in the United States by the foreign state.” 28 U.S.C. § 1605(a)(2); Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488-89 (1983) (commercial activity exception includes “actions based upon commercial activities of the foreign sovereign carried on in the United States or causing a direct effect in the United States”).
The Second Circuit has explained the FSIA's burden shifting structure for determining whether a defendant is protected by sovereign immunity as follows:
A defendant seeking to invoke the FSIA's protections must make a prima facie showing that it is a foreign sovereign. See Rukoro v. Federal Republic of Germany, 976 F.3d 218, 224 (2d Cir. 2020). If the defendant is successful in doing so, the plaintiff bears the burden of demonstrating that an exception to foreign sovereign immunity applies. See id. “Once the plaintiff has met its initial burden of production, the defendant bears the burden of proving, by a preponderance of the evidence, that the alleged exception does not apply.” Id. (quoting Pablo Star Ltd. v. Welsh Gov't, 961 F.3d 555, 560 (2d Cir. 2020)).Beierwaltes v. L'Office Federale de la Culture de la Confederation Suisse, 999 F.3d 808, 816-17 (2d Cir. 2021); Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993) (same).
Here, Plaintiff's complaint does not include any allegations whatsoever about the Embassy of Morocco or its activities. He names the Embassy of Morocco in the caption but does not mention this defendant in the body of the amended complaint. Instead, Plaintiff simply asserts that there are exceptions to immunity under the FSIA. Because Plaintiff does not plead any facts suggesting that an exception to foreign sovereign immunity applies, the Court lacks subject matter jurisdiction of Plaintiff's claims against the Embassy of Morocco.
D. Leave to Replead
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects unless amendment 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). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). In an abundance of caution, therefore, the Court grants Plaintiff 30 days' leave to replead his claims. The amended complaint must allege facts demonstrating that the Court has subject matter jurisdiction of Plaintiff's claims and contain a short and plain statement showing that he is entitled to relief.
Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the second amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff's complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii), and for lack of subject matter jurisdiction, see Fed.R.Civ.P. 12(h)(3). All other pending matters in this case are terminated.
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 30 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-6922 (LTS). 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 Court will direct the Clerk of Court to enter judgment in this case.
The Clerk of Court is instructed to hold this matter open on the docket until a civil judgment is entered.
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. 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.