Trisvan v. Regal Entertainment Group et al, No. 1:2021cv00187 - Document 5 (E.D.N.Y. 2021)

Court Description: MEMORANDUM AND ORDER granting 4 Motion for Leave to Proceed in forma pauperis. The Court dismisses with prejudice Plaintiff's claim under the Clayton Act for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and dismisses w ithout prejudice Plaintiff's claims under the MMWA and the U.C.C. for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. The Court grants Plaintiff leave to file an amended complaint within th irty days from the entry of this Memorandum and Order. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore denies in forma pauperis status for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45(1962). The Clerk of Court is directed to mail a copy of this Memorandum and Order to Plaintiff at the address of record. Ordered by Chief Judge Margo K. Brodie on 2/17/2021. (Piper, Francine)

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4, 1070 (2d Cir. 1996) (same). The amount in controversy must be non-speculative in order to satisfy the statute and conclusory allegations that the amount-in-controversy requirement is satisfied are insufficient. See Valente v. Garrison from Harrison LLC, No. 15-CV-6522, 2016 WL 126375, at *2 (E.D.N.Y. Jan. 11, 2016) (“[B]oilerplate pleadings do not suffice to establish that [an] action involves an amount in controversy adequate to support federal diversity jurisdiction.”). In addition, where the jurisdictional amount includes punitive damages, those punitive damages will be considered with heightened scrutiny. See Nwanze v. Time, Inc., 125 F. App’x 346, 349–50 (2d Cir. 2005) (finding the plaintiff’s “demand for five million dollars’ punitive 10 Case 1:21-cv-00187-MKB-ST Document 5 Filed 02/17/21 Page 11 of 13 PageID #: 28 damages based on his claims that [the defendant] fraudulently induced him into subscribing to magazines with promises of multi-million dollar prizes — with unspecified or no actual damages” insufficient to meet amount-in-controversy requirement); Zahn v. Int’l Paper Co., 469 F.2d 1033, 1033 n.1 (2d Cir. 1972) (“[I]n computing jurisdictional amount, a claim for punitive damages is to be given closer scrutiny, and the trial judge accorded greater discretion, than a claim for actual damages.”); Cohen v. Narragansett Bay Ins. Co., No. 14-CV-3623, 2014 WL 4701167, at *3 n.4 (E.D.N.Y. Sept. 23, 2014) (“[T]he [c]ourt is not obligated to accept, on face value, a claimed amount of punitive damages, particularly where there would be no diversity without such damages.” (citing Nwanze, 125 F. App’x at 349)). Although Plaintiff alleges that the parties are diverse, 2 he fails to provide a basis for seeking $225,000 in punitive and compensatory damages for the alleged food poisoning, making his request for punitive damages speculative. (See generally Compl.) Because Plaintiff’s request for relief is speculative, it is insufficient to meet the amount in controversy required for the Court to exercise diversity jurisdiction over this matter. See Centra Devs. Ltd. v. Jewish Press Inc., No. 16-CV-6737, 2018 WL 1788148, at *5 (E.D.N.Y. Feb. 20, 2018) (finding a lack of subject matter jurisdiction despite the plaintiff’s allegations of “$3,000,000 in punitive damages” because the “[p]laintiff’s complaint fail[ed] to allege any other out-of-pocket expenses [that plaintiff] incurred, except attorney’s fees”), report and recommendation adopted, 2018 WL 1445574 (E.D.N.Y. Mar. 23, 2018); see also Cohen, 2014 WL 4701167, at *3 n.4 (“[T]he [c]ourt is not obligated to accept, on face value, a claimed amount of punitive damages, particularly where there would be no diversity without such damages.” (citing Nwanze, 125 F. App’x at 2 Plaintiff provides a New York address for himself, a Tennessee address for Regal, and a London address for Cineworld. (Compl. 1.) He alleges that Defendants both have “their princip[al] place of business . . . outside of New York.” (Id. at 2.) 11 Case 1:21-cv-00187-MKB-ST Document 5 Filed 02/17/21 Page 12 of 13 PageID #: 29 349)); Watty v. Cuomo, No. 12-CV-2660, 2013 WL 4495184, at *2 (E.D.N.Y. Aug. 14, 2013) (“[The plaintiff’s] demand for punitive and other additional damages, unsupported by the law or the allegations in the amended complaint, is not sufficient to satisfy the amount-in-controversy requirement.”). Accordingly, the Court dismisses Plaintiff’s state law claim that Defendants “violated U.C.C. law” without prejudice for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. (Compl. 2–3.) c. Leave to Amend In light of Plaintiff’s pro se status, the Court grants Plaintiff leave to file an amended complaint within thirty days of this Memorandum and Order. Plaintiff is advised that the amended complaint will completely replace the original complaint, must be captioned “Amended Complaint,” and shall bear the same docket number as this Memorandum and Order. If Plaintiff intends to invoke the Court’s diversity jurisdiction over his state law claim, Plaintiff must clearly state the basis for doing so, including facts to support the amount in controversy. If Plaintiff fails to file an amended complaint within the time allowed, the Court will direct the Clerk of Court to enter judgment dismissing the case for the reasons stated above. III. Conclusion Accordingly, the Court dismisses with prejudice Plaintiff’s claim under the Clayton Act for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and dismisses without prejudice Plaintiff’s claims under the MMWA and the U.C.C. for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. The Court grants Plaintiff leave to file an amended complaint within thirty days from the entry of this Memorandum and Order. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this 12 Case 1:21-cv-00187-MKB-ST Document 5 Filed 02/17/21 Page 13 of 13 PageID #: 30 Memorandum and Order would not be taken in good faith and therefore denies in forma pauperis status for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is directed to mail a copy of this Memorandum and Order to Plaintiff at the address of record. Dated: February 17, 2021 Brooklyn, New York SO ORDERED: s/ MKB MARGO K. BRODIE United States District Judge 13

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