Lavi v. Talwar

1

PIERRE LAVI, Plaintiff, v. PUNEET TALWAR; GENERAL MANAGER, BANK CENTRAL POPULAIRE, Defendants.

No. 22-CV-10948 (LTS)

United States District Court, S.D. New York

February 16, 2023

ORDER TO AMEND

LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff Pierre Lavi brings this action on his own behalf and as “the Owner of Turbo Dynamics Corporation.” By order dated January 18, 2023, the Court granted Plaintiff Pierre Lavi's request to proceed in forma pauperis (IFP), that is, without prepayment of fees.^[1]For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.

STANDARD OF REVIEW

The Court must dismiss an in forma pauperis 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 resides in Huntington, New York, in Suffolk County, and he provides an address for Turbo Dynamics Corporation at the same address.^[2] He makes the following allegations:

My company, Turbo Dynamics Corporation, a manufacturing company of gas turbines and jet engine blades for over 40 years was defrauded as Defendants committed mail and wire fraud against . . . a United States citizen and their company ....[T]he top management of ONEE, the largest government agency in Morocco, . . . decided to enrich themselves by not allowing Turbo Dynamics to receive payment for the transfer of technology and shipment of their machineries to Morocco.

(ECF 1 at 1.)

Plaintiff states that “[t]his is an action to recover the balance of the money due to undersigned owed by ONEE. The last payment received from Banque Centrale Populaire de Morocco (BCP) was in the amount of $39,913.19 on 12/02/2020.” (Id. at 2.) He attaches to the complaint a document that appears to indicate that a wire from originator ONEE Branche Electricite, was sent from originator's bank, BCP, to beneficiary Turbo Dynamics Corporation, at Bank of America. (Id. at 3.) Plaintiff contends that “[a] governmental authority committed fraud against undersigned . . . as they violated United States mail and wire fraud [and] are subject to criminal investigation of United States postal services located at Chicago, Illinois.” (Id.) Plaintiff repeatedly refers to harms against the “undersigned” and he signs the document as “Pierre Lavi, Owner, Turbo Dynamics Corporation.” (Id.)

Plaintiff brings this suit for damages against Defendants Puneet Talwar, an American diplomat serving as the U.S. Ambassador to Morocco; and BCP, the bank that ONEE Branche Electricite used for its wire transfer.^[3]

DISCUSSION

A. Subject Matter Jurisdiction

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 & 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)); 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 Local 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996).

Plaintiff does not specify the basis for jurisdiction of this suit in federal court, but he attaches a copy of a decision in a case brought under the Federal Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611. The FSIA provides “the sole basis for obtaining jurisdiction over a foreign state in the courts of this country” and 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, 136 S.Ct. 390, 394 (2015); 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).

The complaint can be understood as alleging that a state-owned entity, ONEE Branche Electricite, failed to pay Turbo Dynamics Corporation in full for machinery shipped to Morocco. Plaintiff, however, has not named as a defendant ONEE, or any other entity that could be considered a foreign state subject to suit under the FSIA. Instead, Plaintiff sues the U.S. Ambassador to Morocco, and BCP, which appears to be a private bank operating in Morocco. The FSIA does not apply to suits against heads of state or government, to accredited diplomats or consular officers, or to other individual foreign officials in their personal capacity. Samantar v. Yousuf, 560 U.S. 305 (2010).^[4] Thus, even if Plaintiff had sued a foreign diplomat, rather than an American one, this would not provide a basis for suit under the FSIA. The complaint also does not plead any facts suggesting that the FSIA could apply to Plaintiff's claim against a bank, which is not alleged to be a state-owned entity. Thus, although the complaint might be liberally construed as invoking the FSIA, Plaintiff does not plead any facts suggesting that the FSIA provides a basis for jurisdiction of his claims against either of the named defendants.

2. Diversity Jurisdiction

Plaintiff does not allege facts demonstrating that the Court has diversity jurisdiction of this action. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that the plaintiff and the defendant are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). Diversity of citizenship also exists in a suit between a citizen of a State and a subject of a foreign state, unless the foreign subject is lawfully admitted for permanent residence in the United States and is domiciled in the same State, in which case there is no diversity of citizenship. 28 U.S.C. § 1332(a)(2). In addition to pleading diversity of citizenship, 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).

First Plaintiff does not plead any facts suggesting that the amount-in-controversy requirement is satisfied. He states that Turbo Dynamics Corporation was paid approximately $40,000 in 2021, and...