Whitnum v. Hearst Corporation et al
| L. Lee Whitnum |
| John Nickerson, Daniel Tepfer, Stamford Advocate, Steven R. Swartz and Hearst Corporation |
| 3:2018cv01080 |
| June 26, 2018 |
| US District Court for the District of Connecticut |
| New Haven Office |
| Fairfield |
| Michael P Shea |
| Civil Rights: Other |
| 28 U.S.C. ยง 1331 |
| Plaintiff |
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Filing 6
ORDER. Upon review, the plaintiff's #2 complaint appears to contain a jurisdictional defect. She claims that the Court has subject matter jurisdiction over this matter based on the existence of diversity jurisdiction under 28 U.S.C. 1332. (ECF No. 2 at 2.) In support of this contention, she notes that "Plaintiff and Defendants Swartz are citizens of different States and the amount in controversy is more than seventy-five thousand dollars ($75,000.00), exclusive of interests and costs." (Id.) However, the plaintiff's complaint avers that both she and Defendants Daniel Tepfer and John Nickerson are residents of the State of Connecticut. (Id. at 2.) Diversity jurisdiction "require[s] complete diversity between all plaintiffs and all defendants." Lincoln Property Co. v. Roche, 546 U.S. 81, 89 (2005). As such, the fact that the plaintiff and Defendants Tepfer and Nickerson are residents of the State of Connecticut casts serious doubt on the existence of diversity jurisdiction in this case. Although the plaintiff does not mention it in her complaint, she may also invoke federal question jurisdiction under 28 U.S.C. 1331 in light of her First Amendment claim. (See ECF No. 2 at 11.) A plaintiff bringing a claim under the First Amendment, however, must establish as a preliminary matter that the defendant's challenged conduct constitutes state action. See United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 941 F.2d 1292, 1295 (2d Cir. 1991) ("Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action." (internal quotation marks omitted)). "[S]tate action requires both an alleged constitutional deprivation caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation must be a person who may fairly be said to be a state actor." Flagg v. Yonkers Sav. And Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotation marks omitted). The plaintiff's complaint does not contain any indication that state action exists in this case. The Second Circuit has held that federal question jurisdiction does not lie when a federal claim "is so insubstantial, implausible, foreclosed by prior decisions of the Supreme Court, or otherwise completely devoid of merit as not to involve a federal controversy." Southern New England Tel. Co.v. Global NAPs Inc., 624 F.3d 123, 133 (2d Cir. 2010) (internal quotation marks and alterations omitted). The plaintiff's apparent failure to assert any state action in her First Amendment claim suggests that her claim may fall into this category. In light of this, the plaintiff will have twenty-one days from the issuance of this order to show cause as to why this case should not be dismissed for lack of subject matter jurisdiction. Signed by Judge Michael P. Shea on 6/27/2018. (Self, A.)
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| Filing 8 NOTICE TO COUNSEL/SELF-REPRESENTED PARTIES in Transferred Case : Signed by Clerk on 6/26/2018.(Fanelle, N.) |
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Filing 7
STANDING PROTECTIVE ORDER Signed by Judge Michael P. Shea on 6/26/2018. (Fanelle, N.)
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Filing 5
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Michael P. Shea on 6/26/2018. (Oliver, T.)
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| Filing 4 Case electronically transferred in from District of New York Southern; Case Number 1:18-cv-05328. |
| Mailed a copy of #3 Order to L. Lee Whitnum 123 Henry St. Greenwich, CT 06830. (mhe) |
| CASE TRANSFERRED OUT ELECTRONICALLY from the U.S.D.C. Southern District of New York to the United States District Court - District of District of Connecticut (mro) |
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Filing 3
TRANSFER ORDER: The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. The Clerk of Court is further directed to transfer this action to the United States District Court for the District of Connecticut. Whether Plaintiff should be permitted to proceed further without prepayment of fees is a determination to be made by the transferee court. A summons shall not issue from this Court. This order closes the case in the Southern District of New York. The Court certifies, pursuant to 28 U.S.C 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Colleen McMahon on 6/19/2018) (mro)
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| NOTICE OF CASE ASSIGNMENT - SUA SPONTE to Judge Colleen McMahon. Judge Unassigned is no longer assigned to the case. (mro) |
| Transmission to Docket Assistant Clerk. Transmitted re: #3 Order, to the Docket Assistant Clerk for case processing. (mro) |
| Filing 2 COMPLAINT against Hearst Corporation, John Nickerson, Stamford Advocate, Steven R. Swartz, Daniel Tepfer. Document filed by L. Lee Whitnum. (Attachments: #1 Exhibit, #2 Exhibit)(rdz) |
| Filing 1 REQUEST TO PROCEED IN FORMA PAUPERIS. Document filed by L. Lee Whitnum.(rdz) |
| Case Designated ECF. (rdz) |
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