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Because the record does not support the Court's original jurisdiction over the diversity claim or the ERISA claims, the Court need not address the question of its supplemental jurisdiction over the state law claim. See 28 U.S.C. § 1367; Nowak, 81 F.3d at 1188. Assuming arguendo that the Funds are ERISA "plans," for the foregoing reasons Plaintiffs have not established jurisdiction under ERISA.
Thus, if Okpaku may be named as a defendant while maintaining diversity jurisdiction, so may Civiletis. (Compl., ECF No. 1.) On February 24, 2012, the state-claim Defendants moved to dismiss on the grounds that the Court lacked subject-matter jurisdiction over the claim asserted against them. (ECF No. 16.) For the following reasons, the Court dismisses the action for lack of subject-matter jurisdiction. All significant new filings across U.S. federal district courts, updated hourly on business days. Plaintiffs also allege that "at all relevant times hereto, Darcelle Duncan [a/k/a] Darcelle Okpaku and Bayo Okpaku were residents of New Jersey." (Compl. ¶ 8.) These allegations of residency are "insufficient to establish citizenship" for diversity purposes, Canedy v. Liberty Mut. Co., 126 F.3d 100, 103 (2d Cir. 1997), because "a statement of residence, unlike domicile, tells the court only where the parties are living and not of which state they are citizens." John Birch Soc.
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Id. at 517; see Fludgate v. Mgmt. Techs., Inc., 855 F.Supp. 645, 647 (S.D.N.Y. 1995). The notification letter to the potentially impacted individuals includes steps that they can take to protect their information. In order to address a ny concerns and mitigate any exposure or risk of harm following this Incident, JMPA has arrange d for complimentary credit monitoring services and identity theft protection services to all potentially impacted individuals at no cost to them for a period of twelve months. JMPA recommends that individuals enroll in the services provided and follow the recommendations contained within the notification letter to ensure their information is protected.
The federal courts are of limited subject-matter jurisdiction, see Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 , and "here are no presumptions in favor of the jurisdiction of the courts of the United States." Ex parte Smith, 94 U.S. 455, 456 . Rather, " plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). While "all material factual allegations in the complaint" must be accepted as true, Shipping Fin.
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Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) , "urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) . In deciding a 12 motion, the Court "may consider materials extrinsic to the complaint." Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12 when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1986). In addition, "ederal courts have an independent obligation to raise and decide jurisdictional questions that the parties either overlook or elect not to press." MLC Fishing, Inc. v. Velez, 667 F.3d 140, 143 (2d Cir. 2011) .
Federal Rule of Civil Procedure 12 requires that "f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." For the foregoing reasons, Plaintiffs' Complaint is dismissed without prejudice. Plaintiffs have thirty days from entry of this order to file an amended complaint. The Clerk of Court is directed to terminate the motion at docket number 16. "It is well settled that the essential elements of diversity jurisdiction must be affirmatively alleged in the pleadings." Hodas v. Lindsay, 431 F.Supp.
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Plaintiffs are reminded that while an amended complaint can address "defective allegations of jurisdiction," 28 U.S.C. § 1653, it cannot fix "defects in the jurisdictional facts themselves," Newman-Green Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 . The general rule remains that a plaintiff cannol "amend its complaint to substitute a new cause or action over which there is subject-matter jurisdiction for one in which there is not." Advani Enter., Inc. v. Underwriters at Lloyds, 140 F.3d 157, 161 (2d Cir. 1998) (citing Pressroom Unions, 700 F.2d at 893). No evidence in the record contradicts Defendants' averment that Civiletis International is a sole proprietorship whose proprietor is Okpaku. As such, its citizenship for diversity purposes is the same as that of Okpaku.
637, 640 (S.D.N.Y. 1977) (citing Hodgson v. Bowerbank, 9 U.S. 303 ). Absent allegations as to the entity status and citizenship of the Funds, or their occasionally alluded-to "trustees," the Court cannot determine whether it has diversity jurisdiction over the state law fraud claim. Accordingly, the Court dismisses this claim against all Defendants for lack of subject-matter jurisdiction. While the current record before the Court is insufficient, Plaintiffs are hereby permitted to amend their Complaint to properly demonstrate this Court's subject-matter jurisdiction.
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JMPA has no evidence indicating misuse of this information. However, out of an abundance of caution, JMPA is providing notification to all potentially impacted individuals, regardless of the information not being subject to unauthorized access and/or acquisition. PitchBook provides insight into a limited partner’s preferred investments, including actual and target allocations by strategy, secondary market preferences and interest in first-time funds. District Council 1707 Local 389 Home Care Employees Pension Fund (DC 1707 Local 389 Home Care and Prof. Employees Pension Fund) is a multi employer-union pension fund based in New York, New York.
On or about February 24, 2022, JMPA discovered that a hard drive sent via UPS containing DC37 Local 389 Home Care Employees Health & Welfare Fund (the “Local 389 Health Fund”) files was lost by UPS. JMPA has been working with UPS to locate the missing hard drive and identify what happened. JMPA concluded its initial investigation and determined the incident involved personal and protected health information of Local 389 Health Fund’s fund participants.
Durant, 565 F.3d at 64. State-claim Defendants Bayo Okpaku, Darcelle Duncan, and Civiletis International moved pursuant to Rule 12 to dismiss the claim against them for lack of federal subject-matter jurisdiction. The state-claim Defendants allege that diversity is lacking because Civiletis International is a sole proprietorship registered in New York, thus defeating the complete diversity of the parties as Plaintiffs are located in New York. On December 5, 2011, Strayhorn filed a counterclaim against Plaintiffs, alleging the Funds' trustees breached a fiduciary duty by hiring the "unqualified" Strayhorn and failing to provide her with any training, supervision, guidance, or oversight. Vaden v. Discover Bank, 556 U.S. 49, 60 (citing Holmes Grp., Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 832 ).
Co., 377 F.2d 194, 199 (2d Cir. 1967). Under New York law, a person conducting business under an assumed name, "other than a corporation, limited partnership or limited liability company," must file a certificate at the county clerk's office, N.Y. § 130, which Defendants' documentation indicates Okpaku did in 1983. Section 1132 of ERISA is "an exclusive jurisdictional grant" to the plaintiffs named in Section 1132, and the Court lacks jurisdiction over claims brought by other, non-enumerated plaintiffs.
Accordingly, the Court dismisses the ERISA claims against Strayhorn for lack of subject-matter jurisdiction. The Complaint further asserts diversity jurisdiction based on allegations that Strayhorn, Duncan, and Okpaku "are citizens of the state of New Jersey and/or a foreign state,"6 and that "the Plaintiff Funds are located in and have their principal places of business in the State of New York[.]" (Compl. ¶ 3). Accordingly, the Court reads the Complaint to identify only the Funds as the plaintiffs in this action, and examines the asserted subject-matter jurisdiction on that basis. ERISA "comprehensively regulates employee welfare benefit plans that, through the purchase of insurance or otherwise, provide medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability or death." Arnold v. Lucks, 392 F.3d 512, 514 n.1 (2d Cir. 2004). ERISA applies to any "employee welfare benefit plan" as defined in 29 U.S.C. § 1002, with certain exceptions, defined in 29 U.S.C. § 1003. The Court must "satisfy itself that ERISA applies to the at-issue benefits plan in such a case" when determining whether it has jurisdiction.
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