Case Information
*1 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JUPITER CAPITAL PARTNERS LLC AS
ASSIGNEE OF STAN STUCCO, INC.,
Plaintiff,
MEMORANDUM AND ORDER - against - 07-CV-3499 (DRH) (AKT) DELEONARDO CONSTRUCTION, INC.,
RALPH DELEONARDO and NOAM
SOKOLOW,
Defendants.
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A P P E A R A N C E S :
Richard Sokoloff, Esq.
Attorney for Plaintiff
3245 Route 112, Suite 1
Medford, New York 11763
Law Offices of Michael Samuel
Attorneys for Defendant Noam Sokolow
The Empire Corporate Center
25 Philips Parkway
Montvale, New Jersey 07645
By: David Stein, Esq.
HURLEY, Senior District Judge :
By letter dated November 14, 2007, defendant Noam Sokolow requests permission to file a motion to dismiss plaintiff’s complaint based on, inter alia, a lack of subject matter jurisdiction. To date, plaintiff has not responded.
“[T]he Court may examine subject matter jurisdiction, sua sponte , at any stage of the proceeding.” See Franceskin v. Credit Suisse , 214 F.3d 253, 257 (2d Cir. 2000) (citations and internal quotation marks omitted); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Here, jurisdiction is premised upon diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Compl. ¶ 5.) *2 The diversity jurisdiction statute provides in relevant part:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between – (2) citizens of a State and citizens or subjects of a foreign state.
28 U.S.C. § 1332(a)(2). Although it is well-established that allegations of residency alone cannot establish citizenship, see Canedy v. Liberty Mutual Ins. Co. , 126 F.3d 100, 103 (2d Cir. 1997), plaintiff’s Complaint merely alleges that defendant Noam Sokolow “resides” in New Jersey. Similarly, while a corporation is a citizen of both the state in which it is incorporated and the state in which it has its principal place of business, see 28 U.S.C. § 1332(c), the Complaint informs us of neither with regard to any of the corporate parties. In addition, on its face, the Complaint states a claim for only $31,900. See 28 U.S.C. § 1332(a) (requiring amount in controversy to exceed $75,000). The Complaint therefore fails to allege diversity jurisdiction and is therefore dismissed.
A failure to allege facts establishing jurisdiction need not prove fatal to a complaint. By statute, “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” 28 U.S.C. § 1653. Accordingly, Plaintiff is granted 30 days to file and serve an amended complaint. If upon the expiration of thirty days, Plaintiff has not filed an *3 amended complaint, this action will be closed.
SO ORDERED.
Dated: Central Islip, New York
January 23, 2008 /s Denis R. Hurley United States District Judge