Cataldi v. United Water New York , 363 F. App'x 769 ( 2010 )

08-6305-cv
Cataldi v. United Water New York
UNITED STATES COURT OF APPEALS
F OR T HE S ECOND C IRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL .
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2 nd day of February, two thousand and ten.
PRESENT: RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges,
MARK R. KRAVITZ, *
District Judge.
__________________________________________
ROBERT V. CATALDI,
Plaintiff-Appellant,
v. 08-6305-cv
UNITED WATER NEW YORK,
Defendant-Appellee.
__________________________________________
FOR APPELLANT: ROBERT V. CATALDI, pro se, New York,
NY.
FOR APPELLEE: CURTIS GILFILLAN, Bivona & Cohen,
P.C., New York, NY.
Appeal from the United States District Court for the
Southern District of New York (Seibel, J.).
*
The Honorable Mark R. Kravitz, of the United States District Court for the District of Connecticut, sitting
by designation.
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the judgment of the district court is
3 AFFIRMED.
4 Appellant Robert V. Cataldi, pro se, appeals from the
5 judgment of the United States District Court for the Southern
6 District of New York (Seibel, J.), dismissing Appellant’s
7 complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the
8 Federal Rules of Civil Procedure. We assume the parties’
9 familiarity with the underlying facts, the procedural history
10 of the case, and the issues on appeal. In reviewing a
11 district court’s dismissal of a complaint for lack of subject
12 matter jurisdiction pursuant to Rule 12(b)(1), we review
13 factual findings for clear error and legal conclusions de
14 novo, accepting all material facts alleged in the complaint
15 as true and drawing all reasonable inferences in the
16 plaintiff’s favor. See Morrison v. Nat’l Australia Bank
17 Ltd., 547 F.3d 167, 170 (2d Cir. 2008). Similarly, we
18 “review de novo a district court’s dismissal of a complaint
19 pursuant to Rule 12(b)(6), construing the complaint
20 liberally, accepting all factual allegations in the complaint
21 as true, and drawing all reasonable inferences in the
2
1 plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d
2 147, 152 (2d Cir. 2002)
3 Having conducted a de novo review, we find that the
4 district court properly granted Appellee’s motion to dismiss.
5 The district court properly found that it lacked diversity
6 jurisdiction over Appellant’s state law claims. There is no
7 diversity between the parties because Appellant is a New York
8 resident and Appellee is a New York domestic corporation with
9 its principal place of business in New York. See 28 U.S.C. §
10 1332(c).
11 The district court also properly dismissed Appellant’s
12 federal claims. With respect to his Fourth Amendment claim
13 Appellant alleged no facts to suggest that Appellee, a
14 private corporation, acted under color of state law. See
15 Jackson v. Metro. Edison Co., 419 U.S. 345, 349-50 (1974).
16 Nor did Appellant allege that he suffered an injury-in-fact
17 to establish standing. Indeed, he acknowledged that
18 Appellee, at his request, had not placed a remote reading
19 device on his property. See Lujan v. Defenders of Wildlife,
20 504 U.S. 555, 560 (1992) (holding that injury must be “actual
21 or imminent, not conjectural or hypothetical”) (internal
22 quotation marks omitted). Appellant also failed to allege
23 sufficient facts to make out the elements of a RICO
3
1 violation. See 18 U.S.C. § 1962(c). He failed to allege,
2 inter alia, the existence of an “enterprise,” given that “a
3 corporate entity may not be both the RICO person and the RICO
4 enterprise under section 1962(c).” Riverwoods Chappaqua
5 Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (2d Cir.
6 1994).
7 Finally, it was appropriate for the district court to
8 decline to exercise supplemental jurisdiction over
9 Appellant’s state law claims. See 28 U.S.C. § 1367(c)(3);
10 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)
11 (“[I]n the usual case in which all federal-law claims are
12 eliminated before trial, the balance of factors . . . will
13 point toward declining to exercise jurisdiction over the
14 remaining state-law claims.”).
15 For the foregoing reasons, the order of the district
16 court is AFFIRMED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
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