Cataldi v. United Water New York ( 2010 )


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  •           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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