DENISE COTE, District Judge.
Plaintiff Pedro Almanzar ("Almanzar"), proceeding
The following facts are taken from the SAC and the documents attached to it unless otherwise noted, and assumed to be true for the purposes of this motion.
After he was fired, Almanzar called the unemployment office to retrieve his benefits, but Zam prevented him from receiving those benefits because it alleged that he was fired due to misconduct. An administrative law judge ("ALJ") denied his request for unemployment benefits on July 23, 2008. The ALJ found that Almanzar's misconduct had resulted in his discharge — Almanzar had allegedly been fired after the third day on which he had left the premises of the building at which he worked without notifying Zam. Therefore, the ALJ determined Almanzar was not qualified to receive unemployment benefits under New York Labor Law § 593(3). The Unemployment Insurance Appeal Board upheld the ALJ's decision on December 15, 2008.
On June 24, 2009, Almanzar filed a complaint with the New York State Division of Human Rights. In the SAC, Almanzar does not state what was the resolution of that complaint, but Zam alleges that on January 5, 2010 the Division of Human Rights found there was "[in]sufficient evidence to establish a nexus between [Almanzar] being denied unemployment benefits and [his] race/color." Almanzar's complaint was also filed with the United States Equal Employment Opportunity Commission ("EEOC"), which closed his file because it "adopted the findings of the state or local fair employment practices agency that investigated this charge." The EEOC Dismissal and Notice of Rights letter was issued August 12, 2010.
Almanzar filed this action on February 14, 2011, asserting an employment discrimination claim under Title VII. On March 9, Chief Judge Loretta A. Preska ordered Almanzar to amend his complaint within sixty days, as the original complaint did not allege facts sufficient to support his allegations of discrimination.
Almanzar filed an amended complaint on April 8. In the amended complaint, Almanzar alleged only a violation of the New York State Human Rights Law, having declined to check the line that would indicate he also asserted a claim under Title VII. On July 5, Zam filed a motion to dismiss the amended complaint, arguing that this Court lacked subject matter jurisdiction over the case and that Almanzar had failed to state a cause of action. In an Order dated July 5, Almanzar was permitted to file a second amended complaint to address the deficiencies identified in Zam's motion to dismiss by August 2. Almanzar was informed that this would be his last opportunity to amend his complaint to address these deficiencies.
Almanzar filed the SAC on July 26, again alleging only a claim under the New York State Human Rights Law. Zam filed this motion to dismiss on September 19. Almanzar failed to file an opposition by October 14, and as of the date of this Opinion, has not filed anything further with the Court.
Zam has moved to dismiss the complaint for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). "Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."
There is no question that there is not diversity jurisdiction in this case. Almanzar alleged that he is a resident of New York and that Zam is located in New York.
On the face of the complaint, Almanzar has also not alleged a claim raising a federal question. Although his first complaint stated a claim under Title VII, both the amended complaint and the SAC allege only a state law claim. Even when this deficiency was pointed out in Zam's motion to dismiss the amended complaint, Almanzar persisted in not alleging a Title VII claim or any other federal claim in the SAC.
But even if Almanzar's complaint was construed liberally to include a Title VII claim, and therefore to raise a federal question, this Court would still lack subject matter jurisdiction due to the
Zam's September 19, 2011 motion to dismiss is granted. The Clerk of the Court is directed to enter judgment for Zam and to close the case. 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