Evans v. Bongiorno

Background

Norma D. Evans, proceeding without a lawyer and having been allowed to proceed without paying the filing fee, sued Joseph R. Bongiorno, Esq., and Joseph R. Bongiorno & Associates, P.C. Evans alleged that Bongiorno, who had represented her in two lawsuits—one in New York State Supreme Court, Westchester County, and one in the federal court—committed legal malpractice, theft, and ethical violations. She requested sanctions and compensatory damages of $400,000, or an amount the court considered appropriate.

Jurisdiction

The court examined whether it had authority to hear the case. Evans invoked federal-question jurisdiction under 28 U.S.C. § 1331, but the court found that she did not identify any federal law claim and that her allegations did not arise under federal law.

The court also considered diversity jurisdiction under 28 U.S.C. § 1332. Diversity jurisdiction generally requires the parties to be citizens of different states and the amount in controversy to exceed $75,000. The court found that Evans’s complaint indicated that she and the defendants were in New York, which prevented complete diversity.

Criminal allegations

To the extent Evans accused the defendants of crimes, the court held that she could not initiate or control a criminal prosecution. The decision to prosecute belongs to prosecutors, not private individuals. The court therefore concluded that Evans failed to state a claim based on any attempt to privately prosecute the defendants.

Disposition

The court dismissed the complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3). It denied leave to amend because the defects could not be cured by amendment. The court also certified that any appeal would not be taken in good faith and denied Evans permission to proceed without paying fees for purposes of an appeal. The opinion does not state that the dismissal was with or without prejudice.