Dolce v. Pezzola
- Lorna Schofield
- 1:23-cv-10049
- U.S. District Court · Southern District of New York
- 6
In Dolce v. Pezzola, Judge Swain dismissed the state-law lawsuit for lack of federal jurisdiction but allowed 30 days to replead.
Seth Dolce, who was proceeding without a lawyer, and the defendants named in his contract-and-tort lawsuit. The dismissal was based on the court’s conclusion that it lacked subject matter jurisdiction, but Dolce was given 30 days to replead.
What happened
In Dolce v. Pezzola, Seth Dolce, representing himself, sued David Pezzola and others over an alleged breach of agreements involving financing for real estate properties. Dolce sought $943,000 and asserted claims involving deceptive business practices, fraud, and interference with a contract.
The court ruled that the complaint did not present a federal-law claim. It also found that diversity jurisdiction was unavailable because Dolce and several defendants were identified as residing in New York. The court dismissed the action for lack of subject matter jurisdiction and allowed Dolce 30 days to file an amended complaint.
Judge Swain said Dolce could try to drop dispensable New York defendants and provide additional facts supporting jurisdiction and his claims. The court also denied permission to appeal without paying fees, finding that any appeal would not be taken in good faith.
The detailed version
- Dolce v. Pezzola · No. 1:23-cv-10049
- Lorna Schofield
- Jan. 8, 2024
Background
Seth Dolce, proceeding without a lawyer, filed an action under the court’s federal-question jurisdiction. He alleged that the defendants entered agreements recognizing him as their agent for obtaining financing for certain real estate properties between 2017 and 2022, then failed to pay him the compensation required by those agreements. He asserted claims described as deceptive business practices, fraud in the inducement, unclean hands, and tortious interference with contract, and sought $943,000.
Jurisdiction
The court explained that federal-question jurisdiction applies when a claim arises under the Constitution, federal laws, or treaties. It concluded that Dolce’s claims were contract and tort disputes arising under state law, so merely invoking federal-question jurisdiction did not establish federal jurisdiction.
The court also considered diversity jurisdiction, which generally requires complete diversity between the parties and more than $75,000 in controversy. Although the amount sought exceeded $75,000, the complaint identified Dolce and several defendants—including Primary Capital Partners, Salvatore Zizza, Rob Zizza, Chris Zizza, Richard Hochman, and Zizza and Associates—as residing in New York. The court therefore concluded that complete diversity was absent. It also stated that Dolce had not alleged sufficient facts about the citizenship of the limited liability company defendants, whose citizenship depends on the citizenship of their members.
Disposition
The court dismissed the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3), with 30 days’ leave to replead. The court granted leave to amend so Dolce could, if the parties were dispensable, drop the New York defendants and allege facts showing that none of the named defendants, including the limited liability companies, resided in New York. Any amended complaint also had to describe each defendant’s specific conduct, how each defendant breached a contract, and where the breach occurred.
The court stated that if Dolce did not amend within the permitted period, the Clerk would be directed to enter judgment. The court also certified that an appeal would not be taken in good faith and denied permission to appeal without prepaying fees. The matter was to remain open on the docket until a civil judgment was entered.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.