06-3253-cv

G e o r g e v. JP Morgan Chase Manhattan Bank

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RU L IN G S BY SUMMARY ORDER DO NOT H A V E PRECEDENTIAL EFFECT. CITATION TO SUMMARY O R D E R S FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND FEDERAL

RU L E OF APPELLATE PROCEDURE 32.1. IN A BR I E F OR OTH E R PAPE R IN WHICH A LITIGANT CITES A SUMMARY

O R D E R , IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION M U S T EITHER BE TO THE

FE D E R A L APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER

O R D E R IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE

(S U C H AS THE DATABASE AVAILABLE AT HTTP://W W W .C A 2.U S C O U R T S .G O V /), THE PARTY CITING THE SUMMARY

O R D E R MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE

IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A

S U M M A R Y ORDER IS CITED.

D A T A B A S E , THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE

I N WHICH THE ORDER W A S ENTERED.

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 3rd

day of April, two thousand and seven.

PRESENT:

HON. ROBERT D. SACK,

HON. SONIA SOTOMAYOR,

Circuit Judges,

HON. JED S. RAKOFF, District Judge.* Charles George, Plaintiff-Appellant, -v.- No. 06-3253-cv JP Morgan Chase Manhattan Bank, Defendant-Appellee. Charles George, pro se, Brooklyn, NY Appearing for Plaintiff-Appellant: Appearing for Defendant-Appellee: Peter R. Bonchonsky, Pittoni, Bonchonsky & Zaino, LLP, Garden City, NY UPON DUE CONSIDERATION, of this appeal from a judgment entered in the United States District Court for the Eastern District of New York (Dora L. Irizarry, J.), it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court be and it is hereby AFFIRMED.

Appellant Charles George, pro se, appeals from the judgment of the United States District Court for the Eastern District of New York (Dora L. Irizarry, J.) entered on June 7, 2006, sua sponte, dismissing the plaintiff's complaint for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P.

12(h)(3). We assume the parties' familiarity with the facts and procedural history of the case and the issues on appeal.

This Court reviews rulings on subject matter jurisdiction de novo, see S.E.C. v. Berger, 322 F.3d 187, 191 (2d Cir. 2003), and we construe a pro se plaintiff's complaint liberally as raising the strongest argument it suggests, see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Having done so, we conclude that the plaintiff did not allege facts sufficient to establish subject matter jurisdiction. He did not demonstrate that his claims raised a "federal question" because, although his complaint referred to discrimination based on race, it did not contain any specific allegations of fact that supported an inference of discrimination. See 28U.S.C. § 1331. And his complaint did not allege diversity of citizenship. See id. § 1332. When given an opportunity to amend his complaint to allege facts sufficient to demonstrate that there was federal jurisdiction over his claims under 28 U.S.C. 1331 or § 1332, George declined to do so.** ** We note that because we dismiss this action for lack of subject matter jurisdiction, under New York law George may be entitled to commence in state court a new action arising from the circumstances or occurrences alleged in this action. See N.Y. C.P.L.R. § 205(a) ("If an For the foregoing reasons, the judgment of the district court is therefore hereby AFFIRMED.

FOR THE COURT: T h o m a s Asreen, Acting Clerk By: action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.").

* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.