          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

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