     10-2448-cv
     Pucci v. Brown


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                           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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 31st day of May, two thousand eleven.
 4
 5   PRESENT:         ROBERT D. SACK,
 6                    DEBRA ANN LIVINGSTON,
 7                    GERARD E. LYNCH,
 8                                    Circuit Judges.
 9
10
11   ALFRED C. PUCCI,
12              Plaintiff-Appellant,
13
14            -v.-                                         No. 10-2448-cv
15
16   BARBARA BERISH BROWN,
17            Defendant-Appellee.
18
19
20   FOR PLAINTIFF-APPELLANT:                       Alfred C. Pucci, pro se, Montrose, New York.
21
22   FOR DEFENDANT-APPELLEE:                        No appearance.
23
24
25            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

26   DECREED that the judgment of the district court be AFFIRMED.

27            Plaintiff-Appellant Alfred C. Pucci (“Pucci”), pro se, appeals from a judgment of the United

28   States District Court for the Southern District of New York (Preska, C.J.), entered May 5, 2010, sua
 1   sponte dismissing his complaint for lack of subject matter jurisdiction and, in the alternative, for

 2   failure to state a claim upon which relief may be granted. We assume the parties’ familiarity with

 3   the underlying facts, the procedural history of the case, and the issues on appeal.

 4          We review a district court’s dismissal of a complaint for lack of subject matter jurisdiction

 5   de novo. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79-80 (2d Cir. 2005).

 6   “It is a fundamental precept that federal courts are courts of limited jurisdiction and lack the power

 7   to disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols,

 8   Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (internal

 9   quotation marks omitted).      Here, Pucci’s complaint suggests no basis for federal question

10   jurisdiction, as he is not suing under the Constitution or any federal law. See 28 U.S.C. § 1331. Nor

11   has Pucci pleaded any basis for a federal court to exercise diversity jurisdiction in this matter

12   because, although he and the defendant are alleged to be diverse in citizenship, Pucci has failed to

13   plead any amount in controversy, let alone an amount in excess of $75,000. See, e.g., Lupo v.

14   Human Affairs Int’l, Inc., 28 F.3d 269, 273 (2d Cir. 1994) (“[T]he party asserting diversity

15   jurisdiction in federal court has the burden of establishing the existence of the jurisdictional amount

16   in controversy.”); Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994)

17   (“A party invoking the jurisdiction of the federal court has the burden of proving that it appears to

18   a ‘reasonable probability’ that the claim is in excess of the statutory jurisdictional amount.”).

19          Finally, we decline to remand to the district court to permit the pro se plaintiff to replead.

20   On independent review of the record, “we do not find that the complaint liberally read suggests that

21   the plaintiff has a claim that [ ]he has inadequately or inartfully pleaded and that [ ]he should

22   therefore be given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)


                                                       2
1    (internal quotation marks and citation omitted). While Pucci argues that he “entered into an implied

2    and oral contract” with the Defendant-Appellee for certain services, the documents he himself has

3    provided refute this assertion. The record thus leaves no possibility that Plaintiff could assert a

4    viable claim against this defendant.

5           We have considered all of Plaintiff-Appellant’s remaining arguments and find them to be

6    without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

7

 8                                                        FOR THE COURT:
 9                                                        Catherine O’Hagan Wolfe, Clerk
10




                                                      3
