The Honorable Mark R. Kravitz, of the United States District Court for the District of Connecticut, sitting

*

by designation.

08-6305-cv

Cataldi v. United Water New York

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.

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 day of February, two thousand and ten. nd

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.).
2

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
3

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
4

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

20