MEMORANDUM DECISION AND ORDER
BRIAN M. COGAN, District Judge.
Plaintiff Kecia Kemp, proceeding pro se, brings this action for attorney malpractice, seeking only punitive damages. Plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted. For the reasons discussed below, the complaint is dismissed and plaintiff is granted 20 days leave to file an amended complaint.
Plaintiff brings this action against attorney Chauncey Henry ("Henry"), who represented her in an action before this Court for employment discrimination and retaliation under Title VII, the Family and Medical Leave Act, and corresponding provisions of New York State law.
On February 4, 2017, I granted defendant's motion to dismiss the prior action with prejudice as to the federal claims and without prejudice as to the state law claims. It is clear from the instant complaint that plaintiff was dissatisfied with the outcome of the prior action and Henry's representation of her in that action. She claims that Henry did not attempt to communicate with her about her case, submitted papers to the Court without notifying her or seeking her approval, and failed to properly advise her as to appropriate steps she could take to pursue her case. Plaintiff also states that Henry had access to her bank account pursuant to the parties' engagement agreement, but that Henry "went into her bank account" without authorization on two occasions.
In the instant action plaintiff is seeking $300,000 in punitive damages due to Henry's "lack of representing my case, misleading me to think that I was late filing my case and that I was not providing documents in timely matter [sic] which is fabrication to what I submitted through the court prior to retaining Mr. Henry."
Although plaintiff is proceeding pro se, and her complaint is held to less stringent standards than pleadings drafted by lawyers,
Federal subject matter jurisdiction exists only where the action presents a federal question pursuant to 28 U.S.C. § 1331, or where there is diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Plaintiff does not allege a basis for jurisdiction, but it is clear from the complaint that the Court has neither federal question nor diversity jurisdiction. The factual allegations in the complaint purely state a claim for legal malpractice, which is a matter of state law over which this Court does not have federal question jurisdiction.
Although it appears that diversity of citizenship exists, as plaintiff is a citizen of Virginia and Henry is a citizen of New York, plaintiff has not remotely met her burden to establish that she can recover more than or even close to $75,000 in this action.
However, "[b]efore determining that the amount in controversy requirement has not been met, the court must afford plaintiff the opportunity to show good faith in believing that a recovery in excess of [$75,000] is reasonably possible."
The complaint is dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3). Plaintiff is granted 20 days leave to file an amended complaint. Plaintiff is advised that an amended complaint does not simply add to the first complaint; it completely replaces the original complaint. Therefore, plaintiff must include in the amended complaint all the necessary information that was contained in the original complaint. The amended complaint must be captioned as "Amended Complaint" and bear the same docket number as this order.
If plaintiff fails to comply with this Order within the time allowed, judgment shall enter. No summons shall issue at this time and all further proceedings shall be stayed for 20 days. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal.