Gencarelli v. AP&G Co., Inc. et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JAMES GENCARELLI,
Plaintiff,
v. 	1:25-CV-0215
(GTS/DJS)
AP&G CO., INC., doing business as Catchmaster;
WOODSTREAM CORPORATION doing business
as Victor; and BELL LABORATORIES, INC.,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
JAMES GENCARELLI
Plaintiff, Pro Se
510 Broadway
Saratoga Springs, NY 12866
TARTER KRINSKY & DROGIN LLP 	MICHAEL J. GRUDBERG, ESQ.
Counsel for Defendant AP&G
1350 Broadway
New York, NY 10018
BARCLAY DAMON LLP 	MICHAEL J. MURPHY, ESQ.
Counsel for Defendant Woodstream 	KARA L. BAKER, ESQ.
80 State Street
Albany, NY 12207
VOUTE, LOHRFINK, McANDREW & 	EVAN J. LYMAN, ESQ.
MEISNER LLP
Counsel for Defendant Bell
170 Hamilton Avenue, Suite 315
White Plains, NY 10601
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
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Currently before the Court, in this product liability action filed by James Gencarelli
(“Plaintiff”) against AP&G Co., Inc. (“AP&G”), Woodstream Corporation (“Woodstream”), and
Bell Laboratories, Inc. (“Bell”) (collectively “Defendants”), are the following seven motions: (1)
Plaintiff’s letter-motion requesting that the Court accept his late filing of a verified statement; (2)
Plaintiff’s letter-motion seeking to consolidate each of the three actions against Defendants
pursuant to Fed. R. Civ. P. 42(a);1 (3) Plaintiff’s motion for leave to file a Third Amended
Complaint pursuant to Fed. R. Civ. P. 15(a)(2); (4) Plaintiff’s motion for preliminary injunction
pursuant to Fed. R. Civ. P. 65; (5) Defendant Woodstream’s motion to dismiss Plaintiff’s Second
Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6); (6)
Defendant Bell’s motion to dismiss Plaintiff’s Second Amended Complaint for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6); and (7) Defendant AP&G’s motion to dismiss the
Second Amended Complaint for lack of subject-matter jurisdiction pursuant to Fed. Civ. P.
12(b)(1) and failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. Nos. 17, 26, 36,
40, 41, 43, 44.) For the reasons set forth below, Defendant AP&G’s motion to dismiss for lack
of subject-matter jurisdiction is granted based on Plaintiff’s failure to establish the existence of
complete diversity among the parties; Plaintiff’s motion to amend and motion for a preliminary
injunction are denied as futile; Plaintiff’s Second Amended Complaint is dismissed without
prejudice for lack of subject-matter jurisdiction; and all the other pending motions are therefore
denied as moot.
1 	The Court notes that this motion appears to have been filed as a result of the pro se
Plaintiff’s misunderstanding about the consolidation mechanism. Plaintiff filed a single action
against all three Defendants and therefore there are no three actions to consolidate. As a result,
Plaintiff’s letter-motion to consolidate is denied.
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I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Second Amended Complaint
Plaintiff filed the original Complaint in this action on February 14, 2025. (Dkt. No. 1.)
He subsequently filed an Amended Complaint as a matter of course on February 19, 2025. (Dkt.
No. 5.) On February 26, 2025, he filed a request for leave to file a Second Amended Complaint,
which this Court granted on March 3, 2025, and the Second Amended Complaint was filed also
on that date. (Dkt. Nos. 7, 8, 10.) Although Plaintiff has a pending motion for leave to file a
Third Amended Complaint,2 such leave has not been granted by this Court (as explained below
in Part III of this Decision and Order), and so the Second Amended Complaint is the operative
pleading in this action. (Dkt. No. 36.)
Generally, in his Second Amended Complaint, Plaintiff asserts six claims all based on the
Defendants’ alleged manufacture and marketing of glue traps designed to be used for pest
control, as well as on physical injuries he allegedly suffered while attempting to free animals
ensnared in those traps: (1) a claim of negligence against all Defendants; (2) a claim of public
nuisance against all Defendants; (3) a claim of deceptive practices pursuant to New York Gen.
2 	Plaintiff also appears to have attempted to file a motion for leave to file a Fourth
Amended Complaint after briefing on all the relevant pending motions had been completed
(despite the fact that the Court has not yet ruled on his already pending motion to file a Third
Amended Complaint). (Dkt. No. 58.) However, even if the Court were inclined to consider this
motion (which it is not), permitting the amendments contained within the proposed Fourth
Amended Complaint would not cure the defects identified below in this Decision and Order,
namely the failure to establish the existence of either federal-question or diversity jurisdiction.
Notably, although Plaintiff now alleges in that proposed Fourth Amended Complaint that
Defendant AP&G is “a North Carolina corporation,” this baseless allegation is still contradicted
by the information provided by Defendant AP&G showing that it is in fact incorporated in New
York, which destroys complete diversity in this case.
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Bus. L. § 349 against all Defendants; (4) a claim of breach of the implied warranty of
merchantability against all Defendants; (5) a claim of breach of express warranty against all
Defendants; and (6) a claim of strict product liability against all Defendants. (Dkt. No. 10.)
B. 	Parties’ Briefing on Defendants’ Motions to Dismiss3
1. 	Defendant Woodstream’s Memorandum of Law
Generally, in its motion to dismiss, Defendant Woodstream makes two arguments. (Dkt.
No. 41, Attach. 1.) First, Defendant Woodstream argues that Plaintiff lacks standing to bring any
claims on behalf of animals. (Id. at 9-11.) Specifically, Plaintiff has not alleged standing as to
any injury he himself incurred, because he has not alleged that he purchased any glue trap, nor
has he alleged any specifics about the injuries caused by the traps or which specific Defendant
manufactured the trap(s) by which he was purportedly injured, and his assertion that animals
were injured by the traps is insufficient to allege a personal injury. (Id.)
Second, Defendant Woodstream argues that the Second Amended Complaint does not
state any claim upon which relief can be granted. (Id. at 11-25.) More specifically, Defendant
Woodstream argues as follows related to the specific claims: (a) Plaintiff has not stated a
negligence claim, because he has not alleged any viable duty owed to him, has not identified
which traps he was injured by or whether he ever purchased or used such trap, and has not
3 	The Court will not summarize the arguments set forth in Plaintiff’s letter-motion to
consolidate, motion to amend his Second Amended Complaint, or motion for preliminary
injunction because, as stated earlier, the Court has concluded that it lacks subject-matter
jurisdiction over this action. It has summarized the arguments set forth in the motions filed by
Defendant Woodstream and Defendant Bell only because (1) the reply memoranda on those
motions contain arguments regarding jurisdiction, and (2) the Court relies on certain of the
arguments initially set forth by Defendant Woodstream and Defendant Bell as an alternative
ground for dismissal.
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alleged how a warning would have prevented the injury here; (b) Plaintiff has not stated a claim
for public nuisance, because he has not alleged any specialized injury he suffered related to the
glue traps and has not alleged any non-conclusory endangerment or injury to the property, health,
safety, or comfort of a considerable number of people related to the glue traps; (c) Plaintiff has
not stated a claim for deceptive practices pursuant to New York Gen. Bus. L. § 349, because he
fails to allege that Defendant Woodstream made any misrepresentative statement or took any
misrepresentative action, that he ever purchased any relevant glue trap product, or that he
suffered a qualifying injury as a result of some misleading practice; (d) Plaintiff has not stated a
claim for breach of the implied warranty of merchantability, because he has not alleged that he
purchased a relevant glue trap and he has not alleged that the glue traps were defective or unfit
for their ordinary purpose; (e) Plaintiff has not stated a claim for breach of express warranty,
because he has not alleged that he purchased a relevant glue trap or that he relied upon any
written or oral affirmation of fact made by Defendant Woodstream, and he has not alleged how
the products’ functioning deviated from any warranty; and (f) Plaintiff has not stated a claim for
strict liability, because he has not alleged any defect related to how the product operated, nor has
he alleged what specific product even caused the alleged injury, that the product could be
designed in a safer manner, or that any risk of harm to people and non-pest animals was not so
obvious that it would require a warning (much less that any warnings given were somehow
insufficient when considering the level of risk presented). (Id.)
2. 	Defendant Bell’s Memorandum of Law
Generally, in its motion to dismiss, Defendant Bell makes seven arguments. (Dkt. No.
43, Attach. 2.) First, Defendant Bell argues that Plaintiff’s Second Amended Complaint should
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be dismissed as a result of its use of impermissible group pleading in violation of Fed. R. Civ. P.
8, because he has failed to articulate with any clarity which Defendant manufactured, marketed,
or sold the specific glue trap that caused his alleged injuries. (Id.at 9-10.)
Second, Defendant Bell argues that Plaintiff has failed to state a claim for any product
liability cause of action. (Id. at 11-19.) More specifically, Defendant Bell argues the following:
(a) Plaintiff has not stated a claim related to a manufacturing defect, because he has not alleged
that the specific product that injured him was defective or that its manufacture deviated from the
usual process (and in fact has not even alleged what that product was other than a glue trap), and
any injury he sustained from attempting to voluntarily free an animal from a trap is too remote to
constitute proximate cause; (b) Plaintiff has not stated a claim related to a design defect, because
he has not alleged the existence of a safer feasible design, has not identified what feature poses
an unacceptably high risk of harm, and has not alleged any specific design defect much less that
such defect proximately caused his injuries; (c) Plaintiff has not stated a claim related to failure
to warn, because he has not alleged how any warnings (or lack thereof) were insufficient to
encompass the alleged danger or that such lack of warning proximately caused his injuries; and
(d) Plaintiff has not stated any claim for a breach of warranty, because he has not alleged any
express representation that induced him to purchase a relevant product and has not alleged that
the products were not fit for the ordinary purpose for which they are used (i.e. trapping rodents
and other pests).
Third, Defendant Bell argues that Plaintiff lacks standing to bring a public nuisance
claim, because he is a private litigant and has failed to allege that he has suffered any special
injury beyond that suffered by the community at large. (Id. at 19-20.)
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Fourth, Defendant Bell argues that Plaintiff has not stated a claim pursuant to New York
Gen. Bus. L. §§ 349 or 350, because he has not identified any misleading or deceptive statement
or action by Defendants, has not alleged that he relied on any such statements or acts, and has not
even alleged that he ever purchased a glue trap. (Id. at 20-22.)
Fifth, Defendant Bell argues that Plaintiff lacks standing to seek injunctive relief, because
he has not alleged a risk of any real or immediate future injury and, to the extent he seeks a
nationwide injunction, he has not brought this action as a class action. (Id. at 22-23.)
Sixth, Defendant Bell argues that Plaintiff’s Second Amended Complaint should be
dismissed based on the statute of limitations because he has not alleged the date on which any
alleged injuries occurred and therefore it is not clear whether his claims are timely. (Id. at 24.)
Seventh, Defendant Bell argues that Plaintiff should not be granted further leave to
amend his Second Amended Complaint, because he has failed to correct the pleading
deficiencies in his original Complaint through any of his successive amendments and instead has
merely added more Defendants, and he has a history of engaging in vexatious and unmeritorious
litigation. (Id. at 24-27.) Defendant Bell additionally requests that this Court issue a pre-filing
injunction against Plaintiff to prevent him “from filing further pleadings, motions, or amended
complaints in this action, and from initiating any future lawsuits in this or any other federal court
without first obtaining leave of court.” (Id. at 26-27.)
3. 	Defendant AP&G’s Memorandum of Law
Generally, in its motion to dismiss, Defendant AP&G makes four arguments. (Dkt. No.
44, Attach. 1.) First, Defendant AP&G argues that the Second Amended Complaint must be
dismissed, because it does not establish diversity jurisdiction given that Defendant AP&G is a
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New York corporation and, as a result, complete diversity does not exist in this case. (Id. at 10-
11.)
Second, Defendant AP&G argues that Plaintiff has failed to state a claim upon which
relief can be granted as to any of his asserted causes of action. (Id. at 11-21.) More specifically,
Defendant AP&G argues the following as to each of those causes of action: (a) Plaintiff has not
stated a claim for negligence, because he has not alleged which specific product from which
Defendant actually caused his alleged injuries, and has not alleged how any Defendant failed to
exercise reasonable care, that any product was defective, or that the warnings provided about
potential dangers of the glue traps were actually insufficient; (b) Plaintiff has not stated a claim
of public nuisance, because he has not substantiated any generic assertions that glue traps pose
an unreasonable risk to public health and safety, he has not alleged any negligent conduct by
Defendants, and he has not alleged any injury he has suffered beyond the injury allegedly
inflicted upon the public at large; (c) Plaintiff has not alleged a concrete and particularized
physical injury, because his allegations on that point are vague and do not indicate when he was
injured, what product injured him, or the damages resulting from such injury; (d) Plaintiff has
not stated a claim pursuant to New York Gen. Bus. L. § 349, because he has not alleged that he
purchased any relevant product (much less which specific one he purchased) or that he was
induced to make that purchase by (or even was exposed to) a misrepresentation by Defendant
AP&G; (e) Plaintiff has not stated a claim for breach of the implied warranty of merchantability,
because he has not provided Defendant AP&G with pre-suit notice of any alleged breach and he
has not alleged that the relevant glue traps are not fit for their intended purpose; (f) Plaintiff has
not stated a claim for breach of express warranty, because he has again not provided any pre-suit
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notice; and (g) Plaintiff has not stated a claim for strict liability because he has not alleged that
the product was defective and has not plausibly alleged that the warnings provided regarding the
use and potential dangers of the glue traps were insufficient as a legal matter. (Id.)
Third, Defendant AP&G argues that Plaintiff lacks standing to assert any of his claims,
because his generalized allegation that he was injured attempting to free an animal from a glue
trap is not supported by any particularized facts and he cannot assert standing based on a generic
interest in animal welfare. (Id. at 21-23.)
Fourth, Defendant AP&G argues that permitting further amendment in this case would be
futile, because the proposed amendments do not correct the many deficiencies in Plaintiff’s
Second Amended Complaint. (Id. at 23.)
4. 	Plaintiff’s Combined Opposition Memorandum of Law
Generally, in his combined opposition to all three Defendants’ motions, Plaintiff makes
eleven arguments. (Dkt. No. 48.) First, Plaintiff argues that he has standing to pursue all of his
claims, because “[t]he critical question is whether the matter affects the public interest in New
York, not whether the individual plaintiff relied on a deceptive practice,” and here he “[s]eeks
equitable relief not for private gain, but to serve the public interest and eliminate animal
suffering.” (Id. at 5.) He also argues that he suffered a concrete and particularized injury in the
form of “a puncture wound sustained while rescuing a trapped black cat from a Catchmaster glue
trap.” (Id. at 9-10.)
Second, Plaintiff argues that his claim pursuant to New York Gen. Bus. L. § 349 is not
insufficient, because that statute does not require that he have purchased the glue trap, but rather
that Defendants engaged in deceptive consumer-oriented conduct that caused injury, which is the
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case here given that Plaintiff has alleged that Defendants marketed the glue traps as “Home and
Family Safe” and his injury as a result of the use of the trap by another person was reasonably
foreseeable. (Id. at 5-6.)
Third, Plaintiff argues that, as to his public nuisance claim, he has alleged a special
injury: he sustained a physical puncture wound while rescuing a trapped cat from a glue trap.
(Id. at 6-7.)
Fourth, Plaintiff argues that he has alleged facts to establish federal question jurisdiction
in this matter, because “Defendants’ glue traps may violate the Federal Insecticide, Fungicide
and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136-136y, which prohibits the distribution of
misbranded or deceptively labeled pesticidal products,” as well as “implicates the Federal Trade
Commission Act (“FTC Act”), 15 U.S.C. § 45(a)(1), which prohibits unfair or deceptive acts or
practices in commerce.” (Id. at 8-9.)
Fifth, Plaintiff argues that he has established standing for a permanent injunction, because
he has alleged facts to plausibly suggest that he will be likely to encounter Defendants’ products
again in the course of preventing harm to wildlife or pets as long as glue traps continue to be
sold. (Id. at 9-10, 12.)
Sixth, Plaintiff argues that he has plausibly stated his relevant claims for the following
reasons: (a) as to his negligence claim, Defendants owed a duty to avoid distributing dangerous
products; (b) as to his public nuisance claim, he has alleged an unreasonable interference with
public health and safety; (c) as to his Section 349 claim, Defendants failed to warn consumers of
foreseeable health and animal welfare dangers and misrepresented the traps as safe and humane;
(d) as to his breach of warranty claim, the packaging for the Catchmaster trap misrepresented
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that it was safe and non-toxic; and (e) as to his strict liability claim, the design of the trap is
“inherently dangerous, indiscriminate, and lacks warnings.” (Id. at 10.)
Seventh, as to his strict liability claim, Plaintiff argues that he was not required to have
purchased the trap himself and it does not matter than he was rescuing an animal rather than
using the trap to catch animals when his injury occurred, because his injuries were a reasonably
foreseeable consequence of the use of the traps based on the unreasonably dangerous design and
the lack of adequate warnings. (Id. at 10-11.)
Eighth, as to his negligence claim, Plaintiff argues that it was foreseeable that an
individual would try to free an animal stuck in one of Defendants’ glue traps and that the
individual might be injured as a result. (Id. at 11.)
Ninth, Plaintiff argues that the Court should not impose any restrictions on his ability to
pursue this or any other litigation without notice and making findings of judicial abuse, and
should consider this case on its merits rather than based on his litigation history. (Id. at 12.)
Tenth, Plaintiff argues that his claims should be permitted to proceed to a jury trial or,
should the Court find his Second Amended Complaint to be deficient, he should be granted leave
to amend. (Id. at 13.)
Eleventh, Plaintiff argues that diversity jurisdiction exists because Defendant AP&G has
not provided sufficient information from which the Court can verify that its principal place of
business is in New York. (Dkt. No. 48, Attach. 1, at 2.) He further argues that he should be
permitted to engage in limited jurisdictional discovery to ascertain the truth of Defendant
AP&G’s citizenship. (Id. at 3.) He additionally argues that Defendant AP&G’s failure to assert
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a lack of personal jurisdiction in its initial motion to dismiss or otherwise contest personal
jurisdiction has waived its right to raise such a challenge now. (Id. at 5-6.)
5. 	Defendant Woodstream’s Reply Memorandum of Law
Generally, in its reply memorandum of law, Defendant Woodstream makes three
arguments. (Dkt. No. 54.) First, Defendant Woodstream argues that Plaintiff cannot rely upon
new theories to oppose the motions to dismiss, including asserting federal question jurisdiction
based on claims pursuant to federal statutes that he has not asserted in the Second Amended
Complaint. (Id. at 6.)
Second, Defendant Woodstream argues that Plaintiff has failed to allege facts to plausibly
state any of his claims. (Id. at 6-11.) As to Plaintiff’s negligence claim, he has not only
confirmed that the trap in question was manufactured by a Defendant other than Defendant
Woodstream, but his reliance on the “rescue doctrine” is misplaced because he was not trying to
rescue another person, but rather an animal, and he has not alleged facts to plausibly suggest the
existence of a duty owed to him by Defendant Woodstream specifically. (Id. at 6-7.) As to
Plaintiff’s public nuisance claim, his physical injury does not suffice to allege a “special injury”
because it is the kind of harm that could theoretically be experienced by anyone else in the
general public and was the result of a voluntary act. (Id. at 7-8.) As to Plaintiff’s Section 349
claim, Plaintiff has admitted that the trap that allegedly injured him was manufactured by
Defendant AP&G, and has not alleged that he actually saw the supposedly false representation
before he suffered the relevant harm. (Id. at 8-10.) As to his claim of breach of implied
warranty, he has not alleged that it was Defendant Woodstream’s product that injured him or that
the trap in question was unfit for its intended purpose and ordinary use. (Id. at 10.) As to his
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claim of breach of express warranty, he has not alleged that any warranties were made related to
the relevant trap specifically by Defendant Woodstream. (Id. at 10-11.) As to his strict liability
claim, again, Plaintiff has not alleged any basis for recovery against Defendant Woodstream for
the manufacture or marketing of the Catchmaster trap. (Id. at 11.)
Third, Defendant Woodstream argues that Plaintiff’s argument that federal question
jurisdiction provides a basis for this action must be rejected, because Plaintiff does not assert any
claims pursuant to FIFRA or the FTC Act in the Second Amended Complaint and he instead
relies solely on state law, and, in any event, neither of those federal statutes provide a private
right of action which would permit Plaintiff to use them as a basis for federal jurisdiction. (Id. at
12-13.) Defendant Woodstream additionally argues that the Court also does not possess
diversity jurisdiction here, because Defendant AP&G is a New York corporation. (Id. at 13.)
6. 	Defendant Bell’s Reply Memorandum of Law
Generally, in its reply memorandum of law, Defendant Bell makes five arguments. (Dkt.
No. 55.) First, Defendant Bell argues that Plaintiff has not plausibly stated any product liability
claims for the following reasons: (a) he has failed to address arguments regarding his
manufacturing defect claim and has failed to allege any facts plausibly suggesting a
manufacturing defect; (b) he has failed to allege any specific design feature that was defective
and caused his injury and has failed to allege the existence of any safer, feasible design; (c) he
has not alleged that Defendant Bell provided any warnings or how such warnings were
inadequate and indeed only makes specific allegations about the Catchmaster trap, which
Defendant Bell did not manufacture or market; (d) he has not attempted to rebut the arguments
about the breach of warranty or merchantability claims and did not provide the required pre-suit
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notice for either of those claims or any allegations regarding representations made by Defendant
Bell, much less that the traps were unfit for their ordinary purpose; and (e) his reliance on the
“rescue doctrine” is misplaced because it does not extend to the rescue of property, including
domestic animals. (Id. at 5-10.)
Second, Defendant Bell argues that Plaintiff has failed to meet any of the requirements to
show entitlement to a preliminary injunction, including because he has not alleged facts to
establish that he has standing to seek such relief given that any assertion of likely future injury is
purely hypothetical and based on Plaintiff’s engagement in voluntary conduct. (Id. at 10-12.)
Third, Defendant Bell argues that Plaintiff has failed to state a claim pursuant to Section
349 because (a) he purchased the Catchmaster trap only after his injury, and (b) he has not
identified any statement by Defendant Bell that was misleading related to that product, and the
language identified is nevertheless puffery that is not actionable and not likely to mislead a
reasonable consumer. (Id. at 12-13.)
Fourth, Defendant Bell repeats its argument that Plaintiff’s Second Amended Complaint
should be dismissed because there are no allegations from which the Court can determine that
the claims here were timely filed. (Id. at 13.)
Fifth, Defendant Bell argues that Plaintiff’s arguments regarding subject-matter
jurisdiction based on unasserted federal claims cannot cure the lack of jurisdiction at the time
this action was initiated, and the federal statutes upon which he relies for purported federal-
question jurisdiction do not confer a private right of action. (Id. at 13-14.)
7. 	Defendant AP&G’s Reply Memorandum of Law
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Generally, in its reply memorandum of law, Defendant AP&G makes eight arguments.
(Dkt. No. 56.) First, Defendant AP&G argues that Plaintiff lacks standing to assert any of the
claims in the Second Amended Complaint, because (a) his assertions that he will continue to
attempt to free animals from glue traps are insufficient to establish a non-speculative likelihood
of future harm, and (b) his assertion that his claims are made in the public interest is insufficient
to allege a concrete injury (Id. at 6-7.)
Second, Defendant AP&G argues that Plaintiff has not stated a claim pursuant to Section
349, because he has failed to allege that he ever viewed any relevant deceptive statement or
purchased the relevant product prior to being injured. (Id. at 7-9, 10.)
Third, Defendant AP&G argues that Plaintiff has failed to state a negligence claim,
because his reliance on the “rescue doctrine” is flawed in that such doctrine applies only to
conduct taken to save another person (not an animal) and requires a preexisting duty that he has
not plausibly alleged here. (Id. at 9-10.)
Fourth, Defendant AP&G argues that Plaintiff has failed to state a claim for public
nuisance, because he has not alleged any harm that is distinct from that which could be
experienced by the community at large. (Id. at 10.)
Fifth, Defendant AP&G argues that Plaintiff has failed to state any breach of warranty or
merchantability claims, because not only does Plaintiff ignore the requirement for pre-suit notice,
but he has not alleged that he was exposed to any express warranty and has not alleged that the
relevant trap was not fit for its ordinary purpose. (Id. at 10-11.)
Sixth, Defendant AP&G argues that Plaintiff has failed to state a claim for strict liability,
because he has failed to allege facts plausibly suggesting any design defect, manufacturing defect
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or inadequate warning and has admitted that his injury occurred when he was attempting to
interfere with the intended functioning of the trap. (Id. at 12.)
Seventh, Defendant AP&G argues that the Court lacks subject-matter jurisdiction,
because (a) the Second Amended Complaint does not assert any claims based on federal law,
including the FIFRA or FTC Act, (b) Defendant AP&G has not waived its right to object to the
lack of jurisdiction because it has raised it in this motion in response to the Second Amended
Complaint, and (c) there is no need for jurisdictional discovery because it is Plaintiff who bears
the burden to show that Defendant AP&G is not a New York corporation in order to establish
jurisdiction for his claims. (Id. at 12-13.)
Eighth, Defendant AP&G argues that Plaintiff’s litigation history is relevant here not as
to the merits of his claims, but rather to demonstrate that he is familiar with how litigation in
federal court proceeds and the requirements he must meet. (Id. at 13.)
II. 	GOVERNING LEGAL STANDARD
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, “[a] case is properly
dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks
the statutory or constitutional power to adjudicate it.” Makarova v. U.S., 201 F.3d 110, 113 (2d
Cir. 2000) (citing Fed. R. Civ. P. 12[b][1]). “In resolving a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the
pleadings.” Makarova, 201 F.3d at 113 (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006,
1011 [2d Cir. 1986]).
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More specifically, “[w]hen . . . a jurisdictional challenge under Fed. R. Civ. P. 12(b)(1) is
addressed to the complaint, a court accepts as true all the factual allegations in the complaint and
must draw all reasonable inferences in favor of the plaintiff.” Lunney v. U.S., 319 F.3d 550, 554
(2d Cir. 2003) (citing, inter alia, Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll.,
128 F.3d 59, 63 [2d Cir. 1997]); see also Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d
635, 638 (2d Cir. 2005) (stating that a district court may properly dismiss a case for lack of
subject matter jurisdiction under Rule 12[b][1] only after “[c]onstruing all ambiguities and
drawing all inferences” in a plaintiff's favor) (citing Makarova, 201 F.3d at 113).
However, when a defendant challenges the factual basis for the plaintiff’s assertion of
jurisdiction, “[j]urisdiction must be shown affirmatively, and that showing is not made [merely]
by drawing from the pleadings inferences favorable to the party asserting it.” Shipping Fin.
Servs. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir.1998); accord, APWU v. Potter, 343 F.3d 619,
623 (2d Cir. 2003); see also Robinson v. Gov’t of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001)
(“In a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the defendant may challenge either
the legal or factual sufficiency of the plaintiff's assertion of jurisdiction, or both. . . . If the
defendant challenges only the legal sufficiency of the plaintiff's jurisdictional allegations . . . , the
court must take all facts alleged in the complaint as true and draw all reasonable inferences in
favor of plaintiff . . . . But where evidence relevant to the jurisdictional question is before the
court, the district court . . . may refer to that evidence.”) (internal quotation marks and citations
omitted).
In such a case, “[a] plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Makarova, 201 F.3d at 113 (citing
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Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]); see also Lunney v. United States, 319 F.3d
550, 554 (2d Cir. 2003) (“Plaintiffs bear the burden of showing by a preponderance of the
evidence that subject matter jurisdiction exists.”) (internal quotation marks omitted).
III. 	ANALYSIS
After carefully considering whether the Court has subject-matter jurisdiction over this
action, the Court answers that question in the negative for the applicable reasons stated by the
Defendants in their memoranda of law. See, supra, Parts I.B.3, 5, 6, and 7 of this Decision and
Order. To those reasons, the Court adds the following analysis.
“‘Subject matter jurisdiction is an unwaivable sine qua non for the exercise of federal
judicial power.’” Windward Bora LLC v. Browne, 110 F.4th 120, 125 (2d Cir. 2024) (quoting
Curley v. Brignoli, Curley & Roberts Assocs., 915 F.2d 81, 83 [2d Cir. 1990]). “Two
requirements must be met for diversity jurisdiction: (1) the amount in controversy in the case
must exceed $75,000 and (2) the case must be between ‘citizens of different States’ or ‘citizens
of a State and citizens or subjects of a foreign state,’ such that there is complete diversity of
citizenship between every plaintiff and every defendant.” Windward Bora LLC, 110 F.4 th at 125-
26 (quoting 28 U.S.C. § 1332[a][1] & [2]). Where the relevant party is a corporation, “both the
state of incorporation and the principal place of business should be considered in deciding
whether diversity jurisdiction is present.” Wm. Passalacqua Builders, Inc. v. Resnick Devs. S.,
Inc., 933 F.2d 131, 141 (2d Cir. 1991); see also 28 U.S.C. § 1332(c)(1) (“a corporation shall be
deemed to be a citizen of every State and foreign state by which it has been incorporated and of
the State or foreign state where it has its principal place of business[.]”).
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Although the parties have raised a plethora of different arguments regarding standing and
the merits of Plaintiff’s various claims, the Court finds that Plaintiff’s Second Amended
Complaint stumbles at the foundational hurdle of establishing the existence of subject-matter
jurisdiction through complete diversity of the parties. Plaintiff explicitly bases jurisdiction in
this case on 28 U.S.C. § 1332, which, as discussed, requires complete diversity between the
parties and an amount in controversy exceeding $75,000. Plaintiff does allege that complete
diversity exists, most relevantly alleging that he is a “resident” of New York4 and that Defendant
AP&G “is a New Jersey corporation with its principal place of business at 75 E. 2nd Street,
Bayonne, NJ 07002.” (Dkt. No. 10, at ¶¶ 7-8.) Defendant AP&G, however, contests this
allegation, asserting instead that it “is a New York corporation and has been registered as such
since 1984.” (Dkt. No. 44, Attach. 1, at 10-11.) In making this assertion, Defendant AP&G
relies upon a declaration of its CEO, Steve Frisch, in which he attests the company is
incorporated under the laws of the State of New York. (Dkt. No. 44, Attach. 2.) The Court also
takes judicial notice, under Fed. R. Evid. 201, of information on the State of New York
Department of State’s Division of Corporations Entity Information website, which shows that
Defendant AP&G is a New York Domestic Business Corporation. Maller v. Rite Aid Corp., 14-
CV-0270, 2016 WL 1275628, at *3 (N.D.N.Y. March 31, 2016) (Suddaby, C.J.) (collecting
cases).5
4 	No reason has been provided to doubt that New York is Plaintiff’s domicile for diversity
purposes.
5 	https://apps.dos.ny.gov/publicInquiry/EntityDisplay (last visited Jan. 27, 2026).
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Notwithstanding Defendant AP&G’s provision of information to establish its place of
incorporation, Plaintiff argues that Defendant AP&G “has not carried its burden of showing
complete diversity of citizenship.” (Dkt. No. 48, Attach. 1, at 2.) Apart from attempting to
inappropriately shift the burden of proving diversity from himself to Defendant AP&G (given
that it is undeniably Plaintiff’s burden to establish the existence of subject-matter jurisdiction),6
Plaintiff also appears to misunderstand the standard for complete diversity by insisting that a lack
of clarity regarding Defendant AP&G’s principal place of business is fatal to its effort to suggest
that diversity does not exist here. It is well established that a corporation defendant can be a
citizen of two different states based on being incorporated in one state and having a principal
place of business in another state and still defeat complete diversity if one of those measures of
citizenship lies within the same state as any of the plaintiffs’ citizenship. See Sty-Lite Co. v.
Eminent Sportswear Inc., 115 F. Supp. 2d 394, 398 (S.D.N.Y. 2000) (noting that Section 1332(c)
“establishes a theory of dual citizenship for corporations and if either the corporation’s place of
incorporation or principal place of business destroys diversity, then the courts will not have
diversity jurisdiction.”); Madden v. Unique Vacations, Inc., 20-CV-5499, 2021 WL 11683633, at
*2 (E.D.N.Y. Feb. 22, 2021) (noting that, where the plaintiff was assumed to be a citizen of New
York, “each Defendant would have to be incorporated and have its principal place of business
elsewhere for diversity to exist”) (emphasis added). In other words, the fact that Defendant
AP&G is incorporated in New York is sufficient to show that it is a citizen of New York for the
6 	See Aurecchione v. Schoolman Transp. Sys. Inc., 426 F.3d 635, 638 (2d Cir. 2005) (“The
plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.”).
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purposes of defeating diversity jurisdiction regardless of whether it might also be a citizen of
another state based on the location of its principal place of business.
Moreover, because Plaintiff has offered no reason to believe that, contrary to the
information provided by Defendant AP&G with its motion, it is not actually incorporated in the
State of New York, there is no basis for conducting jurisdictional discovery. Given that the
Court was able to find documentation of Defendant AP&G’s incorporation status on a publicly
available government website, there is also no basis for an assertion that the information needed
to assess jurisdiction was not readily discoverable to Plaintiff at the time he filed this action such
that court-ordered discovery would be necessary.
Lastly, Plaintiff attempts to salvage this action by asserting in his response memorandum
of law that the Second Amended Complaint also raises “substantial issues under federal law” that
alternatively provide jurisdiction pursuant to 28 U.S.C. § 1331. (Dkt. No. 48, at 8-9.)
Specifically, he alleges that “Defendants’ glue traps may violate” both FIFRA and the FTC Act,
which are federal statutes. (Id.) However, Plaintiff has not asserted claims pursuant to either of
these statutes in the Second Amended Complaint and indeed never mentions any violation of
federal law, asserting only various state law claims. (See generally Dkt. No. 10.) Even if the
Court were to construe this pro se pleading as asserting the strongest claims possible consistent
with its factual allegations (out of special solicitude to Plaintiff as a pro se litigant), claims under
FIFRA and the FTC Act would be unavailable to Plaintiff. 	As Defendants correctly argue in
their memoranda, neither of those statutes provide a private right of action, and thus neither of
those claims would cure the lack of subject-matter jurisdiction. See No Spray Coalition, Inc. v.
City of New York, 351 F.3d 602, 605 (2d Cir. 2003) (noting that “FIFRA does not provide for
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citizen enforcement suits,” and “[s]uch enforcement actions may be brought only by specified
agencies of federal and state governments”); McIver v. Ginger Ale, 24-CV-9102, 2025 WL
1736658, at *1 (S.D.N.Y. June 20, 2025) (“Plaintiff also cannot state a claim under the Federal
Trade Commission Act . . . which prohibits false advertising in products as well, because the
FTC Act does not provide individuals with a private right of action to bring a claim under the
statute.”) (citing Alfred Dunhill Ltd. v. Interstate Cigar Co., 499 F.2d 232, 237 [2d Cir. 1974]).
For the above reasons, the Court finds that (1) it lacks subject-matter jurisdiction over
any of the claims asserted in the Second Amended Complaint, and (2) efforts to amend that
Second Amended Complaint would be futile, because of (a) the information showing that
Defendant AP&G is a citizen of New York,7 and (b) the fact that the federal statutes Plaintiff
would purportedly rely upon to assert federal-question jurisdiction do not provide a private right
of action.
Finally, the Court notes that, although Defendant Bell requests that this Court issue a pre-
filing injunction against Plaintiff “in this or any other federal court” based on his litigation
history (Dkt. No. 43, Attach. 2, at 25-27), the Court is empowered to do so only with regard to
actions filed in this Court (as a pro se litigant). Here, the Court declines to do so, because
7 	The Court notes that it would also be futile to permit Plaintiff to amend his Second
Amended Complaint to remove Defendant AP&G from this action (thus eliminating the lack of
complete diversity) because, apart from that fact that such an amendment would not cure the lack
of jurisdiction that existed at the time this action was filed, Plaintiff himself acknowledges that
the device that caused his physical injury was specifically a Catchmaster glue trap (and that,
based on the information presented here, only Defendant AP&G manufactures and markets that
specific trap), and thus only Defendant AP&G could be said to have been the source of his injury
for purposes of standing. Simply stated, because permitting such an amendment would
necessarily result in the dismissal of Plaintiff’s claims due to a lack of Article III standing, the
Court need not allow that amendment.
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Plaintiff has filed only two such actions in this Court. Plaintiff is respectfully cautioned,
however, that he is fast becoming an abusive litigant.
ACCORDINGLY, it is
ORDERED that Defendants’ motions to dismiss (Dkt. Nos. 41, 43, 44) are GRANTED
in part to the extent that they are based on a lack of subject-matter jurisdiction and otherwise
DENIED as moot to the extent they are based on other grounds; and it is further
ORDERED that Plaintiff’s motions (Dkt. Nos. 17, 26, 36, 40) are DENIED as moot due
to a lack of subject-matter jurisdiction; and it is further
ORDERED that Plaintiff’s Second Amended Complaint is DISMISSED without
prejudice to refiling in state court within the applicable limitations period.
Dated: February 27, 2026
Syracuse, New York
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