Kosh v. Quinn et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CAROLINE KOSH,
Plaintiff,
-against-
BRIAN MICHAEL QUINN AND SALVATORE E.A.
VULCANO
Defendants.
25-CV-04603 (JPO) (RFT)
REPORT & RECOMMENDATION
TO THE HONORABLE J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE:
Plaintiff Caroline Kosh, who is proceeding without a lawyer (pro se), has field an
amended complaint (the “AC”) bringing claims against Defendants Brian Michael Quinn and
Salvatore E.A. Vulcano for fraud, conspiracy to commit fraud, and constructive fraud/fraudulent
inducement. (See generally ECF 8, AC.) She invokes this Court’s diversity jurisdiction. (See id. at
1.) Defendants have moved to dismiss the AC” for lack of subject matter jurisdiction, lack of
personal jurisdiction, improperly laid venue, failure to state a claim, and failure to comply with
Rules 8 and 10 of the Federal Rules of Civil Procedure. (See generally ECF 13, Mot. To Dismiss.)
For the reasons set forth below, I respectfully recommend that Your Honor should: (1) DENY
Defendants’ motion to dismiss for lack of subject matter jurisdiction and lack of personal
jurisdiction; (2) DENY Defendants’ motion to dismiss for improperly laid venue and sua sponte
(on the Court’s own initiative) transfer this case to the Eastern District of New York; and (3)
DECLINE TO ADDRESS Defendants’ motion to dismiss for failure to state a claim and failure to
comply with Rules 8 and 10, so that the motion may be decided by the transferee court.
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Factual Background
I provide the factual background below based on the allegations in the AC, including its
attachments and the voluminous attachments to the original complaint, which Plaintiff
incorporates into the AC. (See generally ECF 8, AC.)
In 2018, Plaintiff, who is domiciled in Georgia, became acquainted with Defendants,
whom she states live in Staten Island, New York, through social media. (See id. at 7.) Defendants
are two of the actors in the hidden camera show Impractical Jokers. It appears from the
Complaint that Plaintiff never met Defendants face to face, and at times she questioned
whether Defendants were impostors rather than the actors on Impractical Jokers. (See, e.g.,
ECF 1-1 at 47; ECF 1-2 at 5; ECF 1-5 at 50; ECF 1-6 at 28, 48.)
At some unspecified point after September 2018, Defendants began asking her to loan
them money, and she complied on numerous occasions. (See ECF 8, AC at 1, 9-12.) The dates,
amounts, and terms of each the loans are unclear from the AC. (See id.) Plaintiff states that in
the aggregate, she loaned Defendants $128,000; that the repayment amount was initially
$400,000; and that Defendants agreed to increase the repayment amount to $500,000 after
failing to repay (or start repaying) on the original terms. (See id. at 1, 11.)
Procedural History
On May 23, 2025, Plaintiff, who is proceeding pro se (without a lawyer), filed a
complaint against Defendants. (See generally ECF 1, Compl.) She paid the filing fee. Your Honor
referred this case to me for general pretrial supervision and reports and recommendations on
dispositive motions. (See ECF 3, Order of Ref.) I held a conference on June 30, 2025, during
which I informed Plaintiff of my intention of recommending that Your Honor issue an order to
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amend and explained my reasoning. My report and recommendation provided instructions that
Plaintiff would need to follow to fix the problems with the original complaint. (See ECF 6,
Report & Recommendation.) Your Honor adopted my report and recommendation and issued
an order to amend. (See ECF 7, Order To Amend.)
On August 22, 2025, Plaintiff filed the AC. (See ECF 8.) Summonses were issued, and
although Plaintiff did not file proof of service on the docket, Defendants, through counsel, filed
a motion to dismiss. (See ECF 13, Mot. To Dismiss.) Defendants argue that the AC should be
dismissed because: (1) Plaintiff has not shown a basis for federal court subject matter
jurisdiction or that they are subject to the personal jurisdiction of this Court; (2) venue does not
lie in this District; (3) Plaintiff has failed adequately to plead her claims of fraud and fraudulent
inducement, and New York does not recognize conspiracy to commit fraud as a separate cause
of action; and (4) the AC is unintelligible. (See ECF 13-5, Defs.’ Mem. at 5-13, 15, 18-19.)
I held at status conference on November 19, 2025 and informed the parties of my
intention of recommending that Your Honor deny the motion to dismiss for lack of subject
matter jurisdiction and personal jurisdiction and sua sponte transfer the case to the Eastern
District of New York. Plaintiff stated on the record that she did not object to a transfer to the
Eastern District of New York. In light of that representation, I did not set a schedule for Plaintiff
to submit an opposition to the motion to dismiss or for Defendants to submit a reply brief in
further support of the motion to dismiss.
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Discussion
I. 	Order of Considering Defendants’ Arguments
The Supreme Court has held that “a federal court generally may not rule on
the merits of a case without first determining that it has jurisdiction over the category of claim
in suit (subject-matter jurisdiction) and the parties (personal jurisdiction),” so that a federal
court “may not assume jurisdiction for the purpose of deciding the merits of the
case.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007); see also
Central States Se. & Sw. Areas Health & Welfare Fund v. Merc-Medco Managed Care, LLC, 433
F.3d 181, 203 (2d Cir. 2005) (explaining that jurisdictional issues should be decided before
merits issues). Accordingly, notwithstanding that Defendants begin their brief in support of
their motion to dismiss with arguments about Plaintiff’s failure to state a claim and only later
turn to questions of subject matter jurisdiction, personal jurisdiction, and venue, I begin by
addressing the questions whether this Court has subject matter jurisdiction over Plaintiff’s
claims and personal jurisdiction over Defendants and whether venue lies in this District.
II. 	Subject Matter Jurisdiction
A. 	Legal Principles
Sections 1331 and 1332 of Title 28 of the United States Code set out the subject matter
jurisdiction of the federal district courts. Federal district courts are courts of limited jurisdiction
that have subject matter jurisdiction only when a “federal question” is presented or when there
is diversity jurisdiction, which occurs when the parties are citizens of different states and the
amount in controversy exceeds $75,000. See Suozzo v. Beck Chevrolet Co., No. 22-CV-1071
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(PMH), 2022 WL 719274, at *2 (S.D.N.Y. Mar. 10, 2022).0F
1 An individual’s citizenship for
purposes of diversity jurisdiction is determined by his or her domicile, which is the place where
the person has his or her “true fixed home and principal establishment.” Van Buskirk v. United
Grp. of Companies, Inc., 935 F.3d 49, 53-54 (2d Cir. 2019).
B. 	Analysis
Plaintiff is domiciled in Georgia, and Defendants reside in Staten Island, New York. (See
ECF 8, AC at 1.) Plaintiff alleges that she made at least $128,000 in transfers that Defendants
secured by fraud. (See id. at 1-3.) Defendants argue that the AC fails adequately to show that
there is diversity jurisdiction because Plaintiff has not (1) alleged that Defendants are domiciled
(make their true fixed homes) in Staten Island and alleges only that they reside there; and (2)
has not tied $128,000 in transfers “to a proper claim against the named Defendants.” (ECF 13-5,
Defs.’ Br. at 19.)
Because Plaintiff is proceeding without a lawyer, her filings must be read liberally, to
make the strongest claims they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (“It is well established that the submissions of a pro se litigant must be
construed liberally and interpreted to raise the strongest arguments they may suggest.”); Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (explaining that the Court is obliged to construe pro se
pleadings liberally). Plaintiff’s failure to appreciate the difference between citizenship,
residence, and domicile is not an appropriate basis for dismissing this case for lack of subject
matter jurisdiction. Notably, Defendants never dispute they are citizens of a state other than
1 	Unless indicated otherwise, this report and recommendation omits internal quotation
marks, citations, and alterations from quoted text.
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Georgia, the state where Plaintiff is a citizen, as required for diversity jurisdiction. Nor do they
dispute that they are domiciled in Staten Island, New York. Had Defendants wished to challenge
Plaintiff’s allegation that they are citizens of a state other than Georgia, where Plaintiff is a
citizen, they could have included information on their domicile in their declarations. They did
not do so. (See ECF 13-1, Aff. of Brian Quinn ¶ 5; ECF 13-3, Aff. of Salvatore Vulcano ¶ 10.)
Under the circumstances, Your Honor should reject Defendants’ argument that the case should
be dismissed because Plaintiff has failed adequately to plead that Defendants are domiciled in
Staten Island and therefore citizens of New York State.
Defendants’ argument that Plaintiff has not adequately pleaded the amount in
controversy similarly falls short. Plaintiff alleges that she was defrauded into transferring
$128,000 to Defendants. (See ECF 8, AC at 1.) Defendants’ response is that she has failed to
state a claim linking Defendants to her loss of $128,000. (See ECF 13-5, Def.’s Mem. at 19.)
Whether Plaintiff has adequately stated a claim against Defendants is a separate question from
whether Plaintiff has adequately pleaded the amount in controversy. See Zacharaia v. Harbor
Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982) (explaining that “[t]he jurisdictional
determination is to be made on the basis of the plaintiff’s allegations, not on a decision on the
merits,” and “even where those allegations leave grave doubt about the likelihood of a
recovery of the requisite amount, dismissal is not warranted”).
Accordingly, I respectfully recommend that Your Honor should DENY Defendants’
motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction.
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III. 	Personal Jurisdiction
Defendants argue that “[s]ince Defendants reside outside this judicial district, and since
none of the events giving rise to Plaintiff’s claims occurred in this district or give rise to personal
jurisdiction over Defendants, venue in this judicial district is inappropriate.” (ECF 13-5, Defs.’ Br.
at 18.) Defendants appear to confuse personal jurisdiction and venue. I address both
requirements out of an abundance of caution.
As set forth below, while venue is limited to, among other fora, a judicial district where
a defendant resides if all defendants reside in the same state, see 28 U.S.C. § 1391(1), in a state
with multiple federal judicial districts, any federal court within the state may properly exercise
general personal jurisdiction over an individual domiciled anywhere within the state. See
Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 924 (2011) (holding that, “[f]or an
individual, the paradigm forum for the exercise of general jurisdiction is the individual’s
domicile,” and discussing the state of domicile rather than the judicial district where the
individual resides); see also Beskrone v. Berlin, 656 F. Supp. 3d 496, 508 (S.D.N.Y. 2023)
(explaining that, as relevant here, “C.P.L.R. § 301 allows courts in New York to exercise general
personal jurisdiction over individuals who are domiciled in New York [State]”); cf. Licci ex rel.
Licci v. Lebanese Canadian Bank, SAL, 673 F. 3d 50, 59-62 (2d Cir. 2012) (explaining that the
“minimum contacts” inquiry in connection with a personal jurisdiction analysis requires
examination of the sufficiency the defendant’s contacts with the forum state (not the forum
district) to justify the court’s exercise of personal jurisdiction). Defendants do not dispute that
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they are domiciled within the State of New York, which means that this Court may properly
exercise personal jurisdiction over them.1F
2
Accordingly, to the extent that Defendants are moving to dismiss under Rule 12(b)(2) for
lack of personal jurisdiction, I respectfully recommend that Your Honor should deny that
motion.
IV. 	Venue
A. 	Legal Standards
Under the general venue statute, a civil action may be brought in
(1) a judicial district in which any defendant resides, if all defendants are residents of the
State in which the district is located; (2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or (3) if there is no district in which
an action may otherwise be brought as provided in this section, any judicial district in
which any defendant is subject to the court's personal jurisdiction with respect to such
action.
28 U.S.C. § 1391. When a court concludes that venue is improper, it may dismiss the case or
transfer it to another district pursuant to 28 U.S.C. § 1406(a). See 28 U.S.C. § 1406(a) (“The
district court of a district in which is filed a case laying venue in the wrong division or district
2 	While the preliminary statement of Defendants’ brief in support of its motion to dismiss
has a throwaway statement that Plaintiff failed properly to serve them (ECF 13-5, Defs.’ Br. at
1), I do not understand Defendants’ motion to seek dismissal on the basis of improper service,
since their papers do not mention dismissal under Rule 12(b)(5), which governs motions to
dismiss for improper service. See Khan v. Khan, 360 Fed. App’x 202, 204 (2d Cir. 2010) (“[T]he
defense of insufficient service of process may be waived by a party’s failure to either raise it in a
motion under Rule 12(b) of the Federal Rules of Civil Procedure or to include it in a responsive
pleading.”).
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shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.”).
B. 	Analysis
Defendants argue that the AC does not properly lay venue in this District. (See ECF 13-5
Defs.’ Br. at 4, 16, 18). Defendants are correct. Venue is not proper under 28 U.S.C. § 1391(1),
because no Defendant is alleged to be domiciled in this District. Both Defendants are alleged to
reside in Staten Island, New York, which is in the Eastern District of New York. Venue is not
proper under 28 U.S.C. § 1391(2), because Plaintiff does not allege that a substantial portion of
the events giving rise to her claims occurred in this District, which includes the boroughs of
Manhattan and the Bronx in New York City and some counties north of New York City. And
venue is not proper under 28 U.S.C. § 1391(3), because there is another judicial district where
venue is proper – specifically, the Eastern District of New York.
While Defendants are correct that venue does not lie in this District, I respectfully
recommend that Your Honor should nevertheless deny Defendants’ motion to dismiss under
Rule 12(b)(3) and instead sua sponte transfer this case to the Eastern District of New York. See
Luke v. Sunwing Travel Grp., No. 20-CV-4964 (LLS), 2020 WL 7360413, at *3 (S.D.N.Y. Dec. 14,
2020) (transferring the case on the Court’s own motion); Bank of Am., N.A. v. Wilmington Trust
FSB, 943 F. Supp. 2d 417, 426 (S.D.N.Y. 2013) (denying the defendants’ motion to dismiss and
transferring the case sua sponte).
Under 28 U.S.C. § 1406(a), this Court may transfer this case to “any district or division in
which it could have been brought,” if doing so would be in the interests of justice. 28 U.S.C.
§ 1406(a). The case could have been brought in the Eastern District of New York under Section
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1391(b)(1). Transfer rather than dismissal is typically “in the interest of justice because normally
dismissal of an action that could be brought elsewhere is time-consuming and justice-
defeating.” Hudson Furniture, Inc. v. Lighting Design Wholesalers Inc., No. 20-3299, 2021 WL
6105489, at *2 (2d Cir. Dec. 21, 2021).
Two factors that militate in favor of transfer rather than dismissal are that (1) “the
original action was filed in good faith” and (2) “a new action filed by the litigant would be
barred as untimely.“ Gakuba v. Doe, No. 22-CV-1039 (LTS), 2022 WL 561669, at *4 (S.D.N.Y.
Feb. 22, 2022) (quoting Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996)). One of these
factors is present here: there is no indication that Plaintiff filed suit in this District in bad faith;
rather, Plaintiff is a pro se litigant who does not appear to have understood that venue does
not lie in this District. “[A] transfer would expedite the resolution of [Plaintiff’s] claim, thereby
furthering the interest of justice.” Hendrickson v. United States, 791 F.3d 354, 363 (2d Cir. 2015)
(concluding that the district court lacked subject matter jurisdiction, reversing the district
court’s grant of summary judgment in favor of the plaintiffs, and ordering transfer to the Court
of Federal Claims because the plaintiff’s improper filing was “a good-faith mistake or error in
interpreting the law” and despite the absence of any “reason to believe that Plaintiffs’ claim
would be barred as untimely if filed in the Court of Federal Claims”). Plaintiff’s good faith and
the goal of expediting resolution of this matter support transfer rather than dismissal, even
though it does not appear that Plaintiff’s claims would be time-barred if Plaintiff had to re-file.
See id.; see also Ruiz v. Mukasey, 552 F.3d 269, 276 (2d Cir. 2009) (upholding the denial of a
motion to dismiss and order to transfer despite concluding that “Petitioners’ claims likely would
be timely if filed anew in the district court”); In re Williams, No. 19-MC-0255 (JGK), 2019 WL
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4933487, at *2 (S.D.N.Y. Oct. 4, 2019) (rejecting a motion to dismiss and explaining that
“transfer to the Eastern District of New York, rather than dismissal, would best serve the
interests of justice because dismissal would inevitably lead to the plaintiff simply refiling in the
Eastern District of New York and because transfer will therefore lead to an expeditious
adjudication of the case on the merits”).
Accordingly, I respectfully recommend that Your Honor should DENY Defendants’
motion to dismiss for improperly laid venue pursuant to Rule 12(b)(3) and that Your Honor
should instead issue an order sua sponte transferring this case to the Eastern District of New
York.
V. 	Defendants’ Motion To Dismiss for Failure To State a Claim and
Failure To Comply with Rules 8 and 10 of the Federal Rules of Civil Procedure
If Your Honor agrees that this case should be transferred to the Eastern District of New
York, I respectfully recommend that Your Honor should not address Defendants’ arguments
that the AC should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim or for failure to comply with Rules 8 and 10. Instead, I respectfully recommend
that Your Honor reserve decision on these arguments so that they can be addressed in the
transferee Court, where they are appropriately resolved. See In re Williams, 2019 WL 3858585,
at *3 (“Because transfer to the Eastern District of New York is appropriate, the Court declines to
address [the defendant’s] alternative grounds for dismissal of the action.”).
CONCLUSION
For the foregoing reasons, I respectfully recommend that Your Honor should: (1) DENY
Defendants’ motion to dismiss for lack of subject matter jurisdiction; (2) DENY Defendants’
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motion to dismiss for improperly laid venue and sua sponte (on the Court’s own initiative)
transfer this case to the Eastern District of New York; and (3) decline to address Defendants’
motion to dismiss for failure to state a claim and failure to comply with Rules 8 and 10 of the
Federal Rules, so that the transferee court may decide that motion.
Dated: December 19, 2025
New York, New York
Respectfully Submitted,
________________________________
ROBYN F. TANOFSKY
United States Magistrate Judge
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO REPORT AND RECOMMENDATION
The parties shall have fourteen days (including weekends and holidays) from service of
this report and recommendation to file written objections to this report and recommendation
pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party
may respond to another party’s objections within fourteen days after being served with a
copy. Fed. R. Civ. P. 72(b)(2). Such objections, and any responses to objections, shall be filed
with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Any requests for an
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extension of time for filing objections and responses to objections must be addressed to Judge
Oetken.
THE FAILURE TO OBJECT WITHIN FOURTEEN DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b); Thomas v. Arn, 474 U.S. 140 (1985).
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