The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
Plaintiff sues for breach of an insurance contract involving an
alleged car theft. Defendant now moves pursuant to Fed.R. Civ.P.
12(b)(6), 12(c) and 12(h)(2) to dismiss the complaint insofar as
it seeks $500,000 in punitive damages and any attorney's fees.
The Government has intervened requesting an order quashing the
subpoenas served by plaintiff on the Federal Bureau of
Investigation ("FBI") and Special Agent Beekman or, in the
alternative, an order staying discovery pending resolution of an
ongoing criminal investigation. For the reasons set forth below,
defendant's and the Government's motions are granted. The
complaint is dismissed pursuant to Fed.R.Civ.P. 12(h)(3) for
failure to meet the amount in controversy requirement.
On September 5, 1989, plaintiff alleges he discovered the theft
of his 1987 black Jaguar, four-door sedan, Model XJ6 Vandem Plas.
According to his deposition testimony, he last saw the vehicle on
Friday, September 1, 1989, around 10:00 a.m. when he parked it
across the street from his girlfriend's apartment located in
Yonkers, New York. When he returned to Yonkers on the morning of
Tuesday, September 5, 1989, to pick up the car, it was missing.
The record does not disclose why he failed to use his car over
the entire Labor Day weekend.
On September 5, plaintiff reported the theft to the Yonkers
Police Department and to his insurer, Aetna. Two days later,
plaintiff filed a statement of loss with Aetna claiming a loss of
$46,827.60, equivalent to the purchase price of the Jaguar. Grosz
Aff., Exh. C.
Aetna assigned investigator Donald Pisculli to the claim. By
letter dated November 7, 1989, Aetna disclaimed all coverage
under plaintiff's policy for loss of the Jaguar, stating, "Our
investigation has determined discrepancies in the reported
disappearance of your vehicle." Grosz Aff., Exh. D. At his
deposition on May 10, 1990, Pisculli revealed that the basis for
denying the claim was information provided to him by FBI Special
Agent Mary Ellen Beekman. Pisculli Dep., Tr. at 58.
Beekman essentially informed Aetna that she had observed the
Jaguar on September 1, 1989, at a garage located in the vicinity
of 102nd Street and Tenth Avenue in Manhattan and that the
vehicle was driven to Florida the following day, September 2,
1989, in connection with a "Dominican car theft ring." Grosz Aff.
¶ 7. Beekman had also learned from an informant facts suggesting
that the vehicle may have been present at the garage for eight
days prior to September 2, 1989, and that the car had been
delivered as an "insurance give-up." Id. at ¶ 7.
Plaintiff Alan Raphael was subsequently indicted under seal by
a federal grand jury on July 13, 1990, "for conduct that was the
subject of the [FBI] investigation. . . ." Maloney Supp.Decl. ¶
The parties agreed to waive oral argument on the Government's
motion to quash the subpoenas.
Plaintiff has served subpoenas on the Federal Bureau of
Investigation and Special Agent Beekman seeking production of:
1. Each document relating or referring to the Jaguar,
including: (a) all notes and memoranda relating or
referring to the observation of the Jaguar by
Beekman, the F.B.I., or any informant, on or about
September 1, 1989 or at any time prior thereto; and
(b) all notes and memoranda comprising, relating or
referring to each communication with any person, or
to any investigation, concerning the whereabouts of
the Jaguar at any time after August 15, 1989.
2. Each document relating or referring to any
investigation by Beekman or the F.B.I. concerning ...