The opinion of the court was delivered by: JOHN G. KOELTL
John G. Koeltl, District Judge:
This action is brought by Gardiner Stone Hunter International and Robert R. Stone, d/b/a Gardiner Stone International, to recover compensation for work allegedly performed for the defendant airlines, Iberia Lineas Aereas De Espana, S.A., Aerolineas Argentinas, S.A, and Venezolana Internacional De Aviacion, S.A., during the period from August, 1991 through October, 1992. The plaintiffs allege that they conducted employee searches on behalf of the defendants for persons to fill various positions at the airlines for which they have not been compensated as agreed. The amended complaint (hereinafter "the complaint") pleads common law claims for breach of contract, breach of good faith and fair dealing, recovery of an account stated, and unjust enrichment, as well as a statutory claim under New York General Business Law § 349 for unfair and deceptive trade practices. Jurisdiction is predicated on 28 U.S.C. § 1330, a provision of the Foreign Sovereign Immunities Act ("FSIA"), and on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). Defendant Aerolineas Argentinas, S.A. has moved for dismissal of the complaint against it for lack of subject matter jurisdiction.
The jurisdictional allegations in the complaint are not disputed. The complaint alleges that defendant Aerolineas Argentinas, S.A. ("Aerolineas Argentinas") is an Argentinean corporation with its principle place of business in Buenos Aires and a place of business in New York, New York. It further alleges that the Argentine Republic owned a plurality of Aerolineas Argentinas' stock at the time of the events alleged in the complaint, but that subsequently defendant Iberia Lineas Aereas de Espana, S.A. ("Iberia"), alleged to be a state owned Spanish corporation, acquired an 85% ownership interest in Aerolineas Argentinas, reducing the interest of the Argentine Republic to 5%. Complaint PP 4, 5.
The plaintiff has the burden of proving that "it appears to a 'reasonable probability' that the claim is in excess of the statutory jurisdictional amount." Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781 (2d Cir. 1994) (citation omitted). The complaint alleges that Aerolineas Argentinas owes the plaintiffs $ 46,600 in unpaid fees. The amounts claimed against the other defendants cannot be aggregated with this amount to reach the jurisdictional minimum, because the claims against the other defendants are separate and distinct from the claims against Aerolineas Argentinas.
A complaint alleging diversity of citizenship will only be dismissed if it appears to a legal certainty that the plaintiff's claim does not exceed $ 50,000. See Tongkook, 14 F.3d at 784 (quoting St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 82 L. Ed. 845, 58 S. Ct. 586 (1938)); Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982).
The plaintiff has asserted a claim for unfair and deceptive trade practices under New York General Business Law § 349,
which provides for an award of attorney's fees to the prevailing party.
A potential award of attorney's fees may be considered by the court when determining whether a case involves the jurisdictional minimum. See Ball v. Hershey Foods Corp., 842 F. Supp. 44, 47 (D. Conn. 1993) ("Since the court may take attorney's fees into account when determining the amount in controversy, there is a 'reasonable possibility' here that the amount in controversy exceeds $ 50,000.")
There is certainly a reasonable probability that the plaintiff's legal fees will exceed $ 3,400 in pursuing its claim of $ 46,600, the increment necessary to bring the amount in controversy to the jurisdictional minimum.
Therefore, the Court possesses diversity jurisdiction over this case.
The Foreign Sovereign Immunities Act of 1976, Pub. L. No 94-583, 90 Stat. 2891 (1976), codified at 28 U.S.C. §§ 1602-1611, was enacted to clarify the circumstances under which litigants may sue foreign states and their controlled enterprises in the federal courts. See 14 Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure § 3662, at 380-81 (2d ed. 1985). Section 1330(a) of Title 28 of the United States Code, a portion of the Act, provides:
The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement. . . .
28 U.S.C. 1330(a). Aerolineas Argentinas does not presently assert that it is entitled to sovereign immunity under the Act, but that the court lacks jurisdiction under § 1330, because it is not a "foreign ...