exceeds $ 50,000. The parties agree that there is complete diversity of citizenship between the plaintiffs and defendants. The only issue raised with regard to diversity jurisdiction is whether the complaint satisfies the jurisdictional minimum.
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.
Aerolineas Argentinas argues that there is no reasonable probability that the plaintiffs will recover attorney's fees, because § 349 is inapplicable to this case. It argues that § 349 is a deceptive acts or practices consumer protection statute which applies to breach of contract claims only when they relate to a consumer transaction. However, Aerolineas Argentinas has not moved to dismiss the § 349 claim and the mere allegation that a plaintiff is not likely to prevail on a claim is not sufficient to preclude a court from taking that claim into consideration when determining the amount in controversy. See Zacharia, 684 F.2d at 202 ("Existence of a valid defense does not deprive a federal court of jurisdiction.") The Court certainly cannot say to a legal certainty that the plaintiffs cannot recover attorney's fees on their § 349 claim. Cf. In Re Wiring Device Antitrust Litigation, 498 F. Supp. 79 (E.D.N.Y. 1980) (Weinstein, J.).
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 state" as defined in § 1603(a), which provides that:
(a) A "foreign state," except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).