is important, because the Tongkook court stated that the plaintiff "'should know whether [the] claim is within the statutory amount.'" Tongkook 14 F.3d at 784 (quoting St. Paul Mercury, 303 U.S. at 290). Whereas the St. Paul Mercury standard acknowledges implicitly that a defendant invoking federal jurisdiction will often not be certain of the exact value of the plaintiff's claim, and therefore must only show that an amount below the jurisdictional minimum is not a "legal certainty."
Moreover, faced with the issue of removal by the defendant, courts in the Second Circuit have applied the legal certainty standard. For example, in Cygielman v. Cunard Line Ltd., 890 F. Supp. 305, 306 (S.D.N.Y. 1995), the court observed that when a plaintiff finds himself "hoist by his own petard into a forum not to his liking," dismissal is justified only when it appears "to a legal certainty that the claim is really for less than the jurisdictional amount." Id. (citing St. Paul Mercury, 303 U.S. 283).
Applying the legal certainty standard, the court agrees with the defendant that the plaintiff expressing the lowest amount in payments between August 1995 and May 1996 -- some $ 32,000 over 10 months -- could easily generate an amount in controversy in excess of the jurisdictional minimum between the date of termination of the contract and the time a damage award is made if a breach of contract is found. Hence, considering plaintiffs' affidavit (Item 2, Ex. B.), it is not clear to a legal certainty that the jurisdictional amount cannot be recovered, and dismissal is inappropriate. Plaintiff's motion to remand is denied.
II. Plaintiffs have not demonstrated irreparable injury.
Because this action is brought pursuant to the court's diversity jurisdiction, the court is bound to apply New York substantive law. The general rule in New York is that for a preliminary injunction to issue pursuant to CPLR § 6301, the party seeking the injunctive order must show "probability of success, danger of irreparable injury in the absence of an injunction, and a balance of equities in [the applicant's] favor." Aetna Insurance Company v. Capasso, 75 N.Y.2d 860, 552 N.Y.S.2d 918, 919, 552 N.E.2d 166 (1990). Where the gravamen of an action is the allegedly improper termination of an agreement giving rise to a breach of contract, there is no irreparable injury if the plaintiff could be fully compensated by money damages. Haulage Enterprises Corp. v. Hempstead Resources Recovery Corp. 74 A.D.2d 863; 426 N.Y.S.2d 52 (2d Dep't 1980).
Plaintiffs argue that the loss of customers resulting from termination of the contract will threaten their livelihood as independent pharmacists. Item 6, p.8. They also argue that their customers will be irreparably harmed because some plaintiffs will not be able to get new prescriptions on short notice. The plaintiffs argue that the lives of some customers may be endangered. Id.
Plaintiffs' loss of customers is not an irreparable injury, because any loss would be compensable through money damages. In addition, the worst situation faced by customers in an emergency would be that they would have to pay once for their prescription at a non-MPN pharmacy. By the next refill, the customer would presumably have had the opportunity to locate a participating pharmacy and have their prescription filled there. In addition, the fact that the new MPN pharmacy may not be as convenient as the terminated pharmacy does not amount to an irreparable injury: given that the agreement between MPN and the pharmacies can be terminated at any time, there is no long-term guarantee that customers will be able to have their prescriptions filled at the most convenient location. Finally, the agreement between MPN and the HMOs require that a participating pharmacy be within prescribed distances from members' homes, so that no HMO member will be critically inconvenienced. Plaintiff has made no showing that any member will not have a pharmacy within the designated distance.
The court notes that it does not consider plaintiffs' arguments that the contract was wrongfully terminated. If plaintiffs are correct in their breach of contract theory, their remedy is before the arbitrator.
For the foregoing reasons, the court finds that it has subject matter jurisdiction over the present action. Plaintiffs' motion for a preliminary injunction is denied.
JOHN T. CURTIN
United States District Judge
Dated: August 5th, 1996
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