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February 4, 2004.


The opinion of the court was delivered by: BARBARA JONES, District Judge



Plaintiff Mel Heiko, who is an attorney appearing pro se, filed a complaint in the Court on September 19, 2002 ("Complaint") alleging that Defendants Keil Equipment Co, Inc. ("Keil"), Gravley Equipment Co. ("Gravley"), and Peco, Inc. ("Peco") breached certain warranties they made in conjunction with the sale of mowing equipment, in violation of 15 U.S.C. § 2310. (Compl. at 2-7). Plaintiff alleges no other causes of action.

  In his Complaint, Plaintiff asserts that the Court has jurisdiction under 15 U.S.C. § 2310, as well as under the federal question statute, 28 U.S.C. § 1331.*fn1 Plaintiff also maintains that he suffered $10,000 in damages, "including $5,000.00 incidental and $5,000.00 consequential damages [sic]," and that he is "entitled to a refund for the return of the equipment," which cost $2,639.52.*fn2 (Id. at 2, 7).

  Defendants filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction on the premise that Plaintiff's Complaint did not meet the jurisdictional requirement of 15 U.S.C. § 2310 that there be at least $50,000 in controversy. The Court agrees and therefore dismisses the Complaint.


  Plaintiff pleads that there is federal question jurisdiction pursuant to 28 U.S.C. § 1331. "Federal question jurisdiction exists where a well-pleaded complaint `establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 137 (2d Cir. 2002) (quoting Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 25 (2d. Cir. 2000)). When deciding whether federal question jurisdiction exists, a court must examine "the nature of the federal question raised in [each] claim to see if it is sufficiently substantial to warrant federal jurisdiction." Perpetual Sec., 290 F.3d at 137 (quoting Greenblatt v. Delta Plumbing & Heating Corp., 68 F.3d 561, 570 (2d Cir. 1995)).

  In this case, it is clear that the Court would not have jurisdiction over Plaintiff's Complaint pursuant to 28 U.S.C. § 1331 unless it had jurisdiction under 15 U.S.C. § 2310.

  15 U.S.C. § 2310, known as the Magnuson-Moss Act ("Act"), authorizes consumers to sue warrantors "for damages and other legal and equitable relief" for failure to comply with any written or implied warranty. Lieb v. American Motors Corp., 538 F. Supp. 127, 131 (S.D.N.Y. 1982) (quoting 15 U.S.C. § 2310 (d)(1)). According to the Act, an action may be brought in state or federal court. 15 U.S.C. § 2310 (d)(1)(A)-(B). However, the Act restricts access to federal courts to those suits satisfying certain requirements. Specifically, the Act states that,
No claim shall be cognizable in a suit brought under [15 U.S.C. § 2310 in federal district court] . . . (B) if the amount in controversy is less than the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit . . .
15 U.S.C.A. § 2310.

  The party invoking the Court's jurisdiction bears the "burden of proving that it appears to a `reasonable probability' that the claim is in excess of the statutory jurisdictional amount." Scherer v. Equitable Life Assurance Society, 347 F.3d 394, 397 (2d Cir. 2003) (citations omitted).

  In this case, Plaintiff admits that in order for this Court to have jurisdiction over his Section 2310 claim, the amount in controversy must equal or exceed $50,000. (Plaintiff's Affirmation in Opposition to Defendants' Motion to Dismiss the Complaint, dated Jan. 28, 2003 ("Pl's Aff.") at 2. On the face of the Complaint, however, Plaintiff only alleges that he is due damages in the amount of $12,639.52. He nonetheless argues that he is "entitled to damages for consequential economic loss and damages [sic], for deceit and misrepresentation and fraud against [Defendants], can and should [sic] exceed the sum of $50,000." (Plaintiff's Supplemental Memorandum of Law, dated Jan. 28, 2003 ("Pl's Supp. Mem."), at 1). To the contrary, however, the Court has already included in the $12,639.52 figure $5,000 for "incidental" and $5,000 for "consequential" damages, as Plaintiff alleged in his Complaint. Moreover, although Plaintiff argues that he has claims for fraud and misrepresentation, these claims appear nowhere in his Complaint.*fn3

  Plaintiff also argues that punitive damages contribute to the amount in controversy. (Pl's Supp. Mem. at 6). Like the fraud and misrepresentation claims, however, a request for an award of punitive damages does not appear in his Complaint, nor does Plaintiff allege any facts sufficient to justify such a claim. Moreover, "[i]n breach of warranty suits, which is all that Magnuson-Moss permits, damages [in New York] ordinarily are limited to the difference between the value of the goods accepted and the value they would have had if they had been as warranted." Lieb, 538 F. Supp. at 134 (citing N.Y.U.C.C. Law § 2-714(2) (McKinney)).

  Accordingly, the Court grants Defendants' Motion to Dismiss the Complaint for lack of jurisdiction because it fails to allege that ...

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