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United States District Court, S.D. New York

July 13, 2004.

JOHN DOE AND JANE DOE, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  John Doe and Jane Doe, on behalf of themselves and all others similarly situated (collectively, "plaintiffs"), filed this putative class action for trespass against CBS Broadcasting, Inc. ("CBS"), National Broadcasting Company, Inc. ("NBC"), American Broadcasting Companies, Inc. ("ABC"), Cable News Network LP, LLLP ("CNN"), Fox News Network, LLC ("Fox News"), and others similarly situated (collectively, "defendants"). Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332(a). Plaintiffs, who have — or have considered getting — unlisted or unpublished telephone numbers, seek to enjoin defendants from calling those numbers to conduct telephone opinion surveys. Defendants now move to dismiss for lack of subject matter jurisdiction, arguing that plaintiffs' claim does not meet section 1332(a)'s amount in controversy requirement. Defendants also move to dismiss Jane Doe's claim for lack of standing and to dismiss the entire action for failure to use the plaintiffs' actual names.


  Defendants, either directly or through hired research firms, conduct telephone opinion surveys,*fn1 using computer-generated phone numbers from "processes called random digit dialing and sequential dialing."*fn2 Plaintiffs allege that defendants "have never sought, nor been given, either the explicit or implicit consent of the members of the [p]laintiff [c]lasses to call them."*fn3 John Doe has an unlisted, unpublished phone number, and claims that "each call by a member of the [d]efendant [c]lass to a member of the [p]laintiff [c]lass constitutes a trespass to chattels."*fn4 Jane Doe "would obtain an unlisted telephone number, but has refrained from doing so solely because of the constant threat that the members of the [d]efendant [c]lass would call her."*fn5

  Plaintiffs allege that it would cost defendants "well over $100,000" to comply with the injunction sought by plaintiffs — namely to purchase phone lists that exclude unlisted and unpublished phone numbers.*fn6 Defendants contend that if they obtained a list of plaintiffs' phone numbers, "it would cost pennies to make sure that their numbers are not called."*fn7 Plaintiffs do not argue that the injury suffered by any individual plaintiff exceeds $75,000.00.*fn8 Instead, plaintiffs argue that complying with the injunction would cost defendants more than $75,000.00, thereby satisfying section 1332(a)'s amount in controversy requirement.


  In diversity actions, complete diversity among the parties must exist and the amount in controversy must exceed $75,000.*fn9 "It is well settled that `the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.'"*fn10 "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."*fn11 In assessing jurisdiction, a court is not confined to the four corners of the complaint, however, and may consider evidence outside the pleadings such as affidavits and other documents.*fn12 "It is well ingrained in the law that subject-matter jurisdiction can be called into question either by challenging the sufficiency of the allegation or by challenging the accuracy of the jurisdictional facts alleged."*fn13 Where a defendant objects to a plaintiff's jurisdictional pleading, the standard of review is the same as the familiar Rule 12(b)(6) requirement: "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff."*fn14

  In measuring the value of a claim for jurisdictional purposes, "the amount in controversy is calculated from the plaintiff's standpoint; the value of the suit's intended benefit or the value of the right being protected or the injury being averted constitutes the amount in controversy when damages are not requested."*fn15 "When equitable relief is sought . . . the better reasoned approach is to measure the jurisdictional amount by reference to the property right which plaintiff seeks to protect by invocation of one of the equitable remedies."*fn16 "The Second Circuit has held that the amount in controversy for jurisdictional purposes should be measured strictly from the plaintiff's perspective, without regard for the amount at stake for any other party. . . . [T]his viewpoint . . . applies both to declaratory and equitable relief actions."*fn17 The burden of proof in establishing federal jurisdiction falls on the party seeking to invoke that jurisdiction.*fn18


  Where a plaintiff seeks an injunction rather than damages, a court considering whether the jurisdictional amount is satisfied must ask whether the plaintiff hopes to receive a benefit in excess of $75,000.00.*fn19 Plaintiffs concede that, under Second Circuit law, their damages must be calculated based on the value of the benefit they are seeking, but urge the court to consider the cost to defendants in valuing that benefit.*fn20 In support of their argument, plaintiffs cite cases from the Southern and Eastern Districts of New York.*fn21 However, each of these cases is distinguishable.

  Mortgageit v. Wallberg and In re Rezulin Products Liability Litigation both rely on Katz v. Warner-Lambert as their primary support for using defendants' costs to measure the amount in controversy.*fn22 In Katz, plaintiffs sought an injunction requiring defendants to warn users about the potentially harmful effects of taking Rezulin, and fund research to develop cures for such harm. In calculating the amount in controversy, the court emphasized that the Second Circuit uses the "plaintiff's viewpoint" approach.*fn23 Because plaintiffs in Katz sought to compel the defendants to conduct research, the benefit they were seeking was the value of that research. Therefore, the benefit to plaintiffs was equal to the cost defendants would incur to conduct the research, and defendants' costs were the appropriate measure of the amount in controversy.*fn24 In the case now before me, however, the benefit to plaintiffs is not equal to the cost to defendants, and Katz, Mortgageit, and In re Rezulin are not instructive.*fn25

  The "plaintiff's viewpoint" approach renders the amount of plaintiffs' claim insufficient to satisfy the jurisdictional amount required to exercise federal jurisdiction. Specifically, plaintiffs cannot allege that any individual plaintiff suffered more than $75,000.00 in damage.*fn26 Plaintiffs have therefore failed to "allege a proper basis for jurisdictional in [their] pleadings" and have not "support[ed] those allegations with `competent proof'" in response to a jurisdictional challenge.*fn27


  For the foregoing reasons, defendants' motion to dismiss for lack of subject matter jurisdiction is granted.*fn28 The Clerk of the Court is directed to close this motion [docket # 11].


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