The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiffs commenced this diversity action pro se alleging damages arising from a real estate deal with Defendants. Defendants move to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(1) on the grounds that the amount in controversy is less than $75,000.00 and, therefore, the Court lacks of subject matter jurisdiction over the action. Plaintiffs have opposed the motion.
"It is a fundamental principle that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Title 28 U.S.C. § 1332 confers subject matter jurisdiction over actions between "citizens of a State and citizens or subjects of a foreign state" where the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(2).
The party invoking federal court jurisdiction "has 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 Assur. Soc'y, U.S., 347 F.3d 394, 397 (2d Cir. 2003)](quoting Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (further citation omitted)).
But, that burden is "hardly onerous ... [given the] rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy." Id. If a party opposes diversity jurisdiction, then that party "must show 'to a legal certainty' that the amount recoverable does not meet the jurisdictional threshold." Id. (quoting [Wolde-Meskel v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999)](further citation omitted)).
Wrap-N-Pack, Inc. v. Eisenberg, 2007 WL 952069, at * 4 (E.D.N.Y. March 29, 2007).
"When resolving issues surrounding subject matter jurisdiction, a district court is not confined to the complaint and may refer to evidence outside the pleadings, such as affidavits." Gunst v. Seaga, 2007 WL 1032265, at *2 (S.D.N.Y. March 30, 2007)(citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). "Furthermore, 'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Id. (quoting Shipping Financial Services Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)). If any of the grounds for subject matter jurisdiction are lacking, dismissal is mandatory. See United Food & Commercial Workers Union Local 919 v. Centermark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).
Plaintiffs own property in Clayton, New York near the St. Lawrence River. Their property is in a row of "twenty-nine cottage lots" running east to west in what Plaintiffs refer to as the "Aubertine Tract subdivision." Compl. ¶ 25. The St. Lawrence River is located to the north of the Aubertine Tract subdivision, and to the south is a large undeveloped parcel of land owned by the Mason and Aubertine families referred to as "the Pasture." See Compl. Ex. 1. Running east to west along the northern portion of the Pasture is a private gravel road referred to as Rock Beach Road. Id. Rock Beach Road intersects Breezy Point Road, a town road, on its western end, and intersects State Route 12E on its south-eastern end. Id.; Devendorf Decl., Ex. 1.*fn1 Owners of the properties in the Aubertine Tract subdivision used Rock Beach Road for motor vehicle access to and from the public highways. Heading west on Rock Beach Road from Plaintiffs' property, it is approximately 500 feet to Breezy Point Road. See Pltfs Mem. L. in Opp. ¶ 9.
Defendants obtained title to a 6.75 acre portion of the Pasture that abutted twenty (20) of the properties in the Aubertine Tract subdivision. Compl. Ex. 1. The 6.75 acre parcel encompassed most, but not all of, Rock Beach Road behind the Aubertine Tract subdivision. Id. Defendants divided this strip of land and offered to the twenty adjoining Aubertine Tract subdivision owners small lots between their properties and Rock Beach Road. See Compl. Ex. 1. In the selling offer, Defendants stated that "[e]ach purchase would include ownership of the right-of-way, and any land north of the existing road that currently belongs to the Masons and Aubertines." Id. Defendants also represented that they would use the proceeds of the sales of these small lots to purchase the rest of the Pasture and would, in the future, lease the Pasture "for continued grazing." Id.
On September 21, 2005, Plaintiffs purchased from Defendants, for $10,000.00, a 200 x 50 foot lot adjacent to their property. A warranty deed conveyed the lot to Plaintiffs "[t]ogether with and subject to the rights of ingress and egress in common with others over the private right of way known as Rock Beach Road for access to and from the town highway known as Breezy Point Road." Compl. ¶ 8, Ex. 3.
After purchasing this lot, Plaintiffs learned that the Masons and Aubertines were offering for sale a 1-acre building lot at the westward end of Rock Beach Road near the intersection of Breezy Hill Road. Id. ¶ 10.*fn2 The 1-acre lot consisted of parcels on both the north and south sides of Rock Beach Road. Id. ¶ 10. On November 11, 2006, members of the Mason and Aubertine families erected "No Trespassing" signs on the portion of Rock Beach Road that intersected this 1-acre parcel "[t]hereby blocking [Plaintiffs'] ingress and egress from Rock Beach Road ...