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Alaimo v. Cohen

September 9, 2008

VINCENT ALAIMO ET AL., PLAINTIFFS,
v.
RONALD COHEN, DEFENDANT.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Plaintiffs Vincent Alaimo, Susan Alaimo, and Minette Alaimo (collectively, "Plaintiffs"), bring this action against Defendant Ronald Cohen, Esq. ("Defendant"), alleging breach of contract, breach of fiduciary duty, and legal malpractice. On November 8, 2007, Defendant moved to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Defendant's Motion to Dismiss for lack of subject matter jurisdiction is DENIED, but Defendant's Motion to Dismiss for failure to state a claim is GRANTED.

I. Background

On or about April 22, 2005, Plaintiffs retained Defendant to represent them in a legal malpractice action against Klein and Folchetti, the attorneys who represented Plaintiffs in a products liability and breach of warranty action against General Motors ("GM case"). (Compl. ¶¶ 4-5.)*fn1 Plaintiffs handed over to Defendant all the documents in their possession relevant to the case and paid Defendant a retainer fee of $3,580.00. (Id. ¶¶ 6-7.) According to Plaintiffs, Defendant did not properly prosecute the case (id. ¶¶ 11, 15, 19, 23), and failed to return the monies paid to him in a prompt and timely manner (id. ¶¶ 15, 19, 23).*fn2

II. Discussion

A. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction

Defendant argues that Plaintiffs' Complaint fails to establish a necessary basis for subject matter jurisdiction. In particular, Defendant argues that Plaintiffs have not properly alleged that the amount in controversy is over $75,000 -- the threshold required for diversity jurisdiction under 28 U.S.C. § 1332(a).

"A court faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits and, therefore, an exercise of jurisdiction." Magee v. Nassau County Med. Ctr., 27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998) (citing Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990)). "A party invoking the jurisdiction of the federal court has the burden of proving that it appears to a 'reasonable probability' that the claim is in excess of the statutory jurisdictional amount." Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (quoting Moore v. Betit, 511 F.2d 1004, 1006 (2d Cir. 1975)). The party claiming jurisdiction "must support the jurisdictional amount with competent proof and justify its allegations by a preponderance of the evidence." LaSala v. E*Trade Sec. LLC, No. 05-CV-5869, 2005 WL 2848853, at *3 (S.D.N.Y. Oct. 31, 2005) (internal quotation marks omitted).

Although the plaintiff bears the burden of demonstrating the jurisdictional amount, the burden is "hardly onerous," for it presumes "that the face of the complaint is a good faith representation of the actual amount in controversy." Scherer v. Equitable Life Assurance Soc'y of the U.S., 347 F.3d 394, 397 (2d Cir. 2003) (citing Wolde-Meskel v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999)). To overcome the face of the complaint presumption, the party opposing jurisdiction must show "'to a legal certainty'" that the amount recoverable is below the jurisdictional threshold. See Wolde-Meskel, 166 F.3d at 63 (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938)). The Second Circuit has "set a high bar for overcoming this presumption," Scherer, 347 F.3d at 397, noting that "'the legal impossibility of recovery must be so certain as virtually to negative the plaintiff's good faith in asserting the claim,'" id. (quoting Chase Manhattan Bank, N.A. v. Am. Nat'l Bank & Trust Co. of Chicago, 93 F.3d 1064, 1070-71 (2d Cir. 1996)).

Here, pro se Plaintiffs allege damages well over the jurisdictional threshold. Although Plaintiffs' breach of contract claim could not on its own meet the jurisdictional threshold, Plaintiffs' malpractice claim is not similarly limited, and the Court aggregates Plaintiffs' claims in determining whether the jurisdictional amount is satisfied. See Wolde-Meskel, 166 F.3d at 62 ("When that single plaintiff joins several claims against the defendant, the general rule . . . is that the value of all the claims can be added together -- aggregated -- in determining whether the requisite jurisdictional amount in controversy has been satisfied." (internal quotation marks omitted)). Because Defendant has not demonstrated the legal impossibility of Plaintiffs recovering an amount beyond the $75,000 threshold, the Court will consider the merits of Plaintiffs' allegations.

B. Defendant's Motion to Dismiss for Failure to State a Claim

Defendant seeks dismissal of Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that it fails to state a claim. The Supreme Court has recently clarified the standard for review on a Rule 12(b)(6) motion to dismiss. See Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). In so doing, the Supreme Court abandoned reliance on the oft-quoted refrain from Conley v. Gibson that, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," 355 U.S. 41, 45-46 (1957). Twombly, 127 S.Ct.at 1964-69. Instead, the Court emphasized that "[f]actual allegations must be enough to raise a right to relief above the speculative level," id. at 1965, and "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 1969. A plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974; see also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (concluding that Twombly requires a "flexible plausibility standard, which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible" (internal quotation marks omitted))

A Rule 12(b)(6) motion to dismiss requires a court to "accept as true the factual allegations made in the complaint and draw all inferences in favor of the plaintiffs." Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998); see also Blimpie Int'l, Inc. v. Blimpie of the Keys, 371 F. Supp. 2d 469, 470-71 (S.D.N.Y. 2005). "'In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Glidepath Holding B.V. v. Spherion Corp., No. 04-CV-9758, 2007 WL 2176072, at *10 (S.D.N.Y. July 26, 2007) (quoting Leonard F. v. Israel Disc. Bank of N.Y.,199 F.3d 99, 107 (2d Cir. 1999)).

Where a plaintiff is pro se, the plaintiff's submissions to the court are held to a "less stringent standard [] than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se plaintiffs are "'entitled to a far more generous reading of their pleadings than would otherwise be afforded to one who is represented by an attorney.'" Dimps v. Dist. Council 37, No. 01-CV-1735, 2002 WL 206992, at *2 (S.D.N.Y. Feb. 8, 2002) ...


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