The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge
MEMORANDUM - DECISION AND ORDER
This breach of contract and attorney malpractice action was brought by plaintiff Jean Lee ("Lee") against defendant Robert A. Durr ("Durr"). Durr has cross-complained against third-party defendant Liberty Insurance Underwriters, Inc. ("Liberty"), the issuer of Durr's attorney malpractice insurance policy, for denying coverage and refusing to defend Durr in the underlying action. Jurisdiction based on diversity and proper venue are asserted pursuant to 28 U.S.C. §§ 1332(a) and 1391(a). Currently before the court is Liberty's motion for summary judgment (Doc. No. 46), and Durr's motion to dismiss the complaint pursuant to Fed. R. Civ. P. Rule 12(c) and 12(h)(2)(B) or for lack of subject matter jurisdiction, or in the alternative, for summary judgment (Doc. No. 53). For the reasons set forth below, Durr's motion to dismiss for lack of subject matter jurisdiction is granted. Durr's third party claims against Liberty are also dismissed for lack of subject matter jurisdiction, and Liberty's motion for summary judgment is denied as moot.
I. Facts and Procedural History
Lee, a New Jersey resident at the time she filed the current malpractice action, was involved in an incident at the Keansburg Amusement Park, Keansburg, New Jersey, on June 9, 2001. On that date, Lee was seated in a roller coaster car waiting to start her ride on the WildKat Roller Coaster when another car that was completing its ride failed to brake as it came into the station. The car was traveling at about 5 miles per hour when it collided with an empty roller coaster car which in turn bumped the car in which Lee was sitting. Lee was taken by ambulance to a local hospital where she complained of whiplash to her back and neck. Lee also asserts that she had pain, redness and swelling in her right foot, and that a few months after the accident she developed a pea-sized growth on that foot.
Lee, who claimed to be a resident of New York State at the time of the incident, contacted an attorney in Syracuse, New York who had represented her in a criminal matter. That lawyer was unable to represent her, so he referred Lee to Durr. Lee contacted Durr by phone on or about June 15, 2001, and Durr agreed to take her case on a contingency basis. On June 7, 2004, within the statutory time frame for filing a personal injury case in New York, Durr filed Lee's personal injury lawsuit in Supreme Court for the State of New York, in Onondaga County. See Jean Lee v. Keansburg Amusement Park, and Jersey Shore beach & Boardwalk Company a/k/a/ Jersey Shore Beach & Boardwalk, Inc., Index No. 2004-3420, June 7, 2004.
The complaint in that action stated that Lee was and continues to be a resident of Onondaga County.*fn1 Defendants in that action removed the case to this court on July 5, 2004 (Case No. 5:04-cv-771 (NPM/DEP)) and thereafter filed a motion to correct the case caption and to dismiss the complaint or transfer the action to the District of New Jersey. After oral argument held on December 22, 2004, this court found that it did not have jurisdiction over the matter, and transferred Lee's case to the District of New Jersey. On March 7, 2005, Andrew John Calcagno of New Jersey was substituted as attorney of record, replacing Durr, who signed as withdrawing attorney. Doc. No. 68, Exh. 10. On April 1, 2005, the District of New Jersey court dismissed Lee's case. Doc. No 68, Exh. 1.
Lee alleges in her current complaint that she tried in vain to reach Durr to inquire about the status of her case. Lee alleges that she traveled to Durr's office in Syracuse, New York, on September 11, 2007, and at that meeting, without corroborating witnesses present, Durr allegedly told Lee that he had committed malpractice and that Lee should sue him for same. Durr denies this allegation and states that Lee did not inform him of any intention to sue him for malpractice. He asserts that he was informed of her intent to do so when he was served with a summons and complaint alleging malpractice on April 28, 2008. When Durr received the summons and complaint, he notified Liberty, his professional liability insurance company. Liberty assigned Durr an attorney who drafted the original answer on Durr's behalf, but in June of 2008, Liberty disclaimed its duty to defend and indemnify Durr. Liberty's subsequent motion for summary judgment repeats Lee's allegations almost verbatim and cites a lack of contractually prescribed notice as the reason for its denial of Lee's defense and indemnification.
Magistrate Judge Peebles permitted Durr to file his motion to dismiss and all subsequent responses and replies in the traditional fashion, due to the fact that "the plaintiff has been concerned throughout this proceeding about the confidentiality of information concerning her criminal, medical and mental health histories ... which might be embarrassing to her." (Doc. No. 42).*fn2
In his motion, Durr asks the court to grant judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) & 12(h)(2)(B) and dismiss the complaint, but if the court rules that the complaint states a claim for legal malpractice, Durr asks the court to grant summary judgment in his favor pursuant to Fed. R. Civ. P. Rule 56. Durr's third argument is one that the court must address first: that this court lacks subject matter jurisdiction over the instant action because plaintiff has failed to prove to a reasonable probability that the amount in controversy requirement of $75,000.00 has been met.
A. Subject Matter Jurisdiction
"The subject matter jurisdiction of the federal courts is limited. Federal jurisdiction is available only when a 'federal question' is presented, 28 U.S.C. § 1331, or when the plaintiff and defendant are of diverse citizenship and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332." Amadasu v. Ngati, 2006 WL 842456 at * 6 (E.D.N.Y. 2006). "Even where the parties are satisfied to present their disputes to the federal courts, the parties cannot confer subject matter jurisdiction where the Constitution and Congress have not. The absence of such jurisdiction is non-waivable; before deciding any case we are required to assure ourselves that the case is properly within our subject matter jurisdiction." Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir.2001).
Stated differently, "[t]he diversity statute confers original jurisdiction on the federal district courts with respect to 'all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.' 28 U.S.C. § 1332(a). Federal Rule of Civil Procedure 12(b)(1) authorizes motions to dismiss for lack of subject matter jurisdiction." Scherer v. Equitable Life Assurance Society of U.S., 347 F.3d 394, 397 (2d Cir. 2003). "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 ... however, ... we recognize 'a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy.'" Id. (internal citations omitted). "To overcome the face-of-the-complaint presumption, the party opposing jurisdiction must show 'to a legal certainty' that the amount recoverable does not meet the jurisdictional threshold ... The legal impossibility of recovery must be so certain as virtually to negative the plaintiff's good faith in asserting the claim." Id. For the court to make a determination on this issue, the amount in controversy must be measured "as of the day of the complaint. Once jurisdiction has attached, it cannot be ousted by subsequent events." Id. "[D]amages in a legal malpractice case are measured by reference to the value of the claim lost." Robinson v. Holder, 2008 WL 2875291 AT * 2 (S.D.N.Y. 2008) (citing Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 780 N.Y.S.2d 593, 596 (1st Dep't 2004). In the case at bar, Lee demands judgment against Durr for compensatory damages in the amount of one million dollars, punitive damages in the amount of one million dollars, interest from June 9, 2003, plus costs. The court must now look to the value of the claim lost, if any, in determining the amount in controversy in the present case. Durr submits opinion evidence from a legal expert licensed in New Jersey which opines that even assuming 100% liability in plaintiff's favor, Lee's injuries would be no more than $10,000 in a New Jersey court. Lee has submitted unsworn testimony from a licensed attorney in New Jersey that the underlying case had an approximate value of $90,000.00. What Lee's counsel fails to address is the credibility issue that would confront a jury if this case had gone to trial on the merits.
Lee has sworn in her declaration, inter alia, that despite the fact that her physical and mental suffering was caused by the accident and by Durr's alleged disrespect and neglect, she made no mention of her foot pain to her psychiatric care professionals "because they were not capable of helping me with my foot pain, so it did not seem appropriate for me to speak to them about it." Id. at ¶ 67. Lee has submitted medical documentation that reveals, inter alia, the reason she was taking prescribed painkillers was pain she ...