United States District Court, S.D. New York
Daniel Suarez: David Abrams.
Mosaic Sales Solutions U.S. Operating Co., LLC: Michael R.
Phillips McGuireWoods LLP.
Mosaic Sales Solutions U.S. Operating Co., LLC: Philip A.
Goldstein McGuireWoods LLP.
MEMORANDUM OPINION & ORDER
COTE, UNITED STATES DISTRICT JUDGE
Daniel Suarez (“Suarez”) brings this lawsuit
alleging that the defendant Mosaic Sales Solutions U.S.
Operating Co., LLC (“Mosaic”) unlawfully
rescinded a job offer it made to Suarez based on Suarez's
criminal record. Suarez asserts that Mosaic did not follow
the procedures of the New York City Fair Chance Act
(“NYCFCA”). Mosaic moves to dismiss the amended
complaint (“FAC”) pursuant to Fed.R.Civ.P. Rule
12(b)(1) on the basis that there is no jurisdiction over this
action since Suarez has failed to plead a claim for damages
in excess of $75, 000. For the following reasons, the motion
FAC, Suarez asserts that in October 2016 Mosaic offered him a
permanent position promoting electronics at a department
store in New York City. Suarez quit his prior job based on
Mosaic's job offer. Mosaic ran a criminal background
check on Suarez and discovered that he had two misdemeanor
convictions. In November 2016, Mosaic informed Suarez that
the job offer was rescinded. Suarez ultimately found another
job. He seeks damages “in an amount not more than $100,
000, ” including lost wages, compensatory damages,
punitive damages, and attorneys' fees and costs.
claim 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.” Morrison v. Nat'l Austl. Bank Ltd.,
547 F.3d 167, 170 (2d Cir. 2008) (citation omitted). In
reviewing a motion to dismiss under Rule 12(b)(1), a court
“must accept as true all material factual allegations
in the complaint, but [is] not to draw inferences from the
complaint favorable to plaintiffs.” J.S. ex rel.
N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.
2004). Courts may consider evidence outside of the pleadings
--such as affidavits -- to resolve jurisdictional issues, but
may not rely on “conclusory or hearsay”
statements contained in the affidavits. Id.
asserting subject matter jurisdiction must prove its
existence by a preponderance of the evidence. Morrison, 547
F.3d at 170. “Diversity jurisdiction exists over 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.” Hallingby v.
Hallingby, 574 F.3d 51, 56 (2d Cir. 2009) (citation
omitted); see 28 U.S.C. § 1332(a). The party
invoking a federal court's jurisdiction must show a
“reasonable probability” that the threshold
amount in controversy is satisfied, and courts recognize
“a rebuttable presumption that the face of the
complaint is a good faith representation of the actual amount
in controversy.” Pyskaty v. Wide World of Cars,
LLC, 856 F.3d 216, 223 (2d Cir. 2017) (citation
omitted). A defendant may rebut that presumption by
demonstrating “to a legal certainty that the plaintiff
could not recover the amount alleged or that the damages
alleged were feigned to satisfy jurisdictional
minimums.” Id. (citation omitted). Punitive
damages may be included for the purposes of satisfying the
jurisdictional minimum if they are permitted under the
controlling law. A.F.A. Tours, Inc. v. Whitchurch,
937 F.2d 82, 87 (2d Cir. 1991). Courts consider the ratio of
punitive damages to the actual harm inflicted when assessing
punitive damages awards, and “in practice, few awards
exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will satisfy
due process.” Stampf v. Long Island R. Co.,
761 F.3d 192, 210 (2d Cir. 2014) (citation omitted).
Attorneys' fees may not be included in calculating the
jurisdictional amount “unless they are recoverable as a
matter of right.” Givens v. W. T. Grant Co.,
457 F.2d 612, 614 (2d Cir. 1972), vacated on other grounds,
409 U.S. 56 (1972).
alleges a violation of the NYCFCA, which makes it illegal for
employers to deny employment on the basis of a prior criminal
conviction without following designated processes. N.Y. City
Admin. Code § 8-107. If a violation occurs, individuals
may recover damages, including punitive damages and
“reasonable attorney's fees, expert fees and other
costs.” Id. § 8-502.
does not allege an amount in controversy exceeding $75, 000.
It simply seeks damages “in an amount not more than
$100, 000.” Even if the FAC is construed as alleging an
amount in controversy in excess of $75, 000, Mosaic has
rebutted the presumption that this is a good faith
representation of the actual amount in controversy.
the FAC alleges that Suarez was advised that he was being
hired for a permanent position, through this motion Mosaic
has offered evidence (1) that Suarez was hired for a
seasonal, part-time position scheduled to last approximately
ten weeks, resulting in total pay of approximately
$2400; and (2) that Mosaic offered Suarez six
permanent (i.e. non-seasonal) jobs after it discovered it had
rescinded its prior job offer in error. Suarez does not
dispute these contentions in his opposition to this motion.
Moreover, as noted above, the FAC indicates that Suarez
ultimately found other employment after Mosaic rescinded the
original job offer. Given these facts, an award for back pay,
any punitive damages, and any attorneys' fees would be a
fraction of the jurisdictional minimum.
opposes dismissal with a single argument. He contends that an
award of compensatory damages can be reasonably expected to
fill the gap to satisfy the jurisdictional minimum. The FAC
alleges that Suarez “was extremely hurt, humiliated,
and frustrated by [Mosaic's] treatment. He gained weight
from the stress and also suffered from a great deal of stress
from being caught short and unable to pay his bills even
though he ultimately found another job.” Mosaic's
evidence and the allegations in the FAC, taken together,
rebut the presumption that an award of compensatory damages
could be large enough in this case to supply the remaining
amount necessary to reach the jurisdictional minimum. It is
now undisputed that the job Suarez ...