Opinion
00 CIV. 9626 (DLC).
July 19, 2001.
Gonzalo Camprubi-Soms, Pro Se, New York, NY.
For Defendant, Ronald Paul Hart, Esq., New York, NY.
OPINION and ORDER
Plaintiff Gonzalo Camprubi-Soms ("Camprubi-Soms") filed this diversity action on December 19, 2000, against defendant Archangel Aranda ("Aranda"), asserting breach of contract, tortious interference, and defamation in connection with a lease agreement with an option to buy a condominium owned by defendant. On February 8, 2001, defendant filed a motion to dismiss, on February 9, plaintiff filed an order to show cause, seeking a preliminary injunction and temporary restraining order against defendant, and, on March 16, defendant moved for summary judgment. This Court referred plaintiff's order to show cause and defendant's motions to dismiss and for summary judgment to Magistrate Judge Freeman, who filed a Report and Recommendation on June 12, 2001 ("Report"), recommending that plaintiff's order to show cause be denied, defendant's motion to dismiss be granted, with leave to replead, and defendant's motion for summary judgment be denied. Because this Court concludes that it does not have subject matter jurisdiction over this action, this action — and, subsequently, plaintiff's order to show cause and defendant's motions to dismiss and for summary judgment — are dismissed.
BACKGROUND
The following facts are asserted in plaintiff's complaint and in documents attached to plaintiff's complaint. On May 25, 1999, plaintiff Camprubi-Soms signed a letter on his letterhead titled "Lease for Condo Unit 8-M at Hudson View West with an Option to Buy" ("Option Agreement") in which Camprubi-Soms agreed to lease a condominium at 300 Albany Street ("Condominium") beginning June 1, 1999, with the option to buy the Condominium for $175,000. The Option Agreement reads, in pertinent part, as follows:
As per our several telephone conversations since your advertising in The New York Times, please execute our preliminary agreement to the following:
1. I will lease the referenced unit at a price of $2,200.00 per month starting June 1, 1999.
2. The unit will be delivered in "AS IS CONDITION" and I will clean, paint, and do whatever it is necessary for the unit to be ready for use. This is to be done at my own cost since the ultimately [sic] purpose is to purchase the unit.
3. The lease agreement is for a period of one (1) year and at any time during this time I will be able to purchase the unit at a price of $175,000.
4. In the event that I do not exercise the option to purchase the unit during period between June 1, 1999 and May 31, 2000, the Seller will be able to market the unit and to sell it and I will vacate within thirty (30) days notice.
5. A full agreement will be executed by the parties as soon as practicable.
This proposal will accomplish both objectives for the Seller. In one hand, the unit will continue to generate revenue, and the second, will have an insider purchaser for the unit at the full asking price.
From my perspective, this agreement will allow me the time to negotiate the best possible terms and conditions for a mortgage. I have already submit [sic] an application to Republic National Bank.
Aranda signed the Option Agreement on June 1, 1999. During June and July of 1999, plaintiff moved in and worked on the Condominium, at a cost of over $45,000.
Plaintiff asserts that defendant misrepresented the condition of the Condominium, and failed to inform plaintiff that the unit was subject to foreclosure litigation pending in state court based upon defendant's failure to pay over $60,000 to the Hudson View Condominium Association.
Plaintiff additionally asserts that defendant attempted to sell the Condominium to third parties, despite plaintiff's repeated attempts to exercise his right to buy. In October 1999, people called plaintiff asking to see the Condominium because Aranda was planning to sell it. Defendant's lawyer wrote plaintiff in October and November of 1999, informing him that defendant had placed the Condominium on the market. On November 23, 1999, defendant's attorney wrote that plaintiff was considered a trespasser and demanded that he vacate the Condominium. In May 2000, defendant's counsel informed plaintiff that his lease would not be extended and, per the Option Agreement, he would be required to vacate the Condominium by the end of the month because defendant had not shown a "good faith intent to exercise the option' to buy. On May 16, 2000, defendant wrote plaintiff, informing him that he would begin eviction proceedings if plaintiff did extend his lease or vacate the Condominium.
On August 14, 2000, Aranda filed an action in Landlord-Tenant Court in the City of New York to evict plaintiff ("Eviction Action"). As part of the Eviction Action, Aranda submitted evidence to the state court that, on August 28, 2000, Camprubi-Soms entered into an agreement with Battery Park Realty, Inc., to sell the Condominium and, in this agreement, represented that he was the owner of the Condominium. On October 4, 2000, prior to a hearing before the Landlord-Tenant court, the parties agreed to settle the Eviction Action if Camprubi-Soms paid Aranda $6,600, and Aranda sold Camprubi-Soms "or his assignee" the Condominium.
In October 2000, plaintiff received an employment offer to work in Paris for two years, commencing December 1, 2000. Campbubi-Soms then wrote Aranda, that he was "looking at selling the apartment in order to recover [his] investment of almost $45,000." Aranda never responded. Plaintiff asserts that Aranda's "refusal to execute a transfer of title" caused Camprubi-Soms "to not be able to accept an employment offer," resulting in losses of over $75,000.
In his complaint, plaintiff seeks: (1) that this Court issue a temporary restraining order, preventing further proceedings in the Foreclosure Action until this action is resolved; (2) a preliminary and permanent injunction enjoining Aranda from filing further actions in state court; (3) an order that Camprubi-Soms pay his monthly rent to the Hudson View Condominium Association and the Battery Park City Authority; and (5) $75,000 in compensatory damages plus fees, costs, and punitive damages.
On February 8, 2001, defendant filed a motion to dismiss on the grounds that this Court does not have subject matter jurisdiction over this action, and it fails to state a claim. On February 9, 2001, plaintiff filed an order to show cause, seeking a preliminary injunction and a temporary restraining order preventing defendant from threatening plaintiff, filing any action in state court seeking possession of the Condominium, entering into any agreements for the sale of the Condominium, and defaming plaintiff. On March 16, 2001, defendant moved for summary judgment for the same reasons raised in the motion to dismiss. In her Report, Magistrate Judge Freeman recommended that the relief plaintiff sought in the order to show cause be denied, that all of plaintiff's claims — for breach of contract, tortious interference, fraud and defamation — be dismissed, with leave to replead, and that defendant's motion for summary judgment be denied. Camprubi-Soms has filed objections to the Report. Because this Court concludes that it does not have subject matter jurisdiction over this action, it will not reach the merits of the Report or Camprubi-Soms' objections.
Defendant is understood, in his motion to dismiss based on lack of subject matter jurisdiction, to assert both that the subject matter of this action was being "properly litigated" in state court, and that the amount in controversy did not exceed $75,000.
DISCUSSION
A district court has subject matter jurisdiction based on diversity of citizenship if "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). The party invoking the federal court's jurisdiction has the burden of proving that it appears to a "reasonable probability" that the claim, when the action was filed, was worth in excess of $75,000. Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000). See also Chase Manhattan Bank v. American Nat'l Bank and Trust Co., 93 F.3d 1064, 1070 (2d Cir. 1996). The plaintiff must establish that the claim is worth the jurisdictional amount by presenting "competent proof," and must establish jurisdiction "by a preponderance of evidence." United Food Commercial Workers Union, Local 919 v. CenterMark Properties, 30 F.3d 298, 305 (2d Cir. 1994) (citation omitted). See also Gilman v. BHC Securities, Inc., 104 F.3d 1418, 1421 (2d Cir. 1997).
Where a defendant disputes the existence of diversity jurisdiction based upon the amount in controversy, the sum claimed by the plaintiff controls if it is "apparently made in good faith." Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (citation omitted). "[I]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." Id. (citation omitted). In making this determination,
the legal impossibility of recovery must be so certain as virtually to negate the plaintiff's good faith in asserting the claim. If the right of recovery is uncertain, the doubt should be resolved in favor of the subjective good faith of the plaintiff.Chase, Manhattan Bank, 93 F.3d at 1070 (citation omitted). In his complaint, plaintiff seeks $75,000 in damages and $20,000 in punitive damages. The compensatory damages plaintiff describes in his complaint are $45,000 worth of improvements he made to the Condominium, and over $75,000 in damages resulting from his inability to accept an employment offer in Paris. In plaintiff's oppositions to defendant's motion to dismiss and motion for summary judgment, he reasserts that the damages in this action meet the jurisdictional requirement.
Plaintiff has not met his burden of producing competent evidence that establishes, by a preponderance of the evidence, that the amount in controversy in this action exceeds $75,000. Indeed, plaintiff has produced no proof of his damages beyond a signed statement by an individual who was paid $7,840 by plaintiff to replace the Condominium's floors, repair the walls and paint the living room, dining area, common hallways, and bedroom, and make improvements in the bathroom.
Although the agreement underlying this action includes an option for Camprubi-Soms to purchase the Condominium for $175,000, plaintiff does not appear to be suing to enforce that option, even liberally construing his complaint. Moreover, nowhere in his opposition to dismiss or his opposition to summary judgment has plaintiff asserted that he suffered damages arising from his inability to exercise his option to buy the Condominium beyond those described in his complaint.
In addition, it is clear to a legal certainty that the punitive damages and consequential damages that plaintiff seeks in his complaint are unrecoverable in this action and can not, therefore, satisfy the amount in controversy requirement.
Punitive damages are generally unrecoverable in an action, such as this one, the gravamen of which is a contractual dispute. Punitive damages are available where the conduct constituting, accompanying, or associated with the breach of contract is first actionable as an independent tort for which compensatory damages are ordinarily available, and is sufficiently egregious. . . to warrant the additional imposition of exemplary damages. Thus, a private party seeking to recover punitive damages must not only demonstrate egregious tortious conduct by which he or she was aggrieved, but also that such conduct was part of a pattern of similar conduct directed at the public generally.United States v. Merritt Meridian Const. Corp., 95 F.3d 153, 160-61 (2d Cir. 1996) (citation omitted) (emphasis in original). See also New York Univ. v. Contimental Ins. Co., 639 N.Y.S.2d 283, 287 (N.Y. 1995). It is unnecessary to determine whether plaintiff's complaint alleges torts "sufficiently egregious" to justify punitive damages because plaintiff clearly does not allege that defendant's conduct was part of a larger pattern directed at the public generally. Plaintiff can not, therefore, recover punitive damages in this action, and the $20,000 he claims in punitive damages in not be considered in determining the amount in controversy. See Gucciardo v. Reliance Insurance Co., 84 F. Supp.2d 399, 404 (E.D.N.Y. 2000).
It is also clear to a legal certainty that plaintiff can not recover any losses resulting from the alleged job opportunity in Paris that he was not able to pursue as a result of this contractual dispute. In order to recover on a claim for losses resulting from a breach of contract, the party asserting the claim must meet three requirements.
First, it must be demonstrated with certainty that such damages have been caused by the breach and, second, the alleged loss must be capable of proof with reasonable certainty . . . . In addition, there must be a showing that the particular damages were fairly within the contemplation of the parties to the contract at the time it was made.Travellers Int'l, A.G. v. Trans World Airlines, 41 F.3d 1570, 1577 (2d Cir. 1994) (citation omitted) (emphasis supplied). See also Schonfeld v. Hilliard, 218 F.3d 164, 172 (2d Cir. 2000) Plaintiff does not allege, and there is no reason to believe, that damages resulting from plaintiff's alleged job opportunity in Paris were within the parties' contemplation at the time that the Option Agreement was signed. In addition, plaintiff has produced no evidence to support his assertion that he had an employment opportunity in Paris or that there was a causal relationship between defendant's alleged contractual breach and plaintiff's alleged Paris employment opportunity. Under these circumstances, the losses plaintiff alleges resulted from this employment opportunity cannot be considered in determining the amount in controversy. Compare Schoenfeld, 218 F.3d at 175 with Travellers, 41 F.3d at 1572-73.
Because it is clear to a legal certainty that plaintiff's claim is for less than $75,000, this action is dismissed for lack of subject matter jurisdiction.
SO ORDERED: