United States District Court, D. Connecticut
A. BOLDEN UNITED STATES DISTRICT JUDGE
25, 2018, Wells Fargo Bank, N.A. (“Defendant” or
“Wells Fargo”) moved to dismiss the Amended
Complaint filed on March 26, 2018 by Walter Lippmann and
36-38 North Water Street LLC (“Plaintiffs”).
Motion to Dismiss, dated May 25, 2018, ECF No. 32.
the Court turns to the merits of the motion, it must consider
whether it has jurisdiction over this case, as the Court has
“an independent obligation to consider the presence or
absence of subject matter jurisdiction sua
sponte.” Joseph v. Leavitt, 465 F.3d 87,
89 (2d Cir. 2006) (citing Travelers Ins. Co. v.
Carpenter, 411 F.3d 323, 328 (2d Cir. 2005)).
time of removal, Wells Fargo represented that Plaintiffs were
alleging both a federal claim under the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et
seq., and state law claims. See Notice of
Removal, dated June 5, 2017, ECF No. 1, at 2. Wells Fargo
therefore alleged two different bases for the Court's
jurisdiction: (1) federal question jurisdiction under 28
U.S.C. § 1331 over the federal claim and supplemental
jurisdiction under 28 U.S.C. § 1441(a) over the state
law claims; and (2) diversity jurisdiction under 28 U.S.C.
§ 1332 over all the state law claims. Id. at
course of oral argument over the original Complaint, however,
Plaintiffs' counsel clarified that he was not making a
claim under the FCRA. See Transcript of Proceedings,
dated Jan. 30, 2018, ECF No. 27, at 23:12-24:13.
Amended Complaint also does not appear to state a claim under
the Fair Credit Reporting Act. See Amended
Complaint, dated Mar. 26, 2018, ECF No. 26, at 7-9. Instead,
it appears to reference that statute solely as a source of a
duty to protect clients' privacy rights. Id. at
9, ¶ 15 (“The debit of the wrong account and
reporting of delinquency was improper, unwarranted and
without basis. Each time it occurred it was contrary to the
rights of Lippmann and the LLC and the result of reckless
indifference to those rights secured by the Mortgage and
deposit agreements, and provisions of federal, state and
common law regarding defamation of character, privacy,
private information, protection of private and personal data,
disclosure of such data and provisions of the Fair Credit
Reporting Act.”). As a result, there no longer appears
to be any federal claim here.
Court may only retain jurisdiction over the remaining state
law claims if the case falls within its diversity
jurisdiction under 28 U.S.C. § 1332. Defendant's
Notice of Removal argued that there was complete diversity
between the parties, and nothing in the pleadings leads the
Court to find otherwise. See Notice of Removal at 4.
clear, however, is whether the amount in controversy in the
Amended Complaint is greater than $75, 000, as is required by
the diversity jurisdiction statute.
the amount in controversy is established by the face of the
complaint and the dollar-amount actually claimed. Horton
v. Liberty Mut. Ins. Co., 367 U.S. 348, 353 (1961);
Scherer v. Equitable Life Assurance Soc'y of
U.S., 347 F.3d 394, 397 (2d Cir. 2003). The Second
Circuit “recognizes a rebuttable presumption that the
face of the complaint is a good faith representation of the
actual amount in controversy.” Ocean Ships, Inc. v.
Stiles, 315 F.3d 111, 116 (2d Cir. 2002). Here, however,
neither the original nor Amended Complaint assert the amount
of damages sought.
January 25, 2019 oral argument on the motion to dismiss the
Amended Complaint, Plaintiffs' counsel stated that he
could not in good faith, at that time, state that more than
$75, 000 was in controversy. And while Defendant's
counsel maintains that more than $75, 000 is in controversy,
Defendant has not supported that assertion with any facts in
its Notice of Removal, or pointed to other facts in the
record demonstrating that this is the case. See
Notice of Removal at 5 (explaining Defendant's belief
that amount in controversy is met because it “is
dictated by Plaintiff's claims” and because
Plaintiffs seek a variety of damages, interest, costs,
attorney's fees, and punitive damages).
party asserting federal jurisdiction must demonstrate federal
subject matter jurisdiction by competent proof.”
Royal Ins. Co. v. Jones, 76 F.Supp.2d 202, 204 (D.
Conn. 1999) (citing McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)). However, “[o]nly
where it ‘appear[s] to a legal certainty that the claim
is really less than the jurisdictional amount' can the
court dismiss an action for lack of subject matter
jurisdiction.” Fallstrom v. L.K. Comstock &
Co., No. 3:99-cv-952 (AHN), 1999 WL 608835, at *1 (D.
Conn. July 13, 1999) (quoting Saint Paul Mercury Indem.
Co. v. Red Cab. Co., 303 U.S. 283, 288-89 (1938)).
as here, “the pleadings are inconclusive, ”
“courts may look to documents outside the pleadings to
other evidence in the record to determine the amount in
controversy.” Yong Qin Luo v. Mikel, 625 F.3d
772, 775 (2d Cir. 2010). “[F]ederal courts permit
individual plaintiffs, who are the masters of their
complaints, to avoid removal to federal court, and to obtain
a remand to state court, by stipulating to amounts at issue
that fall below the federal jurisdictional requirement,
” so long as the stipulation is “legally binding
on all plaintiffs.” Standard Fire Ins. Co. v.
Knowles, 568 U.S. 588, 595-96 (2013). The Second
Circuit, however, has also made “clear that a plaintiff
cannot seek to deprive a federal court of jurisdiction by
reducing her demand to $75, 000.00 or less once the
jurisdictional threshold has been satisfied.”
Luo, 625 F.3d at 776.
the jurisdictional threshold has not been clearly satisfied,
if Plaintiffs wish to stipulate that the amount in
controversy is less than $75, 000 and wish to be bound by
that stipulation, they must do so and file any such
stipulation with the Court by February 15,