On September 8, 1989, plaintiffs Charles and Patricia Bellock (the "Bellocks") filed a one count complaint against Orkin, alleging that Orkin violated their right to privacy by using their name in telephone solicitations which promoted Orkin's services in their Hinsdale, Illinois neighborhood. The Bellocks acknowledge that "in or about 1986," Orkin performed pest control services at their residence. Complaint, para. 10. The Bellocks claim that in November of 1988, Orkin phoned households in their neighborhood
and told residents that the Bellocks had a rodent problem and were Orkin customers. Complaint, para. 11. The Bellocks allege that Orkin's use of their name in connection with the solicitation of its services caused them "extreme embarrassment and humiliation and . . . severe mental pain and anguish," and diminished the value of their property.
The Bellocks allege diversity (pursuant to 28 U.S.C. § 1332(a)(1)) as the sole basis for federal jurisdiction, claiming that they and Orkin are citizens of different states and that the amount in controversy, exclusive of interest and costs, exceeds $ 50,000. Orkin has moved to dismiss the complaint for lack of subject matter jurisdiction on the grounds that the amount in controversy does not exceed $ 50,000.
For the purposes of Fed. R. Civ. P. 12(b)(1), the amount in controversy claimed by a plaintiff in good faith will be determinative on the issue of jurisdictional amount, unless it appears to a legal certainty that the claim is for less than that required by the rule. Lichter v. Paine, Webber, Jackson & Curtis, Inc., 570 F. Supp. 533 (N.D. Ill. 1983). However, when the court's jurisdiction is challenged as a factual matter, the court is not bound to accept the allegations of the plaintiff's complaint. Lasalle Messinger Paper Co. v. Climax Press, Inc., No. 89 C 3661 (N.D. Ill. August 14, 1989) (available on LEXIS, Genfed library, Dist file). Where jurisdiction is challenged, the party invoking the jurisdiction bears the burden of supporting its jurisdictional allegations by "competent proof." Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979), citing, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936) ("the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence"). See Lasalle Messinger, slip op. at 5. The plaintiff is entitled to considerable latitude in supporting his allegations; he must be given the benefit of any facts he could conceivably prove in support of his allegations. Lichter, 570 F. Supp. at 536.
In their Response to Defendant's Motion to Dismiss ("Response"), the Bellocks assert five different damage theories in an effort to show that at least $ 50,000 is in controversy in this case.
The first theory is based upon general allegations of "compensation for . . . mental anguish, embarrassment and humiliation." Response, p. 9. The only evidence before the court supporting this damage theory is found in plaintiffs' interrogatory responses which Orkin attached as an exhibit to its motion. In Interrogatory 17, plaintiffs are asked to describe the mental anguish, humiliation and embarrassment which they allegedly suffered. The Bellocks respond: "See answers to interrogatories 10 and 11 above. People around the neighborhood and the office continually make jokes about the Bellocks' 'Rodent Problem.'" Motion to Dismiss, Exhibit B, p. 14. In response to Interrogatory 10, the Bellocks state, in essence, that their anguish is caused by the knowledge that: "friends and neighbors believe or may believe that the Plaintiffs were so . . . 'money hungry' . . . as to allow the use of their names for such commercial purposes"; "people think or may think that the Plaintiffs are sloppy, untidy, messy, dirty . . . [and] are also likely to believe that Mrs. Bellock is a terrible homemaker"; and "people . . . may be afraid to go to the Plaintiffs' home for fear of coming into contact with rodents." Motion to Dismiss, Exhibit B, p. 8.
The Bellocks' second damage theory is that they are entitled to "the commercial value of their names, i.e., what Orkin should pay the Bellocks for the use of their names." Response, p. 9. The Bellocks provide no evidence of what this amount should be.
The Bellocks claim that Orkin's profits may be used as a third measure of damages. They claim that if four to twelve people hired Orkin after hearing the Bellocks' name mentioned in a solicitation call, damages under this theory would be $ 5,200 to $ 15,600, assuming that Orkin charges $ 1,300 per household for its services.
Notably, the Bellocks have not presented "competent proof" that four to twelve people received Orkin's offending solicitation.
As their fourth damage theory, plaintiffs state that the value of their home has been diminished as a result of Orkin's actions. They claim that the value of their house has been diminished by up to 25% due to Orkin's solicitation of their neighbor(s). In support of their devaluation theory, the Bellocks have supplied the court with a letter written by Sylvester J. Kerwin, Jr., a professional real estate appraiser. In the letter, Mr. Kerwin renders a general opinion on the potential effect of an "adverse rumor" on the value of real estate, but he makes no attempt to appraise the Bellock home or to estimate the effect of the instant "rumor" on the value of plaintiffs' residence. Mr. Kerwin writes:
Some of the types of adverse factors, or "rumors" that can have a negative effect upon market value of residential properties include murders or deaths of individual(s) by unusual circumstances, sickness or incurable diseases, rodents, termites or bug infestation, haunted or spiritual occurrences, as well as other similar "unusual" events.