The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion to Dismiss. For the reasons stated herein, the Motion is granted and the Complaint is dismissed without prejudice.
Plaintiff, R. Tamara de Silva, is a Chicago resident who has an idea for a computer program that can predict changes of volatility in the trading markets. She claims she developed proprietary algorithms and methods to measure and predict volatility changes. Defendant, Salvatore Cinquegrani, is a California resident and the CEO and owner of several software development firms.
For a time the two lived close to one another (the Complaint does not say where) and were "friendly with one another." Pl.'s Compl. 2. Plaintiff alleges Defendant promised her he would help her translate her ideas into cold, hard computer code. Upon this representation, she says, she abandoned the computer programmer with whom she was working. Since January 2011, she spent more than 100 hours with Defendant working up a software program.
But, as is so often the case when things reach the Court, the two had a falling out. On June 20, 2011, Plaintiff demanded her information back as well as the software that had been developed to that point. She says Defendant initially promised in writing to do so, but then reneged, swearing instead to delete the code.
Plaintiff claims breach of contract and promissory estoppel. Defendant seeks to dismiss both claims under Federal Rules of Civil Procedure 4(m) and 12(b)(6). He also disputes that the amount in controversy is greater than $75,000 and so seeks dismissal under Rule 12(b)(1) for lack of jurisdiction under 28 U.S.C. § 1332(a).
On a motion to dismiss, all of a plaintiff's allegations are treated as true. FED. R. CIV. P. 12(b)(6); Wigod v. Wells Fargo Bank, N.A., No. 11-1423, 2012 U.S. App. LEXIS 4714, at *2 (7th Cir. March 7, 2012). Complaints will survive a motion to dismiss if they contain sufficient factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). However, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1940.
A. Subject Matter Jurisdiction
Defendant challenges Plaintiff's contention that the software at issue here is worth in excess of $75,000. If that is true, it would destroy diversity jurisdiction.
A party that chooses federal court must set out the basis of federal jurisdiction and prove any contested factual allegation. Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540 (7th Cir. 2006). Uncontested claims of an amount in controversy are generally accepted unless it appears to a legal certainty that the claim is really for less than the jurisdictional amount. McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009). However, where the defendant challenges the plaintiff's allegation of the amount in controversy, the plaintiff must support its assertion with competent proof. Id. To satisfy this burden, a party must do more than point to the theoretical availability of certain categories of damages. Id.
In McMillian, defendants challenged the amount in controversy because Plaintiffs' complaint had only pled medical expenses far below $75,000. Plaintiffs responded by contending that their claims for future medical expenses and pain and suffering accounted for the rest. The District Court agreed, and found jurisdiction. The Seventh Circuit overruled, noting that plaintiffs had not submitted "competent proof" of this, such as documentary or testimonial evidence that would show the necessity for future ...