United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Marvin E. Aspen, United States District Court
us is Defendant InfoData Corporation's
(“InfoData”) motion to dismiss Plaintiff
DreamPak, LLC's (“DreamPak”) complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction. (Mot. (Dkt. No. 29).) In
support of our jurisdiction, Plaintiff has submitted a
declaration of one of its vice presidents, (Gamay Decl. (Dkt.
No. 35-1)), which Defendant has moved to strike. (Mot. to
Strike (Dkt. No. 39).) Plaintiff opposes Defendant's
motion to strike, and in the alternative moves for leave to
supplement the record with a declaration from its Senior
Financial Controller. (Mot. for Leave (Dkt. No. 43).) For the
reasons stated below, we deny both Defendant's motion to
dismiss for lack of subject matter jurisdiction and
Defendant's motion to strike the declaration. We likewise
deny Plaintiff's motion for leave to supplement the
record as moot.
order on Defendant's earlier motion to dismiss sets out
the background of this case. (Order (Dkt. No. 26) at 1-5.)
Plaintiff is a Virginia limited liability company that
manufactures beverage enhancers, milk modifiers, and dietary
supplements. (Compl. (Dkt. No. 1) ¶ 1.) Defendant, an
Illinois software sales and consulting company, is “an
expert in the implementation of Enterprise Resource Planning
(‘ERP') software.” (Id. ¶¶
proponent of federal jurisdiction must, if material factual
allegations are contested, prove those jurisdictional facts
by a preponderance of the evidence.” Meridian Sec.
Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006).
Plaintiff has submitted four facts in support of our
jurisdiction, alongside a declaration of its vice president,
Waleed Gamay. (Pl.'s Mem. in Opp. to Def.'s Mot. to
Dismiss (“Resp.”) (Dkt. No. 35) at 7-8 (statement
of jurisdictional facts); Gamay Decl.) Three of
Plaintiff's four jurisdictional facts are uncontested.
First, the parties executed a Software Services Agreement and
Letter of Understanding (“SSA” (Dkt. No. 1-1)) on
September 21, 2015, whereby Defendant agreed to provide and
implement ERP software for Plaintiff. (Resp. at 7, ¶ 1;
Answer (Dkt. No. 34) ¶ 20 (“Defendant admits that
in September of 2015 DreamPak and InfoData executed a
Software Service Agreement . . . .”).) Second, in
return, Plaintiff paid Defendant $82, 178.00 on or about the
date the SSA was executed. (Resp. at 7, ¶ 2; Reply at
11.) Third, on October 28, 2015, Plaintiff paid Defendant an
additional $90, 560.16 for consulting application services.
(Resp. at 7, ¶ 3; Reply at 12.)
fourth jurisdictional fact states, in its entirety,
“Defendant failed to implement the Sage X3 ERP software
package for Plaintiff, and such failure continues to this
day. The software is unusable by Plaintiff for any
purpose.” (Resp. at 8 ¶ 4 (citating Gamay Decl.
¶ 6).) Defendant contests this fact, (Reply at 12), and
moves to strike the Gamay declaration supporting it as
failing to establish Gamay's personal knowledge of the
ERP software's present state, implementation, or
usefulness to Plaintiff. (Mot. to Strike ¶ 3.)
addition, Plaintiff alleges that it spent an additional $33,
000 to license and implement alternative ERP software from
another vendor when Defendant's services proved
inadequate. (Compl. ¶ 54.)
12(b)(1) motion to dismiss challenges the court's subject
matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Jurisdiction is
the “power to decide” and must be conferred upon
the federal court. In re Chi., R. I. & P. R.
Co., 794 F.2d 1182, 1188 (7th Cir. 1986). In determining
whether jurisdiction exists, we may “look beyond the
jurisdictional allegations of the complaint and consider any
evidence submitted on the issue.” Farnik v.
F.D.I.C., 707 F.3d 717, 721 (7th Cir. 2013). A plaintiff
faced with a 12(b)(1) motion to dismiss bears the burden of
establishing that the jurisdictional requirements have been
met. Lujan v. Def. of Wildlife, 504 U.S. 555, 561,
112 S.Ct. 2130, 2136 (1992); Farnik, 707 F.3d at
suit is predicated upon diversity jurisdiction. 28 U.S.C.
§ 1332(a) (“The district courts shall have
original jurisdiction of all 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 . . . .”) Defendant
challenges only whether Plaintiff's claims exceed the
$75, 000 amount-in-controversy threshold. (Mot. ¶ 1.)
district court has an independent duty to ensure that it has
subject-matter jurisdiction. HSBC Bank USA, N.A. v.
Garcia, No. 12 CV 6561, 2014 U.S. Dist. LEXIS 108541, at
*5 (N.D. Ill. Aug. 6, 2014) (quoting Hammes v. AAMCO
Transmissions, Inc., 33 F.3d 774, 778 (7th Cir. 1994)).
The amount in controversy must exceed $75, 000 at the time
the claim is filed for this Court to have jurisdiction in a
diversity suit. Feliberty v. Unumprovident Corp.,
No. 03 C 7569, 2003 U.S. Dist. LEXIS 22840 (N.D. Ill.Dec. 15,
2003) (citing 28 U.S.C. § 1332(a); St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90, 58
S.Ct. 586, 590-91 (1938)). Amount in controversy is measured
from the beginning of the suit and is not affected by
subsequent dismissal of individual claims. Clark v. State
Farm Mut. Auto. Ins. Co., 473 F.3d 708, 711 (7th Cir.
invoke diversity jurisdiction, a plaintiff must demonstrate
“no more than a good faith, minimally reasonable
belief” that the claim is for more than $75, 000.
Neuma, Inc. v. Amp, Inc., 259 F.3d 864, 881 (7th
Cir. 2001) (citing St. Paul Mercury, 303 U.S. at
288-89, 58 S.Ct. at 590). A plaintiff may aggregate the
amount in controversy across all claims against a specific
defendant to satisfy the jurisdictional minimum. LM Ins.
Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 548 (7th
Cir. 2008). However, if a defendant contests the
plaintiff's material factual allegations concerning the
amount in controversy, then the plaintiff must “prove
those jurisdictional facts by a preponderance of the
evidence.” Meridian Sec. Ins. Co. v. Sadowski,
441 F.3d 536, 543 (7th Cir. 2006). The plaintiff must support
contested jurisdictional facts with “competent
proof” showing more than merely “the theoretical
availability of certain categories of damages.”
McMillian v. Sheraton Chi. Hotel & Towers, 567
F.3d 839, 844 (7th Cir. 2009). “It must appear to a
legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal.” St.
Paul Mercury, 303 U.S. at 289, 58 S.Ct. at 590; see
also Meridian Sec. Ins. Co., 441 F.3d at 541
(“Although the proponent of jurisdiction may be called
on to prove facts that determine the amount in controversy .
. . once these facts have been established the
proponent's estimate of the claim's value must be
accepted unless there is ‘legal certainty' that the
controversy's value is below the threshold.”);
Pratt Cent. Park Ltd. P'ship v. Dames & Moore,
Inc., 60 F.3d 350, 354 (7th Cir. 1995) (describing the
“legal certainty” inquiry).
advances three arguments. First, Defendant asserts that we
lack jurisdiction because the “wherefore” clause
in Plaintiff's complaint did not contain an explicit
amount in controversy. (Def.'s Mem. in Support of Mot. to
Dismiss (“Mem.” (Dkt. No. 31) at 3-5.) Second,
Defendant argues that the SSA contains a limitation of
liability clause that limits Plaintiff's claims below the
jurisdictional amount. (Id. at 5-9.) Finally,
Defendant claims that Plaintiff has not offered competent
evidence to ...