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Moreno v. Samuels

United States District Court, N.D. Illinois, Eastern Division

December 30, 2019

BANI MORENO, Plaintiff,
v.
ELLIOT M. SAMUELS, Defendant.

          MEMORANDUM OPINION AND ORDER

          GABRIEL A. FUENTES MAGISTRATE JUDGE

         Defendant Elliot M. Samuels ("Samuels") moves to dismiss pro se plaintiff Bani Moreno's ("Moreno") amended complaint. For the reasons stated below, the motion is granted under Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure for lack of sufficient allegations giving rise to subject-matter jurisdiction.

         BACKGROUND

         Moreno's lawsuit claims that Samuels, a Chicago attorney, breached an oral agreement he made with Moreno's family members to represent Moreno in a criminal appeal. Samuels moved to dismiss the complaint (D.E. 60), and on September 27, 2019, the Court denied that motion in part (D.E 63). In its September 27 Order, the Court declined to revisit its earlier decision allowing the lawsuit to proceed upon the Court's initial review or "screening" of the suit under 28 U.S.C. § 1915(e)(2). (See generally D.E. 10.) The Court's earlier order on initial review considered, for purposes of Section 1915(e)(2), whether the action should have been dismissed as frivolous or malicious, or for failure to state a claim on which relief could be granted. See id The Court, per Judge St. Eve, on June 26, 2017, declined to dismiss the action at the Section 1915(e)(2) initial review stage on either ground and found that Moreno's amended complaint adequately pleaded a basis for diversity jurisdiction. Id.

         This matter now is before the magistrate judge on consent. (D.E. 23, 54.) The Court has treated Samuels' current motion to dismiss as a request to reconsider the Court's June 2017 determination that jurisdictional facts were adequately pleaded. In the September 27 Order, the Court notified the parties that it was considering the diversity jurisdiction question more closely, and that they should focus their remaining briefing on whether Moreno's amended complaint set forth claims under which he could recover more than $75, 000 as necessary for diversity jurisdiction. (D.E. 63).

         Moreno invoked diversity jurisdiction to file this case in federal court. Am. Compl. (D.E. 11) at 1. Diversity jurisdiction only exists if the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a); see also, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (explaining that the amount-in-controversy requirement exists to "ensure that diversity jurisdiction does not flood the federal courts with minor disputes"). In Samuels' motion to dismiss, he argues that the amount in controversy does not and cannot exceed $75, 000.

         To establish diversity jurisdiction, a plaintiff must support his assertion of the amount in controversy with competent proof and do more than "point to the theoretical availability of certain categories of damages." McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844-45 (7th Cir. 2009). "[U]nless recovery of an amount exceeding the jurisdictional minimum is legally impossible, the case belongs in federal court." Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3).

         The Court concludes, on a closer examination of Moreno's claims, that he has not pleaded a basis for diversity jurisdiction because his amended complaint does not give rise to damages claims of more than $75, 000. Moreno claims the following damages:

• "actual damages in the amount of $12, 500 for the fees paid";
• "compensatory damages in the amount of [$] 150, 000. [sic] for the sale of Plaintiffs home to satisfy legal fees incurred on the Appeal Process"; and
• "$200, 000. [sic] in irreparable damages for the pain defendant has caused to Plaintiff and his family members"; and
• "$80, 000. [sic] in punitive damages."

Am. Compl. at 6. Moreno does not specify what cause(s) of action would allow him to recover any of these categories of damages. In his briefing, he has argued that in addition to a claim for breach of contract by Samuels, he asserts a common-law fraud claim. The Court addresses his recoverable damages under both theories below.

         I. ...


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