Dill v. Ron's Golf Car Rental, Inc.
ORDER: Defendant's Motion 45 to Dismiss is DENIED. Signed by Judge Janet Bond Arterton on 07/12/2013. (Bonneau, J)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
THOMAS DILL, THOMAS R. DILL, and
RON’S GOLF CAR RENTAL, INC.,
Civil No. 3:12-cv-00137 (JBA)
July 12, 2012
RULING ON DEFENDANT’S MOTION TO DISMISS
Plaintiff Thomas Dill’s diversity suit against Defendant Ron’s Golf Car Rental, Inc.
claims wrongful termination under Connecticut state law. (Compl. [Doc. # 1] ¶ 2.) On
April 2, 2012, Thomas R. Dill and Nicholas Mello were added as plaintiffs. (Am. Compl.
[Doc. # 20].) The Plaintiffs’ motion for prejudgment remedy [Doc. # 21] was referred for
hearing to Magistrate Judge Margolis (see Order of Ref. [Doc. # 22]), who ruled that
Plaintiffs were collectively entitled to a prejudgment remedy totaling $59,292. (Jan. 24,
2013 Ruling [Doc. # 34] at 22–23.) Defendant now moves [Doc. # 45] pursuant to
Federal Rule of Civil Procedure 12(b)(1) to dismiss Plaintiffs’ claims for lack of subject
matter jurisdiction, arguing that the prejudgment remedy amount demonstrates that
Plaintiffs cannot establish that the amount in controversy exceeds $75,000. For the
reasons stated below, the Court denies Defendant’s motion to dismiss.
Plaintiffs Thomas Dill, Thomas R. Dill, and Nicholas Mello, residents of
Chicopee, Massachusetts, were employed by Defendant Ron’s Golf Car Rental, Inc., a
company incorporated in Connecticut with its principal place of business in Connecticut.
(Am. Compl. ¶¶ 3–6.)
In 2005, Plaintiff Thomas Dill was hired by Defendant as a truck driver. (Id. ¶ 6.)
He developed a close relationship with Ronnie Joppru, the owner of Ron’s Golf Car
Rental, Inc., and as a result, Plaintiff’s son Thomas R. Dill and his nephew Nicholas Mello
were hired the next year. (Id. ¶ 8.) In August 2011, Ronnie Joppru was hospitalized for a
mental condition and his wife and father-in-law Kathleen Joppru and Nick Carlo began
overseeing the daily operations of the company. (Id. ¶¶ 10–11.) Shortly thereafter,
Thomas Dill’s wages were reduced and, though he was unhappy, he continued to work
for Defendant. (Id. ¶ 12.) On August 25, 2011, he noticed that an above-ground gas tank
had been installed at work. (Id. ¶ 15.) To Thomas Dill’s inquiry of Nick Carlo whether
the Defendant had proper permits for the installation of the gas tank (id. ¶ 18), Carlo
replied that he had not requested permits for the tank. (Id. ¶ 20.) Plaintiff Thomas Dill
then telephoned the Vernon Police Department. (Id.) A police officer arrived and spoke
with Kathleen Joppru by telephone. (Id. ¶ 23.) After this conversation, the police officer
informed Thomas Dill that he and the other Plaintiffs were not terminated, but that
Kathleen Joppru had requested they be removed from the property. (Id. ¶¶ 24–25.)
Thomas Dill left the property, called the Environmental Protection Agency, and filed a
complaint against Defendant for the “improper installation of a gas tank next to an
open watercourse.” (Id. ¶ 27.) Later that evening, Kathleen Joppru told Plaintiff Thomas
Dill by telephone that “he and his family were not welcome to return to work,” thereby
terminating their employment. (Id. ¶¶ 28–31.)
Plaintiffs allege that they were wrongfully terminated in violation of Conn. Gen.
Stat. § 31-51q as a result of Thomas Dill’s complaints concerning the installation of the
above-ground gas tank on Defendant’s premises. (Id. ¶¶ 33, 36.) In their Amended
Complaint, Plaintiffs claim they are entitled to damages in excess of $75,000 for back pay,
the value of lost employment benefits, pay for the years Plaintiffs would have worked
absent their wrongful termination, compensation for physical and emotional pain and
suffering, punitive damages, and attorney’s fees and costs. (Id. at 13.)
Defendant moves to dismiss this action for lack of subject matter jurisdiction,
arguing that Plaintiffs have failed to allege damages meeting the requisite jurisdictional
amount in controversy. Further, Defendant argues that even if Plaintiff Thomas Dill’s
“[T]he standards for dismissal under 12(b)(6) and 12(b)(1) are substantively
identical,” Lerner v. Fleet Bank, N.A., 318 F.3d 311, 128 (2d Cir. 2003), except that “the
party asserting jurisdiction bears the burden of proving that the case is properly in federal
court,” United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark
Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). “The court must take all
facts alleged in the complaint as true and draw all reasonable inferences in favor of
plaintiff, but jurisdiction must be shown affirmatively, and that showing is not made by
drawing from the pleadings inferences favorable to the party asserting it.” Morrison v.
Nat’l Australia Bank, Ltd., 547 F.3d 167, 170 (2d. Cir. 2008), aff’d, 130 S. Ct. 2869 (2010)
(internal citations and quotation marks omitted). “In resolving a motion to dismiss for
lack of subject matter jurisdiction under Rule 12(b)(1) a district court may consider
evidence outside the pleadings.” Id.
damages exceed $75,000, the Court cannot exercise supplemental jurisdiction over
Thomas R. Dill’s and Nicholas Mello’s claims because they are not part of the same case
A. Amount in Controversy: Plaintiff Thomas Dill’s Claim
Defendant argues that Magistrate Judge Margolis’s prejudgment damage award
fell short of the $75,000 jurisdictional amount, and that this analysis should “trump
plaintiffs’ self-serving speculation” in the Amended Complaint that the amount in
controversy requirement has been satisfied. (Reply [Doc. # 50] at 2–3.)
District courts have diversity jurisdiction in “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.” 28 U.S.C. § 1332. “A party invoking the
jurisdiction of the federal court has the burden of proving that it appears to a ‘reasonable
probability’ that the claim is in excess of the statutory jurisdictional amount.” Tongkook
Am. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (quoting Moore v. Betit,
511 F.2d 1004, 1006 (2d Cir. 1975)). “This burden is hardly onerous, however, for [the
Second Circuit] recognize[s] a rebuttable presumption that the face of the complaint is a
good faith representation of the actual amount in controversy.”
Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999) (internal
quotation marks omitted). “To overcome the face-of-the-complaint presumption, the
party opposing jurisdiction must show ‘to a legal certainty’ that the amount recoverable
does not meet the jurisdictional threshold.” Scherer v. Equitable Life Assurance Soc’y of
the United States, 347 F.3d 394, 397 (2d Cir. 2003) (quoting St. Paul Mercury Indem. Co.
v. Red Cab Co., 303 U.S. 283, 288–89 (1938)).
“[E]ven where the allegations leave grave
doubt about the likelihood of a recovery of the requisite amount, dismissal is not
warranted.” Brown v. New York State Supreme Court for Second Judicial Dist., 680 F.
Supp. 2d 424, 429 (E.D.N.Y. 2010) (internal quotation marks and citations omitted).
Insufficient amount in controversy may be found if “a specific rule of substantive law or
measure of damages limits the money recoverable . . . [or if] independent facts show that
the amount of damages was claimed by the plaintiff merely to obtain federal court
jurisdiction.” Id. (quoting Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 3d § 3702). Because the Amended Complaint provides only a bare assertion
that the amount in controversy has been met, the Court will look beyond the pleadings to
information otherwise available in the record. See United Food & Commercial Workers
Union, Local 919 v. Centermark Properties Meriden Square, 30 F.3d 298, 305 (2d Cir.
1994) (“Where the pleadings themselves are inconclusive as to the amount in
controversy . . . federal courts may look outside those pleadings to other evidence in the
1. Lost Wages, Lost Benefits, and Future Lost Wages
In support of their motion for prejudgment remedy, Plaintiffs submitted an
affidavit by Plaintiff Thomas Dill, claiming approximately $150,000 in net lost wages and
other damages as of October 5, 2012. (Thomas Dill Aff. [Doc. # 21] at 8, ¶ 20.) In his
testimony before Magistrate Judge Margolis, he claimed past and future lost wages and
future lost wages totalling $190,250. (Jan. 24, 2013 Ruling at 15.) Of the $190,250 total
lost wage claims, Magistrate Judge Margolis found probable cause for attachment only in
the amount of $34,475. (Id. at 22.)
Defendant argues that the Court should rely on the prejudgment remedy
attachment amount awarded to determine the amount in controversy. (Reply at 3.)
However, because Magistrate Judge Margolis’s ruling is based on a probable cause
standard, not a legal certainty standard, and assesses only the extent to which Plaintiffs
have shown in that hearing that they are entitled to prejudgment attachment (see Jan. 24,
2013 Ruling at 17), the prejudgment remedy award should not be dispositive of
jurisdiction under 28 U.S.C. § 1332(a). See Wolde-Meskel, 166 F.3d at 63 (“Legal certainty
is analyzed by what appears on the face of the complaint; subsequent events—such as a
valid defense offered by the defendant . . . —do not show plaintiff’s bad faith or oust the
jurisdiction.” (internal quotation marks and citations omitted)). Although Magistrate
Judge Margolis rejected Plaintiff Thomas Dill’s claimed $1500 weekly salary as not
credible, his lost salary damage claim is central in the dispute between him and his
employer and it does not appear to be claimed solely for the purpose of establishing
jurisdiction. See Brown, 680 F. Supp. 2d at 429 (explaining that courts should only find
the amount in controversy requirement has not been met when independent facts show
the amount was claimed merely to secure jurisdiction). Because the prejudgment remedy
ruling does not conclude to a legal certainty that Plaintiffs cannot prove a higher salary
claim and/or non-economic damages that would meet the jurisdictional threshold, the
prejudgment remedy ruling alone is insufficient to foreclose jurisdiction, although it may
be useful in fleshing out the amount in controversy encompassed by the allegations of the
Amended Complaint. See Hough v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 757 F.
Supp. 283, 285 (S.D.N.Y. 1991) (“In applying the legal certainty test, resort to matters
outside the pleadings may be used to amplify the meaning of the complaint’s
allegations.”). Here, the prejudgment remedy ruling clarifies that Plaintiff Thomas Dill
claims that he suffered damages for lost wages, lost benefits, and future lost wages (Am.
Compl. at 13), of approximately $190,000. (See Jan. 24, 2013 Ruling at 15.) That he did
not secure a prejudgment remedy in that amount points to the quality of evidence offered
at that stage, but not to any legal certainty that a greater damages sum could never be
proved at trial.
Defendant also argues that Plaintiffs cannot include the value of future lost wages
in their calculation of the amount in controversy because such damages are necessarily
too speculative for the purpose of establishing jurisdiction. (Reply at 2.) The Court
disagrees and will consider the claims for immediate future lost wages in determining the
amount in controversy. See Brown v. Austrian Airlines, No. CV-97-3798(CPS), 1997 WL
913334, at *7 (E.D.N.Y. Dec. 9, 1997) (considering potential of plaintiff working three
additional years in finding reasonable probability that amount in controversy exceeded
jurisdictional threshold); see also White v. Loomis Armored US, Inc., 729 F. Supp. 2d 897,
902–03 (E.D. Mich. 2010) (collecting cases from the Third, Fourth, Sixth, Seventh, and
Eighth Circuits showing that consideration of future lost wages is appropriate in
determining amount in controversy). While it is far from clear at this stage whether
Plaintiffs will be able to prove the future earnings they claim, “[w]here the damages
sought are uncertain, the doubt should be resolved in favor of the plaintiff’s pleadings.”
Tongkook Am., 14 F.3d at 785.
2. Emotional Pain and Suffering
In the Amended Complaint, Plaintiffs also seek compensation for non-economic
damages based on their emotional pain and suffering (Am. Compl. at 13), pointing to
testimony by Thomas Dill that he was hurt “tremendously” and had become a “broken
man” after losing his job. (Pls.’ Mem. Opp’n [Doc. # 49] at 5 (internal quotation marks
omitted).) While such descriptions of emotional injury generally will not support a large
damages award without supporting medical evidence, see e.g., Weber v. Fujifilm, No. 3:10CV-401(JBA), 2013 WL 1149932, at *12–15 (collecting cases finding that “garden variety”
emotional damages claims average approximately $50,000); Schnazer v. United
Technologies Corp., 120 F. Supp. 2d 200, 218 (D.Conn.2000) (remitting compensatory
damage jury award of $175,000 to $40,000 and $45,000 where plaintiffs showed “neither
extreme trauma nor permanent injury” and where plaintiffs lacked corroborating medical
testimony of their emotional damages), valuation of such injury is left to the common
sense of the trial jurors. Informed by the prejudgment remedy that Plaintiff’s full lost
wage claim may not prevail, but coupled with a potential non-economic damage award,
Plaintiffs have sufficiently shown the requisite amount in controversy. See Braden v.
Murphy, No. 3:11 CV 884 (SRU), 2012 WL 1069188, at *2-3 (D. Conn. Mar. 29, 2012)
(holding that in light of the Second Circuit’s decision in Scherer, a mere assertion that
plaintiff is entitled to emotional damages may be enough to establish the requisite
amount in controversy). But see Fedor v. Amica Mut. Ins. Co., No. 3:01 CV 795 (GLG),
2003 WL 77002, at *2 (D. Conn. Jan. 8, 2003) (plaintiff not permitted to “fill in the gap”
between actual damages and requisite amount in controversy with “amorphous and
difficult to quantify” emotional distress claim).
3. Attorney’s Fees
The Amended Complaint also requests an award for reasonable attorney’s fees.
(Am. Compl. at 13.) “Attorney’s fees may be used to satisfy the amount in controversy
only if they are recoverable as a matter of right pursuant to statute or contract.” Kimm v.
KCC Trading, Inc., 449 F. App’x. 85, 85–86 (2d Cir. 2012). The Connecticut statute
pursuant to which Plaintiffs bring their claims for wrongful termination states “the
employer  shall be liable. . . for reasonable attorney’s fees as part of the costs of any such
action for damages.” Conn. Gen. Stat. § 31-51q. The Court therefore includes reasonable
attorney’s fees in its calculation of the amount in controversy. Magistrate Judge Margolis
accepted an amount of $6,750 as a reasonable estimate of Plaintiffs’ attorney’s fees (Jan.
24, 2013 Ruling at 20), and this additional amount further confirms that Plaintiffs have
sufficiently shown the requisite amount in controversy. Further, this figure may also be
used as the proxy for the punitive damages which Plaintiffs claim under Connecticut
common law. See Graubart v. Jazz Images, Inc., No. 02-CV-4645 (KMK), 2006 WL
1140724, at *4 (S.D.N.Y. Apr. 27, 2006) (“[T]he Court should include plaintiff’s punitive
damage claims in this calculation to the extent they can be recovered under the applicable
Because Plaintiff Thomas Dill’s claims for lost wages, emotional damages,
attorney’s fees, and punitive damages may exceed $75,000, the requirements of diversity
jurisdiction have been met as to Plaintiff Thomas Dill’s claims.
B. Supplemental Jurisdiction
Plaintiffs argue that the Court should exercise supplemental jurisdiction over
Thomas R. Dill’s and Nicholas Mello’s claims2 because they arise out of “the same
common controversy” (Pls.’ Mem. Opp’n at 6), in that Thomas R. Dill and Nicholas
Mello were “not welcome to return to work” after Thomas Dill had complained about
Defendant’s unlawful installation of the above-ground gas tank. (Am. Compl. ¶¶ 28–31.)
Plaintiffs’ counsel conceded at oral argument that these individual claims did not
satisfy the amount in controversy individually, and that they could not be aggregated to
Defendant argues that, even if Plaintiff Thomas Dill’s claim exceeds the
jurisdictional threshold, the Court should not exercise supplemental jurisdiction over
Thomas R. Dill’s and Nicholas Mello’s claims because each plaintiff had a “different job;
different tenure with the company, different circumstances of lay-off; different
mitigation efforts, and . . . different claim for damages” and as such, each plaintiff’s
claims arise out of a different case or controversy. (Reply at 3.)
In instances in which one diverse plaintiff’s claim meets the amount-incontroversy requirement of 28 U.S.C. § 1332, district courts may exercise supplemental
jurisdiction over intertwined claims arising out of the same case or controversy of other
diverse plaintiffs, even though those claims do not individually exceed $75,000, when they
“derive from a common nucleus of operative facts.” Achtman v. Kirby, McInerney &
Squire, LLP, 464 F.3d 328, 335 (2d Cir. 2006) (internal quotation marks omitted); see also
28 U.S.C. § 1367; Muchnick v. Thomson Corp., 509 F.3d 116, 127 (2d Cir. 2007).
Plaintiff Thomas Dill’s claims in Counts One, Two, and Five are based on
allegations that he was fired in retaliation for his complaints concerning the Defendant’s
installation of an above-ground gas tank. (Am. Compl. at 6 ¶ 33, 7 ¶ 33, 10 ¶ 33.) In
Counts Three, Four, and Six, Plaintiff Thomas R. Dill and Plaintiff Nicholas Mello allege
that they were fired in retaliation for Thomas Dill’s complaints. (Am. Compl. at 8 ¶ 33, 9
¶ 33, 11 ¶ 33.) The core common circumstance alleged by all Plaintiffs is Defendant’s
intention to retaliate for Thomas Dill’s complaints. While each plaintiff will put forth
different facts concerning the damages to which he may be entitled based on his own
salary and benefits, each plaintiff claims a common set of antecedent facts and a
retaliatory purpose resulting in his termination. Based on the allegations in the Amended
Complaint, Plaintiff Thomas R. Dill’s and Plaintiff Nicholas Mello’s claims sufficiently
arise from the same common nucleus of operative facts as Thomas Dill’s such that the
Court may exercise its supplemental jurisdiction over their claims.
For the reasons state above, the Court denies Defendant’s Motion [Doc. # 45] to
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 12th day of July, 2012.
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