Davenport v. Whitehill

Filing 6

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: it is hereby Ordered that this action is DISMISSED in its entirety for lack of jurisdiction.(PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CORLEEN M. DAVENPORT,
Plaintiff,
v.

Civil Action No.
11-12071-NMG

JAMES A. WHITEHILL,
Defendant.
MEMORANDUM AND ORDER FOR DISMISSAL
GORTON, D.J.
BACKGROUND
On November 15, 2011, Plaintiff Corleen Davenport (“Davenport”) filed a self-prepared
complaint against Attorney James Whitehill, of Tucson, Arizona, and sought leave to proceed in
forma pauperis. Davenport alleged negligence/legal malpractice, and breach of contract by the
Defendant in connection with a partition of real property in Arizona.
On December 16, 2011, this Court issued a Memorandum and Order (Docket No. 4)
granting Davenport’s Motion for Leave to Proceed in forma pauperis, and directing her to
demonstrate, within 35 days, that this Court has subject matter jurisdiction under 28 U.S.C.
§ 1332 by showing credible evidence that the amount in controversy exceeded $75,000.00.
Davenport was also directed to show good cause why she is not precluded from filing suit
against Attorney Whitehill where this Court (Magistrate Judge Collings) previously found that
the exercise of personal jurisdiction over the Defendant would not comport with due process
requirements.
On January 23, 2012, Davenport filed a two-page Response (Docket No. 5), along with
various exhibits.
DISCUSSION
In the Response, Davenport argues that this Court has personal jurisdiction over the
Defendant under the Massachusetts Long Arm Statute, and cites cases in support. She does not,

however, respond to this Court’s directives to show cause why she is not precluded from
bringing this action because Magistrate Judge Collings previously determined, based on the
same set of facts presented in this action, that the exercise of personal jurisdiction over the
Defendant would not comport with due process requirements.1
Even if this Court were to find that the issue of personal jurisdiction is a matter requiring
further briefing of the parties and is not a basis for sua sponte dismissal, this action still cannot
proceed because Davenport has failed to demonstrate that her damages exceeded $75,000.00 for
purposes of establishing diversity jurisdiction.
Specifically, in Affidavits attached to her Response, Davenport asserts that the monetary
compensation she seeks based on various counts of malpractice, negligence, and breach of
contract is $26,187.38. See Affidavits (Docket No. 5-1; 5-3; 5-4; 5-5).2 Additionally, in a
separate Affidavit, Davenport alleges that the median home value for the real property at issue
was $190,451.00, and therefore her half interest amounted to $95,250.50. Since she received
$50,000.00 from the sale of the property, her damages are decreased by that amount, leaving
Davenport with a total actual loss of $45,250.50, plus the $500.00 she paid in out of pocket
expenses related to the Arizona court fees. See Affidavit (Docket No. 5-2). It is unclear how
Davenport has suffered the additional $26,187.38 in damages that she claims, but even if this
Court were to include that amount in addition to the $45,250.00 and the $500.00 in expenses, the
total amount still does not exceed $75,000.00. This Court cannot find that Davenport’s amount
in controversy would be $26,187.38 for each separate count of negligence, malpractice, or
1

While the defense of lack of personal jurisdiction may be waived by a party (and thus
generally is not a basis for this Court to dismiss sua sponte), the matter for consideration in this case
is whether Davenport nevertheless is precluded from asserting her claims because a prior
determination has been made that this Court may not, constitutionally, exercise jurisdiction over
Defendant. This question also raises the issue whether Davenport’s re-assertion of her claims
against the Defendant is made in good faith.
2

It appears that Davenport seeks duplicative damages for each cause of action.
2

breach of contract, and thus cannot find that this amount should be tripled or quadrupled, as that
would amount to the imposition of punitive damages, which are not recoverable.
Without belaboring the matter, this Court finds that Davenport’s actual loss (i.e., the
amount in controversy) is less than the jurisdictional amount required. Accordingly, this action
will be DISMISSED for lack of jurisdiction.
CONCLUSION
Based on the foregoing, it is hereby Ordered that this action is DISMISSED in its entirety
for lack of jurisdiction.
SO ORDERED.

/s/ Nathaniel M. Gorton
NATHANIEL M. GORTON
UNITED STATES DISTRICT JUDGE
DATED: February 2, 2012

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