Kersey v. Staples, et al

Filing 8

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER. This case is dismissed without prejudice pursuant to Rule 12(h)(3) for lack of subject matter jurisdiction. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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GEORGE KERSEY,
Plaintiff,
v.
STAPLES, et al.,
Defendants.

Civil Action No.
17-11267-NMG

MEMORANDUM AND ORDER
GORTON, J.
For the reasons set forth below, this case is dismissed for
lack of subject matter jurisdiction.
I.

Background
George Kersey (“Kersey”), appearing pro se, filed a class

action complaint alleging that the defendants marketed and sold
defective DVD-R Disks.

See Docket No. 1.

With his complaint,

he filed an Application to Proceed in District Court without
Prepaying Fees or Costs.

See Docket No. 2.

By Memorandum and Order dated December 21, 2017, Kersey was
granted leave to proceed in forma pauperis and was directed to
show cause why his complaint should not be dismissed or, in the
alternative, file an amended complaint that cures the pleading
deficiencies of the original complaint.

See Docket No. 5.

Kersey was advised that (1) complete diversity of citizenship
would not exist if Kersey’s domicile or state of residence is

Massachusetts; (2) the complaint fails to sufficiently allege
that his claims meet the jurisdictional amount for diversity
jurisdiction; and (3) the complaint fails to allege a plausible
claim against any of the defendants.

Id.

Now before the Court are Kersey’s show cause response and
amended complaint.

See Docket Nos. 6, 7.

In his show cause

response, Kersey argues that his complaint is not subject to
dismissal.

See Docket No. 7.

As to the sufficiency of the

pleadings, Kersey argues that his claims are plausible because
(1) he stated that the defendants have sold and marketed
defective DVD-R disks; and (2) he should be entitled to relief
“if [he] can show a jury that Defendants have sold and marketed
such disks.”

Id. at p. 3.

Kersey’s Amended Complaint alleges that he is a citizen of
Rhode Island, and that he receives mail at a Framingham,
Massachusetts address.

See Am. Compl, ¶ 9.

Kersey sues on his

own behalf and on behalf of a proposed class.

Id.

Kersey

believes there is federal jurisdiction under the Class Action
Fairness Act (“CAFA”), id. at ¶ 16, which provides diversity
jurisdiction for class actions when certain criteria are met.1
See 28 U.S.C. § 1332(d).

Kersey states that “because there are

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CAFA gives federal district courts original jurisdiction over class actions
in which (i) the aggregate amount in controversy exceeds $5 million, (ii)
there are at least 100 members in the putative class, and (iii) there is
minimal diversity between the parties. 28 U.S.C. §§ 1332(d)(2), (d)(5)(b).

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more than 100 proposed Class Members, some members of the
proposed class – including Plaintiff – and the Defendants are
citizens of different states, and the amount in controversy
exceeds $1 million.”

Id. at ¶ 16.

Plaintiff alleges in his Amended Complaint that the
“originally manufactured disks of the Defendants, many years
ago, all performed well and many are [in use] today, but the
discs now manufactured and sold by the defendants employ a
change in manufacturing process [use of incorrect dye, pit
structure or laser grove] that has made the discs defective.”
Id. at ¶ 21.

Plaintiff alleges that the defendants could

“easily have tested their discs before offering them for sale to
eliminate those that are defective, but have now failed to do
so.”

Id. at ¶ 22.

Plaintiff alleges that he “had so many

defective disks that his damage from failure to record
information that he wished to save amounted to [at least]
$75,000.”

Id. at ¶ 28.

The Amended Complaint alleges breach of warranty, breach of
implied warranty, unjust enrichment, unfair competition, false
advertising, deceptive trade practices, and violation of the
consumer protection laws.

Id. at ¶ VI (violations alleged).

Kersey seeks (a) actual, incidental and consequential damages,
(b) pre and post judgment interest; (c) equitable relief and
restitution; (d) equivalent attorney’s fees and costs; (e)
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injunction; and (f) all other remedies under the law.

Id. at

Docket No. 6, p. 10 (prayer for relief).
II.

Discussion
It is long-settled that “[t]he party invoking federal

jurisdiction has the burden of establishing that the court has
subject matter jurisdiction over the case.”

Amoche v. Guar.

Trust Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009) (citing
cases); see also CE Design Ltd. V. American Economy Ins. Co.,
755 F. 3d 39, 43 (1st Cir. 2014) (“burden is on the federal
plaintiff to establish that the minimum amount in controversy
has been met.”).

Additionally, there is no obvious reason why

the burden of showing that the jurisdictional amount has been
met should be different for removal under diversity of
citizenship than under CAFA.

See Youtsey v. Avibank Mfg., Inc.,

734 F.Supp.2d 230, 236 (D. Mass. 2010) (“In this court's view,
every reason the First Circuit used in Amoche in arriving at the
‘reasonable probability’ standard in the context of CAFA applies
equally as well” in the context of diversity jurisdiction).
To determine the amount in controversy, the court first
looks to whether the plaintiff made specific damage allegations
in the complaint. See Coventry Sewage Associates v. Dworkin
Realty Co., 71 F.3d 1, 6 (1st Cir. 1995).

The amount in

controversy alleged in a plaintiff’s complaint “is accepted if
made in good faith,” Dart Cherokee Basin Operating Co., LLC v.
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Owens, 135 S. Ct. 547, 553 (2014), and “[i]t must appear to a
legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal.” St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).
“Importantly, ‘when a plaintiff makes a claim under a statute
including a damage multiplier, a court must apply that factor in
evaluating the amount in controversy.’”

Lucas v. Ultima

Framingham LLC, No. 12-12380-MLW, 2013 WL 5405668, at *3 (D.
Mass. Sep.27, 2013) (quoting Evans v. Yum Brands, Inc., 326
F.Supp.2d 214, 222 (D.N.H. 2004)).
In order to meet the jurisdictional amount in controversy
requirement, CAFA allows for the aggregation of class claims,
including class-related attorney's fees. See 28 U.S.C. §
1332(d)(6).

Even so, the allegations in Kersey’s amended

complaint fail to show the requisite jurisdictional threshold
for CAFA.

Additionally, if Kersey wishes to serve as the class

representative, he must receive class certification.
R. Civ. P. 23(a).

See Fed.

Kersey, as a pro se litigant in this action,

is not authorized to serve as the representative of a class.
See D. Mass L.R. 83.5.5(b) (“An individual appearing pro se may
not represent any other party ...”); Kerlinsky v. Sandoz, Inc.,
No. 09-30136-MAP, 2010 WL 4450494, at *2 (D. Mass. Oct. 25,
2010), report and recommendation adopted, 2010 WL 4450450 (D.
Mass. Nov. 4, 2010).
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With respect to diversity jurisdiction for Kersey’s
individual claims, the amended complaint fails to identify a
monetary amount for his individual damages.

Similarly, the

response to the order to show cause does not provide a basis to
conclude that a sufficient amount in controversy exists with
respect to Kersey's individual claims.

A court may dismiss an

action for insufficiency of the amount in controversy if it is
apparent from the face of the pleadings that the plaintiff would
never be entitled to recover an amount in excess of the
jurisdictional amount.

Brady v. Krintzman, No. 12-40064-FDS,

2012 WL 2500593, at *1 (D. Mass. June 27, 2012) (citing St. Paul
Mercury Idemnity Co. v. Red Cab Co., 303 U.S. 283, 288 (1938));
see also Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir.
2001).
Here, Kersey has not shown that the true amount in
controversy exceeds $75,000, notwithstanding his claim for one
million dollars.

Kersey’s bare allegation that his claim meets

the amount in controversy requirement for diversity subject
matter jurisdiction is insufficient.

The court cannot infer

that defendants’ marketing and/or sale of defective DVD-R disks
to Kersey can support a claim over $75,000.
In accordance with the foregoing, the court finds that
Kersey has not pled a claim over which the court has subject
matter jurisdiction.

As such, the case will be dismissed
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pursuant to Rule 12(h)(3) for lack of subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3) ("If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.").
ORDER
In accordance with the foregoing, this case is dismissed
without prejudice pursuant to Rule 12(h)(3) for lack of subject
matter jurisdiction.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: May 2, 2018

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