Scott v. Cricket Communications, Inc. et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to amend his complaint Doc. # 6 is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not serve process or cause process to be effectuated in this case because this cause is subject to dismissal for lack of jurisdiction. Fed.R.Civ.P. 12(h)(3). Signed by Honorable Rodney W. Sippel on 9/21/10. (ARL)

S c o t t v. Cricket Communications, Inc. et al

Doc. 7

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF MISSOURI E A S T E R N DIVISION W A L T E R F. SCOTT, ) ) P la in t if f , ) ) v. ) ) C R IC K E T COMMUNICATIONS, INC. ) an d JABBER JAW MOBILE, INC., ) ) D e f e n d a n ts . )

N o . 4:10CV823 RWS

M E M O R A N D U M AND ORDER B efo re the Court is plaintiff's motion to amend his complaint and his resp o n se to the Court's July 16, 2010 Order to Show Cause why his case should not b e dismissed for lack of jurisdiction. The Court will grant plaintiff's motion to am en d his complaint and dismiss the amended complaint for lack of jurisdiction p u r su a n t to Fed.R.Civ.P. 12(h)(3). P ro ced u ra l Background O n May 3, 2010, plaintiff filed the instant case pursuant to 28 U.S.C. § 1332, a g a in s t Cricket Communications, Inc., a citizen of the state of Delaware, and Jabber Jaw Mobile LLC, a citizen of the state of Kansas, alleging fraud and breach of co n tract in connection with his purchase of internet provider services. Specifically, p la in tif f alleged that he brought broadband internet services from Jabber Jaw

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M o b ile (allegedly a body of Cricket Communications, Inc.). Plaintiff asserted that d esp ite assurances that he would be entitled to unlimited "web," he lost service for tw o (2) days in March of 2010 and twelve (12) days in April of 2010. Plaintiff claim ed that defendants refused to pay him for the lost days of service, and he so u g h t actual damages in the amount of $99.14 (the amount he paid for monthly s er v ic es ), as well as $3,000 in unidentified damages, $10,000 in "exemplary d a m a g e s," and punitive damages in excess of $100,000. Plaintiff sought to proceed ag ain st defendants in forma pauperis, accordingly, the Court reviewed his c o m p la in t pursuant to 28 U.S.C. § 1915 for frivolousness, maliciousness, or failure to state a claim. O n July 16, 2010, the Court ordered plaintiff to show cause why his case sh o u ld not be dismissed for lack of jurisdiction, as it was not apparent from the c o m p la in t that the amount in controversy would exceed $75,000. The Court noted th at although punitive damages could be included in the amount in controversy, it d id not appear from the allegations in the complaint that punitive damages would be w arran ted . As such it did not appear from the face of the complaint that the amount in controversy would be sufficient to establish diversity jurisdiction under 28 U .S .C . § 1332.

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On July 27, 2010 plaintiff filed a response to the Court's Show Cause O rd er, as well as his motion for leave to file an amended complaint. The Court will g ran t plaintiff's motion to amend his complaint and review the amended complaint p u rsu an t to 28 U.S.C. § 1915, as well as for jurisdictional purposes. Discussion P lain tiff's amended complaint is essentially the same as his prior complaint. The amended complaint is based on the same facts and circumstances as the o rig in al pleading, and it seeks essentially the same amounts in damages - $99.14 in a ctu a l damages, $100,000 in punitive damages, $3,000 in unexplained "co n seq u en tial damages," and $20,000 for unexplained "mental anguish." The only p e r ce iv e d difference is the addition of phrases alleging that defendants acted "in ten tio n ally" and "with malice," presumably added in order to support a punitive d am ag es award in an effort to meet the amount in controversy. Regardless of the "buzzwords" included in plaintiff's amended complaint, the p lead in g is completely devoid of any factual allegations that would amount to "p ro p er allegations of malice, wantonness or oppression," such that punitive d am ag es could be awarded. See, e.g., Sands v. R.G. McKelvey Bldg. Co., 571 S .W .2 d 726, 733 (Mo. Ct. App. 1978); Smith v. American Bank & Trust Co., 639 S .W .2 d 169, 176 (Mo. Ct. App. 1982). Moreover, given plaintiff's previous
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assertio n s of the benign factual nature surrounding his claims, the inclusion, in the am en d ed complaint, of "[t]hreadbare recitals of the elements of a cause of action [ th a t are] supported by mere conclusory statements," is not entitled to an a ss u m p tio n of truth and cannot form the basis for an award of punitive damages su ch that the amount in controversy could be reached. Ashcroft v. Iqbal, 129 S. Ct. 1 9 3 7 , 1949-51 (2009). In short, plaintiff has completely failed to allege pertinent facts or otherwise p ro p erly plead how a case with actual damages of less than $100 for an alleged loss o f internet services for a few days could result in more than $74,901 in punitive d am ag es such that the amount in controversy could be reached. As noted in the C o u rt's previous Order, a breach of contract claim cannot support a claim for p u n itiv e damages, and although punitive damages may be awarded in a fraud action if actual damages are proved, evidence of fraud must be pleaded with particularity 1, a n d the evidence must support a finding that the defendants' conduct was o u trag eo u s because of evil motive or a reckless indifference to the rights of others. See Dewey v. American Stair Glide Corp., 557 S.W.2d 643, 650 (Mo. Ct. App.

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See Fed.R.Civ.P. 9(b).
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1 9 7 7 ) ; Werremeyer v. K.C. Auto Salvage Co., Inc., 134 S.W.3d 633 (Mo. 2004); M isisch ia v. St.John's Mercy Medical Ctr., 30 S.W.3d 848 (Mo. Ct. App. 2000). The Court finds that the amended complaint does not contain any allegations th a t, if proved, would show that the defendants acted with the necessary mental state to justify punitive damages. As a result, this Court lacks diversity jurisdiction u n d er 28 U.S.C. § 1332, and this case will be dismissed pursuant to Federal Rule of C iv il Procedure 12(h)(3). A c c o r d in g ly , IT IS HEREBY ORDERED that plaintiff's motion to amend his complaint [D o c. #6] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not serve process or c au s e process to be effectuated in this case because this cause is subject to dismissal f o r lack of jurisdiction. Fed.R.Civ.P. 12(h)(3). D ated this 21st day of September, 2010.

R O D N E Y W. SIPPEL U N IT E D STATES DISTRICT JUDGE

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