Seeno v. Puckett

Filing 45

MEMORANDUM AND ORDER granting 20 Motion for Reconsideration. IT IS FURTHER ORDERED that defendant's 10 Motion to Dismiss is granted. A separate judgment will be entered in conjunction with this memorandum and order. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ALBERT D. SEENO, JR.,
Plaintiff,

7:14CV5003

vs.
MEMORANDUM AND ORDER
TAD J. PUCKETT,
Defendant.

This matter is before the court on defendant’s motion to reconsider, Filing No. 20.
Defendant is requesting this court to reconsider its order, Filing No. 18, that denied the
defendant’s motion to dismiss - as moot. The defendant filed a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(4), Filing No.10. The defendant later
withdrew the motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(4), after conceding that
the defendant is the proper party to the suit. However, defendant now contends he did
not mean to withdraw his motion pursuant to § 12(b)(1) and only intended to withdraw
the motion pursuant to § 12(b)(4). He argues that the amount in controversy is not met
in this case. The Court will grant the defendant’s motion to reconsider and will decide
the issue raised by defendant’s § 12(b)(1) portion of the motion to dismiss.
BACKGROUND
Plaintiff is a resident of California, Filing No. 4. The defendant Tad J. Puckett
d/b/a White Elk Ranch, is a resident of Nebraska. Defendant operates White Elk Ranch
providing professional hunting services specializing in exotic animals. Id. On or about
October 4, 2012 the plaintiff sought information from the defendant regarding bighorn
sheep available for hunt. Id. The defendant provided the plaintiff with information

regarding the rams via email, including photos of the rams, price of the rams and a
proposed hunt time for the animals. Id. A ‘summary of hunt details’ was drafted, which
listed the price as $20,000.00 per ram totaling $60,000.00. Id.
On or about November 1, 2012, the plaintiff sent the summary of hunt details
together with a check for $10,000.00 as a deposit for the rams. Id. On or about
December 4, 2013, the defendant requested an additional payment of $10,000.00 from
the plaintiff. Id. The plaintiff did not make the payment. Id. The plaintiff requested
additional pictures of the rams from the defendant before he would send the additional
$10,000.00. Id. Defendant requested additional photographs of the rams on December
11, 2013 and February 3, 2014 that were not provided. Id. On March 25, 2014, the
defendant returned the deposit of $10,000.00 and advised the plaintiff that the animals
were no longer available for hunt. Id.
STANDARD OF REVIEW
“Because jurisdiction is a threshold issue for the court, the district court has
‘broader power to decide its own right to hear the case than it has when the merits of
the case are reached.’” Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993).
(quoting Osborn v. U.S., 918 F.2d 724, 729 (8th Cir. 1990)). “[A] district court ‘has
authority to consider matters outside the pleadings when subject matter jurisdiction is
challenged under Rule 12(b)(1).’” Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 637, n.4
(8th Cir. 2003) (quoting Osborn v. U.S., 918 F.2d 724, 728 n. 4 (8th Cir. 1990)).
For the court to dismiss for lack of subject matter jurisdiction under Fed. R. C.
Proc. 12(b)(1), “the complaint must be successfully challenged on its face or on the
factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993).
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“In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction
are presumed to be true and the motion is successful if the plaintiff fails to allege an
element necessary for subject matter jurisdiction.” Id.

In a factual attack on the

jurisdictional allegations of the complaint, however, the court can consider “competent
evidence such as affidavits, deposition testimony, and the like in order to determine the
factual dispute.” Id. Because the parties have submitted evidence in support of their
respective positions, this case presents a factual jurisdictional challenge. In such a
challenge, this court is “free to weigh the evidence and satisfy itself as to the existence
of its power to hear the case.” Osborn, 918 F.2d at 730. “[No] presumptive truthfulness
attaches to the plaintiff's allegations, and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id.
The plaintiff has the burden of proving that jurisdiction does in fact exist. Id.
The district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and
costs.

28 U.S.C. § 1332. As federal courts are courts of limited jurisdiction, the

threshold requirement in every federal case is jurisdiction. Bradley v. Am. Postal
Workers Union, 962 F.2d 800, 802 n. 3 (8th Cir.1992). Generally, the party asserting
federal jurisdiction has the burden of establishing federal jurisdiction; including the
requisite federal jurisdictional amount-in-controversy. See Trimble v. Asarco, Inc., 232
F.3d 946, 959 (8th Cir.2000) (reversed on other grounds) (“[T]he party invoking federal
jurisdiction must prove the requisite amount by a preponderance of the evidence.”).
“[The] complaint will be dismissed if it appears to a legal certainty that the value of the
claim is actually less than the required amount.” Id. The fact-finder must legally
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conclude, from the pleadings and proof adduced to the court before trial, that the
amount of damages exceeds $75,000.00. Kopp v. Kopp, 280 F.3d 883, 885 (8th
Cir.2002). An amount that a plaintiff claims is not “in controversy” if no fact-finder could
legally award it. Villas v. Peak Interests, 2006 WL 3253472 *2 (D. Neb. 2006).
DISCUSSION
In determining whether this court has the power to hear this case, the court has
reviewed the “summary of hunt details” attached as Exhibit 3 to the amended complaint,
Filing No. 4-1 at p.15 Attachment 1, Exhibit 3. The “summary of hunt details” lists three
(3) rams to be hunted, each worth $20,000.00. In sum, the contractual amount of the
rams equates to $60,000.00. The requested judgment of the amended complaint, Filing
No. 4, is specific performance to enforce the original contract between the parties. As
such, the plaintiff is only demanding performance of a contract with an uncontroverted
value of $60,000.00. The Court notes for the record that plaintiff alleged there existed
the same “type” of rams which are valued at $30,000.00 as of April 25, 2014 that were
available for kill. See Filing No. 4, Amended Complaint, at 3-4. Plaintiff argues that in
essence he could meet the $75,000.00 jurisdictional requirement by using the numbers
associated with these different rams. However, the Court agrees with the defendant
that this attachment is not relevant. First, this document is dated nearly two years after
the contract was entered into, and second, these are not the same rams in any event.
The contract itself clearly contemplates three rams for a total of $60,000.00.
When the amount in controversy is challenged, the party invoking federal
jurisdiction must prove by a preponderance of evidence that they are entitled to recover
the amount required by §1332 or face dismissal. Drobnak v. Andersen Corp., 561 F.3d
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778, 786 (8th Cir. 2009). Once jurisdiction is challenged if the court is satisfied to a
legal certainty that the plaintiff was never entitled to recover the amount required to
establish diversity jurisdiction, in this case $75,000.00, the suit must be dismissed. State
of Mo. ex rel. Pemiscot Cnty., Mo. v. W. Sur. Co., 51 F.3d 170, 173 (8th Cir. 1995).
The Court finds this matter must be dismissed because specific performance of a
$60,000.00 contract does not satisfy the necessary amount in controversy.
THEREFORE, IT IS ORDERED THAT defendant’s motion to reconsider, Filing
No. 20, is granted.

IT IS FURTHER ORDERED THAT defendant’s motion to dismiss,

Filing No. 10, is granted.

A separate judgment will be entered in conjunction with this

memorandum and order.
Dated this 23rd day of February, 2015.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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