Ballard v. Jackson et al

Filing 31

SUMMARY ORDER - That Jackson's 11 motion to dismiss is DENIED. That the parties notify Magistrate Judge Therese Wiley Dancks to schedule further proceedings in this matter. Signed by Chief Judge Gary L. Sharpe on 8/24/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ADRIAN BALLARD,
Plaintiff,

5:14-cv-1340
(GLS/TWD)

v.
EDWARD JACKSON et al.,
Defendants.
________________________________
SUMMARY ORDER
Plaintiff Adrian Ballard commenced this diversity action against
defendant pro se Edward Jackson and defendant US Bank Home
Mortgage (hereinafter “U.S. Bank”), alleging breach of contract, breach of
the covenant of good faith and fair dealing, fraud/intentional
misrepresentation, constructive fraud/negligent misrepresentation, and
violations of § 349 of New York’s Consumer Protection from Deceptive
Acts and Practices law, in connection with a residential mortgage
agreement, Ballard’s efforts to secure a loan modification, and U.S. Bank’s
ultimate foreclosure action. (Compl., Dkt. No. 1.) Pending is Jackson’s
motion to dismiss the complaint for lack of subject matter jurisdiction
pursuant Fed. R. Civ. P. 12(b)(1). (Dkt. No. 11.) For the reasons that

follow, Jackson’s motion is denied.
In deciding a motion to dismiss pursuant to Rule 12(b)(1), the court
accepts the factual allegations in the complaint as true and draws all
reasonable inferences in the plaintiff’s favor. See Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). As
relevant here, diversity jurisdiction exists “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)(1). “[I]t is
well established that [t]he party seeking to invoke jurisdiction under 28
U.S.C. § 1332 bears the burden of demonstrating that the grounds for
diversity exist and that diversity is complete.” Herrick Co., Inc. v. SCS
Commnc’ns, Inc., 251 F.3d 315, 322-23 (2d Cir. 2001) (internal quotation
marks and citations omitted). Diversity is complete when the complaint
“demonstrate[s] that [the plaintiff] does not share citizenship with any of the
defendants.” Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 157,
160 (2d Cir. 1998) (citation omitted).
Here, the complaint alleges that “the parties are completely diverse in
citizenship,” as Ballard is a resident of New York, U.S. Bank is
headquartered in Minnesota, and Jackson is a resident of Washington,
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D.C. (Compl. ¶¶ 1-3, 5.) Additionally, the complaint alleges that “the
amount in controversy exceeds $100,000.00.” (Id. ¶ 5.)
Nevertheless, Jackson contends that the court lacks subject matter
jurisdiction, arguing that, because he and Ballard entered into a domestic
partnership in Washington, D.C., and “[t]he property in question was
purchased during the domestic partnership,” this case should have been
brought in “the District of Columbia Superior Court.” (Dkt. No. 11 at 2-3.)
Jackson further argues that Ballard has not satisfied the amount in
controversy requirement, essentially claiming that, to the extent that Ballard
suffers damages in excess of $75,000, it will be his own fault for
“maliciously ignor[ing Jackson]’s good faith efforts to reach an agreement .
. . to settle.” (Id. at 4-6.)
Jackson’s first argument misses the mark. That the District of
Columbia Superior Court may have jurisdiction over this dispute, or even
that it may be a more appropriate forum to resolve this dispute, is of no
moment. As long as the two requirements of 28 U.S.C. § 1332(a)(1) are
satisfied—complete diversity of citizenship and an amount in controversy
that exceeds $75,000—this court has jurisdiction. There is no dispute that
the parties here are diverse, and, as discussed below, the amount in
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controversy requirement has been met.
Turning to Jackson’s second argument, the amount in controversy is
measured “as of the date of the complaint.” Scherer v. Equitable Life
Assurance Soc’y of U.S., 347 F.3d 394, 397 (2d Cir. 2003). Moreover, “[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.” Id. (internal quotation marks and citations
omitted). As the Second Circuit has noted, “[t]his burden is hardly
onerous,” because courts “recognize a rebuttable presumption that the
face of the complaint is a good faith representation of the actual amount in
controversy.” Id. (internal quotation marks and citations omitted). To
overcome this presumption, “the party opposing jurisdiction must show to a
legal certainty that the amount recoverable does not meet the jurisdictional
threshold,” which has been described as “a high bar.” Id. (internal
quotation marks and citations omitted). Generally,
the amount in controversy falls below the threshold
only in three situations: 1) when the terms of a
contract limit the plaintiff’s possible recovery; 2) when
a specific rule of substantive law or measure of
damages limits the money recoverable by the plaintiff;
and 3) when independent facts show that the amount
of damages was claimed by the plaintiff merely to
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obtain federal court jurisdiction.
Brown v. N.Y. State Supreme Court for the Second Judicial Dist., 680 F.
Supp. 2d 424, 429 (E.D.N.Y. 2010) (internal quotation marks and citation
omitted).
As noted above, the complaint clearly states that the amount in
controversy “exceeds $100,000.00.” (Compl. ¶ 5.) Thus, the court
presumes that this is a good faith representation of the amount in
controversy. See Scherer, 347 F.3d at 397. Moreover, in his opposition to
Jackson’s motion, Ballard submitted an affidavit, in which he states that,
“[t]he past due amount owed [on the mortgage, for which Jackson and
Ballard are jointly and severally liable], is at least $219,923.49,” and further
notes that he is “liable for over $600,238.12” as the result of a foreclosure
action. (Dkt. No. 19 at 2); see Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000) (“In resolving a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to
evidence outside the pleadings.” (citation omitted)). Jackson, arguing only
that Ballard has not met the amount in controversy solely because any
damages would be self-inflicted due to his refusal to settle, (Dkt. No. 11 at
5-6), has failed to overcome the presumption. Indeed, he has failed to cite

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any contract limiting Ballard’s possible recovery, a specific rule of
substantive law or measure of damages restricting Ballard’s damages, or
any independent facts suggesting that the amount in controversy stated in
the complaint was invented solely to obtain federal jurisdiction. See
Brown, 680 F. Supp. 2d at 429. Jackson’s motion, therefore, is denied.
Accordingly, it is hereby
ORDERED that Jackson’s motion to dismiss (Dkt. No. 11) is
DENIED; and it is further
ORDERED that the parties notify Magistrate Judge Thérèse Wiley
Dancks to schedule further proceedings in this matter; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
August 24, 2015
Albany, New York

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