Suarez v. Mosaic Sales Solutions US Operating Co., LLC

Filing 28

MEMORANDUM OPINION AND ORDER.....The April 10, 2017 application to dismiss this action for lack of subject matter jurisdiction is granted. The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 7/7/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DANIEL SUAREZ,
:
Plaintiff,
:
:
-v:
:
MOSAIC SALES SOLUTIONS US OPERATING
:
CO., LLC,
:
Defendant.
:
:
----------------------------------------X

17cv00477
MEMORANDUM OPINION
& ORDER

APPEARANCES
For Daniel Suarez:
David Abrams
305 Broadway, Suite 601
New York, NY 10007
For Mosaic Sales Solutions US Operating Co., LLC:
Michael R. Phillips
McGuireWoods LLP
77 West Wacker Drive, Suite 4100
Chicago, Illinois 60601-1818
For Mosaic Sales Solutions US Operating Co., LLC:
Philip A. Goldstein
McGuireWoods LLP
1345 Avenue of the Americas, 7th Floor
New York, New York 10105-0106
DENISE COTE, District Judge:
Plaintiff Daniel Suarez (“Suarez”) brings this lawsuit
alleging that the defendant Mosaic Sales Solutions US Operating
Co., LLC (“Mosaic”) unlawfully rescinded a job offer it made to
Suarez based on Suarez’s criminal record.

Suarez asserts that

Mosaic did not follow the procedures of the New York City Fair
Chance Act (“NYCFCA”).

Mosaic moves to dismiss the amended

complaint (“FAC”) pursuant to Fed. R. Civ. P. Rule 12(b)(1) on
the basis that there is no jurisdiction over this action since
Suarez has failed to plead a claim for damages in excess of
$75,000.

For the following reasons, the motion is granted.
BACKGROUND

In the FAC, Suarez asserts that in October 2016 Mosaic
offered him a permanent position promoting electronics at a
department store in New York City.
based on Mosaic’s job offer.

Suarez quit his prior job

Mosaic ran a criminal background

check on Suarez and discovered that he had two misdemeanor
convictions.

In November 2016, Mosaic informed Suarez that the

job offer was rescinded.

Suarez ultimately found another job.

He seeks damages “in an amount not more than $100,000,”
including lost wages, compensatory damages, punitive damages,
and attorneys’ fees and costs.
DISCUSSION
“[A] claim is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks
the statutory or constitutional power to adjudicate it.”
Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.
2008) (citation omitted).

In reviewing a motion to dismiss

under Rule 12(b)(1), a court “must accept as true all material
factual allegations in the complaint, but [is] not to draw
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inferences from the complaint favorable to plaintiffs.”

J.S. ex

rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.
2004).

Courts may consider evidence outside of the pleadings –-

such as affidavits –- to resolve jurisdictional issues, but may
not rely on “conclusory or hearsay” statements contained in the
affidavits.

Id.

Plaintiffs asserting subject matter jurisdiction must prove
its existence by a preponderance of the evidence.
F.3d at 170.

Morrison, 547

“Diversity jurisdiction exists over civil actions

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.”

Hallingby v. Hallingby, 574 F.3d

51, 56 (2d Cir. 2009) (citation omitted); see 28 U.S.C. §
1332(a).1

The party invoking a federal court’s jurisdiction must

show a “reasonable probability” that the threshold amount in
controversy is satisfied, and courts recognize “a rebuttable
presumption that the face of the complaint is a good faith
representation of the actual amount in controversy.”

Pyskaty v.

Wide World of Cars, LLC, 856 F.3d 216, 223 (2d Cir. 2017)
(citation omitted).

A defendant may rebut that presumption by

demonstrating “to a legal certainty that the plaintiff could not

Diversity of citizenship is not contested in this case. The
parties’ June 21 and 23 letters indicate Suarez is a citizen of
New Jersey and Mosaic is a citizen of Delaware and Florida.
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recover the amount alleged or that the damages alleged were
feigned to satisfy jurisdictional minimums.”
omitted).

Id. (citation

Punitive damages may be included for the purposes of

satisfying the jurisdictional minimum if they are permitted
under the controlling law.

A.F.A. Tours, Inc. v. Whitchurch,

937 F.2d 82, 87 (2d Cir. 1991).

Courts consider the ratio of

punitive damages to the actual harm inflicted when assessing
punitive damages awards, and “in practice, few awards exceeding
a single-digit ratio between punitive and compensatory damages,
to a significant degree, will satisfy due process.”

Stampf v.

Long Island R. Co., 761 F.3d 192, 210 (2d Cir. 2014) (citation
omitted).

Attorneys’ fees may not be included in calculating

the jurisdictional amount “unless they are recoverable as a
matter of right.”

Givens v. W. T. Grant Co., 457 F.2d 612, 614

(2d Cir. 1972), vacated on other grounds, 409 U.S. 56 (1972).
Suarez alleges a violation of the NYCFCA, which makes it
illegal for employers to deny employment on the basis of a prior
criminal conviction without following designated processes.
N.Y. City Admin. Code § 8-107.

If a violation occurs,

individuals may recover damages, including punitive damages and
“reasonable attorney’s fees, expert fees and other costs.”

Id.

§ 8-502.
The FAC does not allege an amount in controversy exceeding
$75,000.

It simply seeks damages “in an amount not more than
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$100,000.”

Even if the FAC is construed as alleging an amount

in controversy in excess of $75,000, Mosaic has rebutted the
presumption that this is a good faith representation of the
actual amount in controversy.
Although the FAC alleges that Suarez was advised that he
was being hired for a permanent position, through this motion
Mosaic has offered evidence (1) that Suarez was hired for a
seasonal, part-time position scheduled to last approximately ten
weeks, resulting in total pay of approximately $2400;2 and (2)
that Mosaic offered Suarez six permanent (i.e. non-seasonal)
jobs after it discovered it had rescinded its prior job offer in
error.

Suarez does not dispute these contentions in his

opposition to this motion.

Moreover, as noted above, the FAC

indicates that Suarez ultimately found other employment after
Mosaic rescinded the original job offer.

Given these facts, an

award for back pay, any punitive damages, and any attorneys’
fees would be a fraction of the jurisdictional minimum.
Suarez opposes dismissal with a single argument.

He

contends that an award of compensatory damages can be reasonably
expected to fill the gap to satisfy the jurisdictional minimum.
The FAC alleges that Suarez “was extremely hurt, humiliated, and

Mosaic has also submitted evidence that the position was
eliminated. According to Mosaic, had Suarez been hired, the
position would have been eliminated “within no more than 4
weeks” -- resulting in a maximum of $960 in pay.
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frustrated by [Mosaic’s] treatment.

He gained weight from the

stress and also suffered from a great deal of stress from being
caught short and unable to pay his bills even though he
ultimately found another job.”

Mosaic’s evidence and the

allegations in the FAC, taken together, rebut the presumption
that an award of compensatory damages could be large enough in
this case to supply the remaining amount necessary to reach the
jurisdictional minimum.

It is now undisputed that the job

Suarez lost would have lasted less than three months, would have
paid a maximum of $2,400, that Suarez turned down other
employment offers from Mosaic, and that Suarez found employment
with another employer.
Suarez requests leave to submit further affirmations and/or
take discovery concerning the amount in controversy.
request is denied.

Suarez’s

Suarez had the opportunity to supply

additional affirmations and other evidence in opposing Mosaic’s
application and failed to do so.

Moreover, he has not

identified what additional information he seeks to gather and
present.

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CONCLUSION
The April 10, 2017 application to dismiss this action for
lack of subject matter jurisdiction is granted.

The Clerk of

Court shall close the case.
Dated:

New York, New York
July 7, 2017
__________________________________
DENISE COTE
United States District Judge

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