Laccinole v. Whitepages, Inc.
Filing
20
MEMORANDUM AND ORDER granting 7 Motion to Amend Complaint; denying 8 Motion to Remand to State Court, and providing Plaintiff 14 days to respond to 13 Motion to Dismiss. So Ordered by Chief Judge William E. Smith on 3/8/2017. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
CHRISTOPHER LACCINOLE,
)
)
Plaintiff,
)
)
v.
)
)
WHITEPAGES, INC.,
)
)
Defendant.
)
___________________________________)
C.A. No. 16-586 S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Plaintiff’s Motion for Leave to Amend
the Complaint (ECF No. 7), Plaintiff’s Motion to Remand (ECF No.
8), and Defendant’s Motion to Dismiss (ECF No. 13). For the
reasons set forth below, Plaintiff’s Motion for Leave to Amend
the Complaint (ECF No. 7) is GRANTED and Plaintiff’s Motion to
Remand (ECF No. 8) is DENIED. Plaintiff is provided fourteen
(14) days from the date of this Order to respond to Defendant’s
Motion to Dismiss (ECF No. 13).
I. Background
The
factual
allegations
in
this
case
are
uncomplicated.
According to the Complaint, Christopher Laccinole (“Plaintiff”)
is a Rhode Island citizen who requested a credit report from
Whitepages,
Inc.
(“Defendant”),
a
Delaware
corporation.
Plaintiff alleges that Defendant initially refused to provide a
report
and
then
provided
a
report
that
included
false
information about Plaintiff. (Compl. ¶¶ 28-31, ECF No. 1-1.) In
response, Plaintiff filed suit against Defendant in Rhode Island
Superior Court alleging violations of Rhode Island’s Deceptive
Trade
Practices
Act,
R.I.
Gen.
Laws
§
6-13.1,
and
Consumer
Empowerment and Identity Theft Prevention Act, R.I. Gen. Laws §
6-48.
The
relief
sought
included
actual
damages,
statutory
damages, punitive damages, costs and attorney fees, as well as
declaratory and injunctive relief. (Compl. ¶¶ 40, 46, ECF No. 11.)
Defendant removed this action to federal court pursuant to
28
U.S.C.
§
1332
(diversity
jurisdiction).
According
to
Defendant, there is complete diversity because Plaintiff is a
Rhode Island citizen and Defendant is a Delaware corporation
with its principal place of business in Seattle, Washington.
(Notice of Removal ¶¶ 4-8, ECF No. 1.) Additionally, Defendant
proffers
that
the
amount
in
controversy
can
reasonably
be
expected to exceed $75,000, in large part because Plaintiff asks
the Court to permanently enjoin Defendant from conducting any
business in Rhode Island. (Id. ¶¶ 9-19.)
Plaintiff now seeks to amend the Complaint and remand this
action to state court. Plaintiff’s Amended Complaint removes any
request for injunctive relief (see Amended Complaint ¶¶ 41, 47,
ECF No. 7-1) and states that “[t]he total amount in controversy
(inclusive of all costs, fees, damages and relief) will in no
2
circumstances exceed $50,000.00” (Id. ¶ 35). With the amount in
controversy
now
alleged
to
be
less
than
$75,000,
Plaintiff
argues that the Court no longer has diversity jurisdiction based
on the amount in controversy requirement of 28 U.S.C. § 1332(a).
(See Mot. to Remand 2-3, ECF No. 8.) Plaintiff also argues that
Defendant “is not a diverse party, but rather a Rhode Island
entity.” (Id. at 3.)
II. Amount in Controversy
Defendant, as the party seeking removal, has the burden of
establishing diversity jurisdiction by a preponderance of the
evidence. Hogan v. Wal-Mart Stores E., L.P., No. CA 13-603 S,
2014
WL
66658,
diversity
at
*3
jurisdiction
(D.R.I.
only
Jan.
if
8,
“the
2014).
matter
The
in
Court
has
controversy
exceeds the sum or value of $75,000, exclusive of interest and
costs . . . .” 28 U.S.C. § 1332(a). In determining the amount in
controversy,
the
Court
looks
to
the
relief
requested
by
Plaintiff in the original Complaint, not in Plaintiff’s proposed
Amended
Complaint.
This
is
because
the
existence
of
federal
jurisdiction is determined at the outset of the litigation and
“once jurisdiction attaches, it is not ousted by a subsequent
change of events.” Coventry Sewage Assocs. v. Dworkin Realty
Co., 71 F.3d 1, 7 (1st Cir. 1995); see also In re Carter, 618
F.2d 1093, 1101 (5th Cir. 1980) (“It is a fundamental principle
of law that whether subject matter jurisdiction exists is a
question answered by looking to the complaint as it existed at
3
the time the petition for removal was filed. . . . Indeed, it
has often been stated that the plaintiff cannot rob the district
court of subject matter jurisdiction by electing to amend away
the grounds for federal jurisdiction.”), cert. denied, 450 S.
Ct. 949 (1981).
The
original
Complaint
does
not
provide
for
a
specific
damages claim. Therefore, because “the jurisdictional amount is
not facially apparent from the complaint, the court may look to
the notice of removal and any other materials submitted by the
parties.” Hogan, 2014 WL 66658, at *3. As a starting point, both
sides seemingly agree that, putting aside the cost of injunctive
relief, the potential damages in this case likely add up to less
than
$75,000.
estimate
total
of
While
Defendant
potential
amount
in
does
damages,
controversy
not
provide
Plaintiff
(inclusive
states
of
all
a
specific
that
“[t]he
costs,
fees,
damages and relief) will in no circumstances exceed $50,000.00.”
(Amended Complaint ¶ 35.).
The Court is therefore left with the task of estimating the
potential cost to Defendant of the injunctive relief requested
by Plaintiff. See Richard C. Young & Co. v. Leventhal, 389 F.3d
1, 3 (1st Cir. 2004) (“Courts have repeatedly held that the
value
of
the
matter
in
controversy
is
measured
not
by
the
monetary judgment which the plaintiff may recover but by the
judgment’s
pecuniary
litigation.”).
The
consequences
Complaint
to
requests
4
those
involved
injunctive
in
the
relief
“to
permanently restrain and enjoin Defendant from conducting any
business in the State of Rhode Island.” (Compl. ¶¶ 40, 46, ECF
No. 1-1.) If granted, the evidence before the Court suggests
that such broad injunctive relief would cost Defendant more than
$75,000.
As
information
Plaintiff
about
himself
hundreds
of
noted,
thousands
Defendant
“sells
of
Island
Rhode
citizens” and is “profiting from the information of
so many
Rhode Islanders.” (Mot. to Remand 3, ECF No. 8.) Additionally,
Defendant has provided evidence that the requested injunctive
relief would cost Defendant a minimum of $10,000 per month. (See
Schmitt Decl. ¶ 5, ECF No. 12.) The Court therefore finds that
Defendant has met its burden of establishing, by a preponderance
of the evidence, that the amount in controversy is in excess of
$75,000.
III. Complete Diversity of the Parties
Diversity jurisdiction attaches only where the parties are
citizens
of
different
states.
See
28
U.S.C.
§
1332(a)(1).
Plaintiff is a citizen of Rhode Island and argues that Defendant
“is not a diverse party, but rather a Rhode Island entity.”
(Mot. for Remand 3, ECF No. 8.) However, Plaintiff provides no
evidence to support this claim. The rule governing corporate
citizenship is clear: “a corporation shall be deemed to be a
citizen of every State and foreign state by which it has been
incorporated and of the State or foreign state where it has its
principal place of business.” 28 U.S.C. § 1332(c)(1). Plaintiff
5
concedes that Defendant is incorporated in Delaware, not Rhode
Island. (Compl. ¶ 10, ECF No. 1-1.) Furthermore, Defendant has
provided evidence that it operates principally out of its office
in Seattle, Washington. (See Schmitt Decl. ¶ 4, ECF No. 12.)
Absent evidence to the contrary, the Court finds that there is
complete diversity among the parties.
IV. The Proposed Amended Complaint
Plaintiff moves to amend his Complaint. (Mot. for Leave to
Amend Compl., ECF No. 7.) Plaintiff is permitted to amend his
Complaint
motion
“once
is
as
filed
a
matter
before
of
course”
Defendant
filed
where,
as
either
a
here,
the
responsive
pleading or motion under Rule 12 of the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 15(a)(1); see also Taite v. Peake,
No. CIV 08-CV-258-SM, 2009 WL 94526, at *1 (D.N.H. Jan. 9, 2009)
(“The district court has no discretion to
reject an amended
pleading filed before a responsive pleading is served, even if
the court considers the amendment futile.”) (quoting 3 Moore’s
Fed. Practice, § 15.11 (3rd ed. 2008)). Plaintiff’s Motion for
Leave to Amend the Complaint is therefore GRANTED.
V. Motion to Dismiss
Defendant filed a Motion to Dismiss. (ECF No. 13.) That
motion was filed in relation to Plaintiff’s original Complaint.
Now that the Plaintiff has filed an Amended Complaint, the Court
will
construe
Amended
Defendant’s
Complaint.
Motion
Plaintiff
to
has
6
Dismiss
failed
as
to
against
the
respond
to
Defendant’s Motion to Dismiss. In light of the Court’s denial of
Plaintiff’s Motion to Remand, the Court will provide Plaintiff
with an additional fourteen (14) days from the date of this
Order to Respond to Defendant’s Motion to Dismiss.
VI. Conclusion
For the reasons set forth above, Plaintiff’s Motion for
Leave
to
Amend
Plaintiff’s
the
Motion
Complaint
to
(ECF
Remand
(ECF
No.
7)
is
GRANTED
and
No.
8)
is
DENIED.
The
Defendant’s Motion to Dismiss will be construed as a Motion to
Dismiss the Amended Complaint. Plaintiff has fourteen (14) days
from the date of this Order to respond to Defendant’s Motion to
Dismiss.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: March 8, 2017
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