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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