United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Nathaniel M. Gorton, United States District Judge
reasons set forth below, this case is dismissed for lack of
subject matter jurisdiction.
Kersey (“Kersey”), appearing pro se,
filed a class action complaint alleging that the defendants
marketed and sold defective DVD-R Disks. See Docket
No. 1. With his complaint, he filed an Application to Proceed
in District Court without Prepaying Fees or Costs.
See Docket No. 2.
Memorandum and Order dated December 21, 2017, Kersey was
granted leave to proceed in forma pauperis and was
directed to show cause why his complaint should not be
dismissed or, in the alternative, file an amended complaint
that cures the pleading deficiencies of the original
complaint. See Docket No. 5. Kersey was advised that
(1) complete diversity of citizenship would not exist if
Kersey's domicile or state of residence is Massachusetts;
(2) the complaint fails to sufficiently allege that his
claims meet the jurisdictional amount for diversity
jurisdiction; and (3) the complaint fails to allege a
plausible claim against any of the defendants. Id.
before the Court are Kersey's show cause response and
amended complaint. See Docket Nos. 6, 7. In his show
cause response, Kersey argues that his complaint is not
subject to dismissal. See Docket No. 7. As to the
sufficiency of the pleadings, Kersey argues that his claims
are plausible because (1) he stated that the defendants have
sold and marketed defective DVD-R disks; and (2) he should be
entitled to relief “if [he] can show a jury that
Defendants have sold and marketed such disks.”
Id. at p. 3.
Amended Complaint alleges that he is a citizen of Rhode
Island, and that he receives mail at a Framingham,
Massachusetts address. See Am. Compl, ¶ 9.
Kersey sues on his own behalf and on behalf of a proposed
class. Id. Kersey believes there is federal
jurisdiction under the Class Action Fairness Act
(“CAFA”), id. at ¶ 16, which
provides diversity jurisdiction for class actions when
certain criteria are met.See 28 U.S.C. § 1332(d).
Kersey states that “because there are more than 100
proposed Class Members, some members of the proposed class -
including Plaintiff - and the Defendants are citizens of
different states, and the amount in controversy exceeds $1
million.” Id. at ¶ 16.
alleges in his Amended Complaint that the “originally
manufactured disks of the Defendants, many years ago, all
performed well and many are [in use] today, but the discs now
manufactured and sold by the defendants employ a change in
manufacturing process [use of incorrect dye, pit structure or
laser grove] that has made the discs defective.”
Id. at ¶ 21. Plaintiff alleges that the
defendants could “easily have tested their discs before
offering them for sale to eliminate those that are defective,
but have now failed to do so.” Id. at ¶
22. Plaintiff alleges that he “had so many defective
disks that his damage from failure to record information that
he wished to save amounted to [at least] $75, 000.”
Id. at ¶ 28.
Amended Complaint alleges breach of warranty, breach of
implied warranty, unjust enrichment, unfair competition,
false advertising, deceptive trade practices, and violation
of the consumer protection laws. Id. at ¶ VI
(violations alleged). Kersey seeks (a) actual, incidental and
consequential damages, (b) pre and post judgment interest;
(c) equitable relief and restitution; (d) equivalent
attorney's fees and costs; (e) injunction; and (f) all
other remedies under the law. Id. at Docket No. 6,
p. 10 (prayer for relief).
long-settled that “[t]he party invoking federal
jurisdiction has the burden of establishing that the court
has subject matter jurisdiction over the case.”
Amoche v. Guar. Trust Life Ins. Co., 556 F.3d 41, 48
(1st Cir. 2009) (citing cases); see also CE Design Ltd.
V. American Economy Ins. Co., 755 F.3d 39, 43 (1st Cir.
2014) (“burden is on the federal plaintiff to establish
that the minimum amount in controversy has been met.”).
Additionally, there is no obvious reason why the burden of
showing that the jurisdictional amount has been met should be
different for removal under diversity of citizenship than
under CAFA. See Youtsey v. Avibank Mfg., Inc., 734
F.Supp.2d 230, 236 (D. Mass. 2010) (“In this
court's view, every reason the First Circuit used in
Amoche in arriving at the ‘reasonable
probability' standard in the context of CAFA applies
equally as well” in the context of diversity
determine the amount in controversy, the court first looks to
whether the plaintiff made specific damage allegations in the
complaint. See Coventry Sewage Associates v. Dworkin
Realty Co., 71 F.3d 1, 6 (1st Cir. 1995). The amount in
controversy alleged in a plaintiff's complaint “is
accepted if made in good faith, ” Dart Cherokee
Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 553
(2014), and “[i]t must appear to a legal certainty that
the claim is really for less than the jurisdictional amount
to justify dismissal.” St. Paul Mercury Indem. Co.
v. Red Cab Co., 303 U.S. 283, 289 (1938).
“Importantly, ‘when a plaintiff makes a claim
under a statute including a damage multiplier, a court must
apply that factor in evaluating the amount in
controversy.'” Lucas v. Ultima Framingham
LLC, No. 12-12380-MLW, 2013 WL 5405668, at *3 (D. Mass.
Sep.27, 2013) (quoting Evans v. Yum Brands, Inc.,
326 F.Supp.2d 214, 222 (D.N.H. 2004)).
order to meet the jurisdictional amount in controversy
requirement, CAFA allows for the aggregation of class claims,
including class-related attorney's fees. See 28
U.S.C. § 1332(d)(6). Even so, the allegations in
Kersey's amended complaint fail to show the requisite
jurisdictional threshold for CAFA. Additionally, if Kersey
wishes to serve as the class representative, he must receive
class certification. See Fed.R.Civ.P. 23(a). Kersey,
as a pro se litigant in this action, is not
authorized to serve as the representative of a class.
See D. Mass. L.R. 83.5.5(b) (“An individual
appearing pro se may not represent any other party
...”); Kerlinsky v. Sandoz, Inc., No.
09-30136-MAP, 2010 WL 4450494, at *2 (D. Mass. Oct. 25,
2010), report and recommendation adopted, 2010 WL 4450450 (D.
Mass. Nov. 4, 2010).
respect to diversity jurisdiction for Kersey's individual
claims, the amended complaint fails to identify a monetary
amount for his individual damages. Similarly, the response to
the order to show cause does not provide a basis to conclude
that a sufficient amount in controversy exists with respect
to Kersey's individual claims. A court may dismiss an
action for insufficiency of the amount in controversy if it
is apparent from the face of the pleadings that the plaintiff
would never be entitled to recover an amount in excess of the
jurisdictional amount. Brady v. Krintzman, No.
12-40064-FDS, 2012 WL 2500593, at *1 (D. ...