Kimm v. Kcc Trading, Inc. , 449 F. App'x 85 ( 2012 )

10-4880
Kimm v. KCC Trading, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23rd day of January, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 MICHAEL S. KIMM,
14 Appellant,
15
16 -v.- 10-4880
17
18 KCC TRADING, INC., WON BOK CHOI, MISUK
19 CHOI, JIHAE CHOI,
20 Defendants-Appellees.
21 - - - - - - - - - - - - - - - - - - - -X
22
23 FOR APPELLANT: Michael S. Kimm, pro se,
24 Englewood, New Jersey.
25
26 FOR APPELLEES: John K. Idouchi, Flushing, New
27 York.
1
1
2 Appeal from a judgment of the United States District
3 Court for the Southern District of New York (Baer, J.).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6 AND DECREED that the judgment of the district court be
7 AFFIRMED.
8
9
10 Michael Kimm, pro se, appeals from the dismissal of his
11 complaint, for lack of subject matter jurisdiction, on the
12 ground that he failed to satisfy the threshold amount-in-
13 controversy requirement. We assume the parties’ familiarity
14 with the underlying facts, the procedural history, and the
15 issues presented for review.
16
17 “In reviewing a district court’s dismissal of a
18 complaint for lack of subject matter jurisdiction, we review
19 factual findings for clear error and legal conclusions de
20 novo.” Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d
21 Cir. 2008) (per curiam).
22
23 To invoke diversity jurisdiction, the amount in
24 controversy must exceed $75,000. 28 U.S.C. § 1332(a).
25 “This Court recognizes a rebuttable presumption that the
26 face of the complaint is a good faith representation of the
27 actual amount in controversy.” Wolde–Meskel v. Vocational
28 Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d
29 Cir. 1999). To defeat this presumption, it “‘must appear to
30 a legal certainty that the claim is really for less than the
31 jurisdictional amount.’” Id. (quoting St. Paul Mercury
32 Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).
33
34 Kimm, who alleged generally that this action involved
35 an amount in controversy exceeding $75,000, sought to
36 recover an unspecified unpaid balance as well as legal fees
37 and costs incurred in this action. In opposition, the
38 Appellees established that they owed an unpaid balance of
39 only $45,957.75. The letter from the fee arbitration
40 committee, which states only that the total fee Kimm charged
41 exceeded $100,000, does not bear an inference as to the
42 amount of the unpaid balance.
43
44 Attorneys’ fees may be used to satisfy the amount in
45 controversy only if they are recoverable as a matter of
46 right pursuant to statute or contract. Givens v. W.T. Grant
47 Co., 457 F.2d 612, 614 (2d Cir. 1972), vacated on other
2
1 grounds, 409 U.S. 56 (1972); see also 28 U.S.C. § 1332(a)
2 (“The district courts shall have original jurisdiction of
3 all civil actions where the matter in controversy exceeds
4 the sum or value of $75,000, exclusive of interest and costs
5 . . . .”). The retainer agreement provides that Appellees
6 must indemnify Kimm for costs incurred if they assert a
7 “claim” against him. But Kimm is the plaintiff here.
8
9 Even if the indemnification provision applies, Kimm has
10 not established the necessary amount in controversy. His
11 bare statement that his costs exceed $30,000 provides no
12 assurance that this estimate is made in good faith and
13 “colorable for the purpose of conferring jurisdiction.” See
14 Chase Manhattan Bank, N.A. v. Am. Nat’l Bank & Trust Co. of
15 Chi., 93 F.3d 1064, 1070 (2d Cir. 1996).
16
17
18 Finding no merit in Kimm’s remaining arguments, we
19 hereby AFFIRM the judgment of the district court.
20
21
22
23 FOR THE COURT:
24 CATHERINE O’HAGAN WOLFE, CLERK
25
26
3