DocketNumber： 95-1475
Filed Date： 6/30/1995
Status： Precedential
Modified Date： 9/21/2015
Jun 30, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1475
ROY A. DAY,
Plaintiff, Appellant,
v.
KENZO NAKAMURA, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge] ___________________
____________________
Before
Cyr, Boudin and Lynch,
Circuit Judges. ______________
____________________
Roy A. Davis, pro se, on motion for summary reversal. ____________
Marshall D. Stein and Cherwin & Glickman on motion for summary __________________ ___________________
affirmance and memorandum in support of motion for summary affirmance
for appellees.
____________________
____________________
Per Curiam. Plaintiff-appellant, Roy A. Day, ___________
appeals pro se from the district court's dismissal of his ___ __
complaint for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1). Appellees have moved for summary
affirmance. Day has moved for summary reversal. We
summarily affirm the dismissal of this complaint.
I. Diversity Jurisdiction ______________________
"Once challenged, . . . , the party seeking to
invoke jurisdiction has the burden of alleging with
sufficient particularity the facts indicating that it is not
a legal certainty that the claim involves less than the
jurisdictional amount. A party may meet this burden by
amending the pleadings or by submitting affidavits."
Department of Recreation & Sports v. World Boxing Ass'n, 942 _________________________________ __________________
F.2d 84, 88 (1st Cir. 1991).
Day has failed to meet his burden. He did not
amend the pleadings or submit affidavits in response to
appellees' motion to dismiss. Although the complaint seeks
$180,000 in compensatory damages, the entire purchase price
of the computer was only $2,385. Therefore, even if the
inability to purchase additional memory rendered the computer
completely useless (which Day admits it did not), the
compensatory damages would not approach $50,000. The
complaint does not allege lost profits or other consequential
business losses.
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Whether Massachusetts or Florida law controls (a
matter about which the parties disagree), damages for mental
pain and suffering and punitive damages are not recoverable
on these facts. Therefore, Day has failed to plead facts
indicating that it is not a legal certainty that his claims
involve less than $50,000.
II. Federal Question Jurisdiction _____________________________
Defendant's motion to dismiss was pursuant to both
Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The district court
dismissed the complaint pursuant to 12(b)(1). Day argues on
appeal that the adequacy of the jurisdictional amount is
"moot" because the complaint arises under the Sherman and
Clayton Acts and that, therefore, there is federal question
jurisdiction pursuant to 28 U.S.C. 1331. We may affirm the
district court's 12(b)(1) dismissal on any independently
sufficient ground, including failure to state a claim. See ___
Watterson v. Page, 987 F.2d 1, 7 n.3 (1st Cir. 1993). _________ ____
The basis of Day's claims under the Sherman and
Clayton Acts is that defendants engaged in the following
"monopolistic practices":
deny[ing] . . . citizens additional
``random accessory memory' . . . for NEC
computers at a reasonable and competitive
purchase price, solely for the purpose to
force, coerce and intimidate the citizens
to purchase a ``new NEC computer' by using ________________
correspondence which is replete with
``falsehoods, fraud, misrepresentations
and half-truths,'. . . .
-3-
As the appellees point out in their Opposition to Appellant's
Motion for Summary Reversal, the claim is illogical: "[W]ith
such a range of alternative[] [lap top computers] available,
appellant's dissatisfaction with the cost of enhancing the
memory on his NEC machine would result in his purchasing a
competitor's product, rather than being forced to buy another
product from NEC."
The complaint alleges that NEC sells additional
memory for the 286V at unreasonable and noncompetitive
prices. It also alleges, however, that NEC -- far from
having a monopoly in the supply of additional RAM for the
286V -- does not have the RAM for sale at all. The alleged
"monopolistic practices" could not even conceivably have the
effect of restraining competition or creating a monopoly.
The complaint's vague and contradictory allegations fail to
state a claim under the federal antitrust laws.
Accordingly, the district court's dismissal of this
complaint is affirmed. See Loc. R. 27.1. Appellees' request ________ ___
for an injunction restricting Day's filings with the district
court is denied. Appellees may file a motion with the ______
district court seeking an injunction from future filings if
the need arises.
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