Jimenez v. Verdecchia

2000 DNH 248

• Court: District Court, D. New Hampshire
• Decided: November 22, 2000
• Docket: CV-99-266-M
• Status: Published

Opinion

Jimenez v . Verdecchia CV-99-266-M 11/22/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Rafael Jimenez, Plaintiff

v. Civil N o . 99-266-M Opinion N o . 2000 DNH 248 John M . Verdecchia, Defendant

O R D E R

Pro se plaintiff has filed a complaint against defendant

John M . Verdecchia, Esq. Defendant moves to dismiss for lack of

subject matter jurisdiction. Although his complaint describes

several different legal theories, in substance plaintiff seeks

return of a $15,000 retainer he says he paid to Attorney

Verdecchia.

Anticipating a potential need to replace legal counsel then

defending him in a criminal case, plaintiff says he retained

Verdecchia to step in if the need actually arose:

3 . [Contemplating] disagreement with [Attorney] Twomey, plaintiff pre-paid $15,000 to Defendant Verdecchia and told the defendant that, in the event that plaintiff fired M r . Twomey, plaintiff would retain the defendant with the $15,000 to represent him on the drug charges. 4 . After plaintiff paid the $15,000 to the defendant, plaintiff and M r . Twomey resolved their disagreement, plaintiff decided not to fire M r . Twomey. Plaintiff retained M r . Twomey as the only attorney to represent him on the drug charges.

5 . Having decided to proceed with M r . Twomey, plaintiff gave notice immediately to Defendant Verdecchia that his service was no longer needed, and plaintiff requested immediate return of his $15,000. At first, Defendant Verdecchia led plaintiff to believe that he would remit the money immediately, but the defendant did not pay back the money.

Complaint at 3 - 4 (document n o . 1 ) .

While plaintiff goes on to describe his basic claim, in the

alternative, as one for “conversion,” “tortious interference with

right of access to the courts,” “unjust enrichment,” and “legal

malpractice,” those descriptions do not alter its character as a

civil action seeking return of a $15,000 retainer. As such, it

is clear that plaintiff cannot establish diversity jurisdiction,

since the amount in controversy does not exceed “$75,000,

2 exclusive of interest and costs”1 (there is no other plausible

basis for exercising federal jurisdiction 2 ). 28 U.S.C. § 1332.

While plaintiff also asserts a general claim to “punitive

damages,” New Hampshire law does not recognize or permit recovery

of punitive damages. S o , the million dollar punitive damages

claim fails as a matter of state law and cannot serve to meet the

amount in controversy requirement of diversity jurisdiction.

N.H. Rev. Stat. Ann. (RSA) 507:16; See, e.g., DCPB, Inc. v . City

of Lebanon, 957 F.2d 913 (1st Cir. 1992).

New Hampshire does, in very limited circumstances, allow

recovery of “enhanced compensatory damages,” but only in tort

cases, where the tortfeasor’s conduct can fairly be characterized

as “willful, wanton, or oppressive.” Plaintiff has not

adequately pled a claim for enhanced compensatory damages, nor

1 The court recognizes that the magistrate judge previously found the diversity requirements satisfied. It can only be assumed that this conclusion was based on a preliminary review of the complaint and not on any analysis of the request for relief. 2 Plaintiff also invokes, without basis, this court’s federal question, civil rights, and supplemental jurisdiction. Although plaintiff is correct that supplemental jurisdiction can be exercised under some circumstances over a party against whom there is no federal claim, there must be a related federal claim in the case against somebody; there is no such claim here.

3 could h e , given the factual situation he describes. It is

apparent that plaintiff’s claim is one sounding in contract

rather than tort - he essentially claims that defendant is

obligated to return the retainer he paid because defendant’s

legal services were not required and defendant agreed that in

such an event the retainer would be returned. Plaintiff also

seems to claim, alternatively, that he paid for services that

defendant never rendered, or rendered inadequately, entitling him

to return of the retainer. In either case, although plaintiff

says defendant’s conduct was intentional, New Hampshire law does

not permit the recovery of enhanced compensatory damages in

contract cases, even where the breach is intentional. See DCPB

v . Lebanon, supra.

The complaint also fails to allege the elements necessary to

support on enhanced damages claims – wanton, malicious, or

oppressive conduct. But even if it did, the facts and

circumstances pled would not support a plausible claim for such

damages under New Hampshire law. Where the punitive (or

enhanced) damages claim makes up the bulk of the asserted amount

in controversy, a heightened degree of scrutiny and healthy

4 skepticism is appropriate. See, e.g., Anthony v . Security

Pacific Financial Services, Inc., 75 F.3d 3 1 1 , 315 (7th Cir.

1996). Here, it is obvious that the amount in controversy for

diversity jurisdiction purposes is $15,000, and the punitive

(enhanced) damages claim is not legally viable, is exaggerated,

and cannot elevate the amount in controversy to the amount

necessary to support federal jurisdiction.

Plaintiff’s cause of action must be brought in an

appropriate state court.

Accordingly, defendant’s motion to dismiss for lack of

subject matter jurisdiction is hereby granted. The Clerk shall

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 2 2 , 2000

cc: Rafael Jimenez, pro se Kenneth C . Bartholomew, Esq.