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,
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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.
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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
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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.
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