Day v. Nakamura ( 1995 )

USCA1 Opinion

          Jun 30, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1475



                                     ROY A. DAY,



                                Plaintiff, Appellant,



                                          v.



                               KENZO NAKAMURA, ET AL.,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Douglas P. Woodlock, U.S. District Judge]
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                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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            Roy A. Davis, pro se, on motion for summary reversal.
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            Marshall  D. Stein and  Cherwin &  Glickman on  motion for summary
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        affirmance and memorandum in support  of motion for summary affirmance

        for appellees.





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                      Per  Curiam.    Plaintiff-appellant,  Roy  A.  Day,
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            appeals pro  se from  the district court's  dismissal of  his
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            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
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                      "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
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            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
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                      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
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            Watterson v. Page, 987 F.2d 1, 7 n.3 (1st Cir. 1993).
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                      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
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                      correspondence  which   is  replete  with

                      `falsehoods,   fraud,  misrepresentations

                      and half-truths,'. . . .







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            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
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            for an injunction restricting Day's filings with the district



            court  is denied.    Appellees may  file  a motion  with  the
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            district court  seeking an injunction from  future filings if



            the need arises.



















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