MILLS v. BYCK

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LAWRENCE MILLS,

Plaintiff,

Civil Action No. 19-14349

v. (JMV) (MF)

HARRISON BYCK and KASURI & BYCK, OPINION & ORDER

LLC,

Defendants.

John Michael Vazquez, U.S.D.J.

Pro se Plaintiff Lawrence Mills seeks to bring this action in forma pauperis pursuant to

28 U.S.C. § 1915. D.E. 1. For the reasons discussed below, the Court GRANTS his application

to proceed in forma pauperis but DISMISSES the Complaint WITHOUT PREJUDICE

pursuant to 28 U.S.C. § 1915(e)(2)(B). As will be discussed below, however, the Court has real

concems as to whether Plaintiff will be able to sufficiently plead the required monetary threshold

required to invoke diversity jurisdiction.

Under 28 U.S.C. § 1915, this Court may excuse a litigant from prepayment of fees when

the litigant “establish[es] that he is unable to pay the costs of his suit.” Walker v. People Express

Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989). Here, Plaintiff sufficiently establishes his

inability to pay, and the Court grants his application to proceed in forma pauperis without

prepayment of fees and costs.!

Based on his application, Plaintiff qualifies for in forma pauperis. See D.E. 1-2. However,

Plaintiff did pay Defendants a $5,000 retainer, which appears to undercut his current claim of

indigency. Nevertheless, the Court basis its decision on Plaintiff's current application.

When allowing a plaintiff to proceed in forma pauperis, the Court must review the

complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to

state a claim upon which relief may be granted, or seeks monetary relief against a defendant who

is immune. 28 U.S.C. § 1915(e)(2)(B). When considering dismissal under Section

1915(e)(2)(B)Gi) for failure to state a claim on which relief can be granted, the Court must apply

the same standard of review as that for dismissing a complaint under Federal Rule of Civil

Procedure 12(b)(6). Schreane v. Seana, 506 F. App’x 120, 122 Gd Cir. 2012).

To state a claim that survives a Rule 12(b)(6) motion to dismiss, a complaint must

contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009). Although the

plausibility standard “does not impose a probability requirement, it does require a pleading to

show more than a sheer possibility that a defendant has acted unlawfully.” Connelly v. Lane

Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted).

As a result, a plaintiff must “allege sufficient facts to raise a reasonable expectation that

discovery will uncover proof of her claims.” Jd, at 789. In other words, although a plaintiff need

not plead detailed factual allegations, “a plaintiff's obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp., 550 U.S. at 555 (internal quotations

omitted).

Because Plaintiff is proceeding pro se, the Court construes the pleadings liberally and

holds them to a less stringent standard than those filed by attorneys. Haines v. Kerner, 404 U.S,

519, 520 (1972). “The Court need not, however, credit a pro se plaintiff's ‘bald assertions’ or

‘legal conclusions.’” D'Agostino v. CECOM RDEC, 2010 WL 3719623, at *1 (D.N.J. Sept. 10,

2010).

In addition, to the sufficiency of the pleadings, this Court also has an independent

obligation to establish that it has subject-matter jurisdiction. Morel v. INS, 144 F.3d 248, 251

(3d Cir. 1998). Here, Plaintiff invokes the diversity jurisdiction pursuant to 28 U.S.C. § 1332.

I. Facts & Procedural History”

Pro se Plaintiff is a resident of Silver Spring, Maryland. Compl. § 1. Defendant

Harrison Byck (“Byck”) is a resident of Bensalem, Pennsylvania and works at the law office of

Kasuri & Byck, LLC. /d. §2. Defendant Kasuri & Byck, LLC is a limited lability company

with its principal place of business in Edison, New Jersey? Id. 43.

On December 5, 2017, Plaintiff allegedly paid Defendants a $5,000 legal retainer “to file

a lawsuit against the Golden Nugget.” Jd. § 7. Plaintiff allegedly formed a contract’ with

Defendants that “clearly states that Byck was to bill against the retainer on an hourly basis.” □□□

{ 8 On September 12, 2018, Defendants requested an “additional retainer deposit” from

Plaintiff amounting to $3,500 even though Defendants had not yet filed a lawsuit against the

Golden Nugget. After Plaintiff emailed Byck on February 6, 2018 asking why a lawsuit

? The factual background is taken from the Complaint, D.E. 1 (“Complaint” or “Compl.”). For

the purposes of this screening pursuant to 28 U.S.C. § 1915(e)(2)(B) “the Court accepts as true

all well-pleaded facts in the complaint.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d

Cir. 2009).

3 For purposes of diversity jurisdiction, the citizenship of a limited liability company “is

determined by the citizenship of its members.” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d

99, 105 (3d Cir. 2015). Here, Plaintiff does not list the citizenship of the LLC’s members, so the

Court will assume, without deciding, that all members of the LLC are citizens of a different state

than Plaintiff.

4 The contract, an apparent retainer entitled “Legal Services Agreement,” was not attached to the

Complaint. See D.E. 1.

had not been filed, Byck allegedly responded a couple days later, “we can not [sic] move forward

without the court filing fees and sheriff fees.” Jd. Plaintiff allegedly paid $330.75 to cover those

costs. Jd.

On February 22, 2019, Plaintiff claims to have requested a refund for the balance of the

retainer, Jd. 10. Defendants failed to respond. /d. Plaintiff then filed a fee dispute with the

fee-arbitration committee for Middlesex County, and Byck responded that the retainer was “a

‘flat fee’ for doing research to determine whether a lawsuit should be filed.”> Jd. □□□ Plaintiff

alleges that Byck’s response was inconsistent with their contract, titled “Legal Services

Agreement” (“Agreement”), which stated, “Type of Legal Fee: Retainer to billed [sic] against at

$450.00/hr.” fd. Plaintiff believes that Defendants did not do any research on his case, since

Plaintiff was never provided any work product. /d. f§ 12-13. Plaintiff contends that the

“purpose of the retainer was for Byck to actually litigate the case, and the contract clearly states

he was hired to file the lawsuit, not merely to determine if a lawsuit should be filed.” Jd. § 14.

Defendants have allegedly refused to provide Plaintiff with a billing statement and to refund any

of the unused $5,000 retainer.” Jd. § 15. Plaintiff alleges that Defendants’ “unlawful and

tortious actions...were undertaken with actual malice.” /d, 16.

Plaintiff filed his Complaint on June 25, 2019, listing seven counts: conversion (Count J);

consumer fraud (Count [1); common law fraud (Count III); unjust enrichment (Count I'V); breach

of contract (Count V); negligence (Count VD); and gross negligence (Count VII). D.E. 1 9] 18-

56.

> It appears that the fee arbitration is ongoing. Of course, if Plaintiff is successful in the

arbitration, he should be able to recover any relevant fees that were paid to Defendants.

Il. Subject Matter Jurisdiction

The threshold issue in this case is whether the Court has subject matter jurisdiction.

Plaintiff seeks $75,000 in actual damages, $10,000 in treble and statutory damages, $75,000 in

punitive damages, costs, and attomey’s fees. Jd. § 57. However, it appears that his actual

damages are, at most, $5,000 for the retainer he paid Defendants and the additional $330.75 he

submitted for filing fees.

To establish diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), “the party asserting

jurisdiction must show that there is complete diversity of citizenship among the parties and an

amount in controversy exceeding $75,000.” Schneller ex rel. Schneller v. Crozer Chester Med.

Ctr., 387 Fed. Appx. 289, 292 (3d Cir. 2010). The Court must look at the Complaint at the time

it was filed to determine the amount in controversy. See Angus v. Shiley, Inc., 989 F.2d 142, 145

(3d Cir, 1993). “In reviewing the complaint, ‘the sum claimed by the plaintiff controls if the

claim is apparently made in good faith. It must appear to a legal certainty that the claim is really

for less than the jurisdictional amount to justify dismissal.’” Auto—Owners Ins. Co. v. Stevens &

Ricci, Inc., 835 F.3d 388, 395 (3d. Cir. 2016) (quoting St. Paul Mercury Indem. Co. v. Red Cab

Co., 303 U.S. 283, 288-89 (1938)). Further, the amount in controversy is measured “by a

reasonable reading of the value of the rights being litigated.” Jd.

Here, the Court has a real concern that Plaintiff does not meet the required amount in

controversy. “Where both actual and punitive damages are recoverable under a complaint each

must be considered to the extent claimed in determining jurisdictional amount.” Bell v.

Preferred Life Assur. Soc. of Montgomery, Ala., 320 U.S. 238, 240 (1943). “[P]unitive damages

and attorney’s fees...may be aggregated with the compensatory damages when determining the

amount in controversy.” Andrews v. Home Depot U.S.A., Inc., 2010 WL 5464303, at *3 (D.N.J.

Dec. 29, 2010) (citing Frederico v. Home Depot, 507 F.3d 188, 199 (3d Cir. 2007)). However,

where punitive damages would “represent the bulk of any possible recovery to satisfy the amount

in controversy requirement,” courts have subjected those claims to “particularly close scrutiny.”

Sacchi v, ABC Fin. Servs., Ine., 2014 WL 4095009, at *4 (D.N.J. Aug. 18, 2014) (citing Packard

v, Provident Nat. Bank, 994 F.2d 1039, 1046 (3rd Cir.1993)). “The Third Circuit has held that

when the claimed ‘punitive damages [are] patently frivolous, without foundation because such

damages are unavailable as a matter of law, that claim must be stricken from the amount in

controversy.’” Onyiuke v. Cheap Tickets, Inc., 2009 WL 5218064, at *3 (D.N.J. Dec. 31, 2009),

aff'd, 435 F. App’x 137 Gd Cir. 2011) (quoting Packard, 994 F.2d at 1046) (internal quotation

marks omitted).

Here, it appears to be a legal certainty that Plaintiff cannot recover the jurisdictional

amount. As noted, from the face of the Complaint, it appears that Plaintiff's actual damages are

at most $5,330.75. This amount is well below the jurisdictional requirement of over $75,000.

While Plaintiff demands more, his Complaint does not set forth sufficient facts establishing that

he has any realistic possibility of recovering such amounts. Thus, the Court dismisses Plaintiff's

Complaint without prejudice for lack of subject matter jurisdiction. Normally, the Court would

dismiss the matter with prejudice, but since Plaintiff is proceeding pro se, the Court will give

Plaintiff one additional opportunity to demonstrate that he can meet the jurisdictional amount.

III. Sufficiency of the Allegations®

a. Count I— Conversion

Plaintiff alleges that Defendants “uniawfully converted the retainer for its own use and

benefit...” Jd. | 28. Conversion is the “wrongful exercise of dominion or control over property

© Although the Court is dismissing the Complaint for lack of subject matter jurisdiction, it will

analyze the following counts in the case that Plaintiff decides to amend his Complaint.

of another without authorization and to the exclusion of the owner’s rights in that property.”

City of Atl. City v. Zemnrray St. Capital, LLC, 2017 WL 6638203, at *17 (D.N.J. Dec, 29, 2017)

(quoting Chicago Title Ins. Co. v. Ellis, 409 N.J. Super. 444, 456 (App. Div. 2009)) (internal

quotation marks omitted). Under New Jersey law, the elements of conversion are “(1) the

existence of property, (2) the right to immediate possession thereof belonging to plaintiff, and (3)

the wrongful interference with that right by defendant.” Jd.

Here, Plaintiff's right to immediate possession of the $5,000 depends on the parties’

performance under the contract. However, without more information, including the contract at

issue, the Court cannot determine whether this claim is sufficiently pled. “It is essential that the

money converted by a tortfeasor must have belonged to the injured party.” Advanced

Enterprises Recycling, Inc. v. Bercaw, 376 N.J. Super. 153, 161 (App. Div. 2005) (quoting

Commercial Ins. Co. af Newark v. Apgar, 111 N.J. Super. 108, 115 (Law Div. 1970)) (internal

quotations omitted). Accordingly, the Complaint does not plausibly allege conversion, and thus,

Count Lis dismissed without prejudice.

b. Count II —- Consumer Fraud

Plaintiff brings a claim for consumer fraud under the New Jersey Consumer Fraud Act

(“NICFA”), N.ILS.A. 56:8-1 et seg. To state a claim under NJCFA, N.J.S.A. § 56:8-1 ef seq., “a

plaintiff must allege ‘1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff and

3) a causal relationship between’ the two.” Hassler v. Sovereign Bank, 374 Fed. Appx. 341, 343

(3d Cir. 2010) (quoting Bosland v. Warnock Dodge, Inc., 964 A.2d 741, 749 (N.J. 2009)).

However, “[p]rofessional services, such as attorney’s services, are not actionable under the

NICFA.” Harnish v. Widener Univ, Sch. of Law, 931 F. Supp. 2d 641, 650 (D.N.J. 2013) (citing

to Vort v. Hollander, 257 N.J. Super. 56, 62 (N.J. Super. Ct. App. Div, 1992) (“[A]ttorney’s

services do not fall within the intendment of the Consumer Fraud Act.”)). Therefore, Count II is

dismissed with prejudice.

ce. Count [i ~ Common Law Fraud

Plaintiff also brings a claim for common law fraud. Stating a claim for common law

fraud requires a plaintiff to allege “(1} a material misrepresentation of a presently existing or past

fact; (2) knowledge or belief by defendant of its falsity; (3) an intention that the other person rely

on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.” Eberhart

v. LG Elecs. USA, Inc., 188 F. Supp. 3d 401, 408 (D.N.J. 2016) (quoting Banco Popular N. Am.

V. Gandi, 876 A.2d 253, 260 (N.J. 2005)) (internal quotation marks omitted)). Fraud must be

pled with particularity pursuant to Federal Rule of Civil Procedure 9(b). See Frederico, 507 F.3d

at 200 (3d Cir. 2007).

Here, Plaintiff alleges that Defendants “made a material misrepresentation when Kasuri

& Byck, LLC offered to litigate a lawsuit at an hourly rate, billed against a $5,000 retainer.”

Compl. | 38. Plaintiff also generally alleges that Defendants had knowledge or belief of the

falsity of the claim; that the material misrepresentation was made to him with the intention that

he rely on it; that subsequently he reasonably relied on Defendants; and that as a result, there was

a financial loss of $5,000. Jd. However, pursuant to Rule 9(b), the circumstances of fraud must

be pled with particularity. See Fed. R. Civ. P. 9(b). The Third Circuit has interpreted this Rule

to require plaintiffs “plead ‘the who, what, when, where, and how: the first paragraph of any

newspaper story.” Jn re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999).

Therefore, Plaintiff fails to meet the NJICFA’s heightened pleading requirement, and Count III is

dismissed without prejudice.

d. Count V — Breach of Contract

Plaintiff alleges that he had a valid contract with Defendants. Compl. {J 11, 44. Stating

a claim for breach of contract under New Jersey law requires a plaintiff to allege “(1) a contract;

(2) a breach of that contract; (3) damages flowing therefrom; and (4) that the party performed its

own contractual duties.” Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 210 F. Supp. 2d

552, 561 (D.N.J. 2002). In interpreting a contract, a court must determine the intention of the

parties as revealed by the language in the agreement. Globe Motor Co. v. Igdalev, 225 N.J, 469,

483 (2016)). To this end, the plain language of the contract is ordinarily the best indicator of the

parties’ intent. Chubb Customs Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008)

(citation omitted),

Plaintiff alleges that the parties entered into the Agreement, thus satisfying the first

element. Compl. #4] 11, 44. Plaintiff further alleges that Defendants breached the contract “by

charging [Plaintiff] $5,000 as a flat rate rather than the hourly rate specified in the Contract” and

“by refusing to provide a billing statement or refund of the unearned retainer upon request.” □□□

{| 45-46. This satisfies the second element of a breach of contract claim. In satisfaction of the

third element, Plaintiff alleges this breach has caused him to lose his $5,000 retainer, among

other damages. /d. | 17. Finally, Plaintiff satisfies the fourth element by alleging performance

of his own contractua! duties, including the payment of $5,000. /d. 47. Accordingly, Plaintiff

plausibly pleads a breach of contract claim, and thus, Count V is otherwise sufficiently stated.

e. Count IV — Unjust Enrichment

Plaintiff also sets forth a claim for unjust enrichment. “To state a claim for unjust

enrichment, a plaintiff must allege (1) at plaintiff's expense (2) defendant received benefit (3)

under circumstances that would make it unjust for defendant to retain benefit without paying for

Adamson v. Ortho-McNeil Pharm., inc., 463 F. Supp. 2d 496, 505 (D.N.J. 2006). “Quasi-

contract liability will not be imposed when a valid, unrescinded contract governs the rights of the

parties.” Duffy v. Charles Schwab & Co., 123 F. Supp. 2d 802, 814 (D.N.J. 2000). “Since a

plaintiff must confer a benefit on the defendant to support an unjust enrichment claim, this

element has been interpreted by New Jersey courts as a requirement that ‘the plaintiff allege a

sufficiently direct relationship with the defendant to support the claim.’” Snyder v. Farnam

Companies, Inc., 792 F. Supp. 2d 712, 724 (D.N.J. 2011) (quoting Nelson v. Xacta 3000 Inc.,

2009 WL 4119176, at *3 (D.N.J. Nov. 24, 2009)). Furthermore, New Jersey’s doctrine of unjust

enrichment serves to protect a party’s interest where an adequate remedy does not exist at law

and equity demands restitution. Cooper v. Samsung Elecs, Am., Inc., 2008 WL 4513924, at *9

(D.N.J. Sept. 30, 2008), aff'd, 374 F. App’x 250 (3d Cir. 2010).

Here, Plaintiff has properly plead unjust enrichment, seeing that Defendants’

“retention of Plaintiff's money without having earned the retainer is unjust.” Compl. § 41. In

Bobst N. Am, v, EC3, LLC, 2018 WL 2175773, at *3 (D.N.J. May 11, 2018), the Court noted that

the plaintiff could not recover on both a contract theory and a theory of unjust enrichment. As

seen above, Plaintiff alleges that a valid contract exists between the parties. Jd. J 11, 44.

Nevertheless, at the pleading stage, a plaintiff can assert claims in the alternative. As a result,

Count IV is sufficiently pled.

f. Counts VI & VII — Negligence and Gross Negligence

Plaintiff brings claims for negligence (Count VI) and gross negligence (Count VII)

against Defendants. “Negligence involves a breach of a duty of care that causes injury.”

Roecisano v. Twp. of Franklin, 2013 WL 3654101, at *11 (D.NJ. July 12, 2013) (citing

Weinberg v. Dinger, 106 N.J. 469, 484 (1987)). Thus, “to succeed on a negligence claim, a

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plaintiff must show: (1) a duty of care, (2) a breach of that duty, (3) causation, and (4) actual

damages.” dd. (citing Weinberg, 106 N.J. at 484). “With regard to a claim of gross negligence,

the difference between gross and ordinary negligence is one of degree rather than of quality.”

Smith v. Kroesen, 9 F. Supp. 3d 439, 442 (D.N.J. 2014) (quoting Fernicola v. Pheasant Run at

Barnegat, 2010 WL 2794074, *2 (N.J. Super. Ct. App. Div. July 2, 2010)) (internal quotations

omitted). “Gross negligence refers to behavior which constitutes indifference to consequences,”

Id. (quoting Griffin v. Bayshore Medical Center, 2011 WL 2349423, *5 (N.J. Super. Ct. App.

Div. May 6, 2011)).

Here, Plaintiff alleges that Defendants “had a duty to train and supervise their employees

as to how to manage client retainers and abide by contractual agreements.” Compl. {| 50.

Defendants allegedly breached this duty by “improperly training, hiring, and/or supervising its

employees[,]” id., and proximately caused Plaintiff “to lose thousands of dollars, and suffer

mental anguish and suffering; outrage, and...ctherwise expose[] [Plaintiff] to great

inconvenience and harm{,]” id. Based on these assertions, Plaintiff appears to allege claims

of negligent hiring, supervision, and/or training.

To state a claim for the torts of negligent hiring or supervision, Plaintiff must allege that

“{1) the employer knew or had reason to know that its employee was unfit, incompetent, or

dangerous, and that those qualities created a risk of harm to other persons; and (2) because of the

employer’s negligent hiring or supervision, the employee’s unfitness, incompetence, or

dangerous characteristics proximately cause [sic] the plaintiffs injuries.” Capers v. FedEx

Ground, 2012 WL 2050247, at *3 (D.N.J. June 6, 2012). Here, Plaintiff fails to sufficiently

allege that Defendants knew or had reason to know any of the employees were unfit,

incompetent, or dangerous.

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To state a claim for negligent training, Plaintiff must allege that “(1) the defendant owed

a duty of care to the plaintiff to properly train its employees, (2) defendant breached that duty of

care, (3) defendant’s breach was the proximate cause of piaintiff’s injury, and (4) defendant’s

breach caused actual damages io plaintiff.” Brijall v. Harrah’s Atlantic City, 905 F. Supp. 2d

617, 621 (D.N.J. 2012) (citing Stroby v. Egg Harbor Twp., 754 F. Supp. 2d 716, 721 (D.N.J.

2010)). Here, Plaintiff conclusory alleges that Defendants breached their duty of care “by

improperly training” their employees. Compl. § 50. Although Plaintiff argues “{t]here was no

basis whatsoever for Defendants keep [sic] Plaintiff's entire retainer as a flat fee for merely

doing research[,]” id., Plaintiff provides an insufficient factual basis to support its claim that

Defendants improperly trained any of the employees.

Thus, Plaintiff does not plausibly plead his negligence claim. Due to the Court’s

“dismissal of Plaintiff[’s] negligence claim, the claim for gross negligence must necessarily be

dismissed as well. Gross negligence differs from negligence only in degree, not in kind.”

Graddy v. Deutsche Bank, 2013 WL 1222655, at *3 (D.N.J. Mar. 25, 2013) (citing Monaghan v.

Holy Trinity Church, 646 A.2d 1130, 1133 (N.J. App. Div. 1994)). Accordingly, Counts VI and

VII are dismissed without prejudice.

TV. Leave to Amend

A court must grant leave to amend a complaint “absent evidence that amendment would

be futile or inequitable.” Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). An amended

complaint would be futile if it “would fail to state a claim upon which relief could be granted.”

id. at 115. Because Plaintiff is proceeding pro se and is entitled to a more relaxed standard of

review than if he was represented by counsel, the Court will grant him an opportunity to amend

his pleadings and plausibly state his remaining allegations. Additionally, the Court requests that

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Plaintiff inform the Court of the outcome of his pending fee arbitration in Middlesex County as

soon as it is resolved.

Accordingly, for the foregoing reasons, and for good cause shown,

IT IS on this 24" day of July, 2019,

ORDERED that the Clerk of the Court is directed to file the Complaint, D.E. 1, without

prepayment of the filing fee; and it is further

ORDERED that Plaintiff's Complaint is otherwise DISMISSED without prejudice for

lack of subject matter jurisdiction. In addition, a number of counts are not sufficiently pled; and

it is further

ORDERED that Plaintiff is afforded thirty (30) days to file an amended complaint that

cures the deficiencies as set forth above. Failure to file an amended complaint within this time

will result in the entire case being dismissed with prejudice. If the matter is dismissed with

prejudiced, Plaintiff will not be able to sue the Defendant/s in the future based on the allegations

in the Complaint’; and it is further

ORDERED that the Clerk’s Office shall deliver a copy of this Opinion & Order to

Plaintiff by regular mail and by certified mail return receipt.

John Michael Vazquez, B/D.J.

7 The Court notes that if Plaintiff does not believe that he can sufficiently allege the jurisdictional

amount, Plaintiff should notify the Court that he wishes to dismiss the current matter. This will

give Plaintiff the opportunity to potentially refile this action in state court if he so chooses.

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