Abdel-Aleem v. OPK Biotech LLC

Decision Date13 January 2012
Docket NumberNo. 11–1373.,11–1373.
PartiesSalah ABDEL–ALEEM, Plaintiff, Appellant, v. OPK BIOTECH LLC, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

665 F.3d 38

Salah ABDEL–ALEEM, Plaintiff, Appellant,
v.
OPK BIOTECH LLC, et al., Defendants, Appellees.

No. 11–1373.

United States Court of Appeals, First Circuit.

Submitted Dec. 8, 2011.Decided Jan. 13, 2012.


[665 F.3d 39]

Mohamad Saleh Ahmad and Yussuf Abdel–Aleem, on brief for appellant.

Michael S. Rabieh, Lichten & Liss–Riordon, P.C., on brief for appellee.

Before BOUDIN, STAHL, and THOMPSON, Circuit Judges.

STAHL, Circuit Judge.

Salah Abdel–Aleem (Abdel–Aleem) was the defendant in a Massachusetts state court lawsuit prosecuted by OPK Biotech LLC. Alleging Massachusetts state law claims of abuse of process and intentional and negligent infliction of emotional distress as a result of that suit, Abdel–Aleem brought an action claiming diversity jurisdiction against OPK Biotech LLC, its CEO, Zafiris Zafirelis, and its registered manager, Alexander Pugachev (collectively, OPK) 1 in federal district court. The district court dismissed the complaint for lack of subject matter jurisdiction, holding that Abdel–Aleem had failed to adequately allege the minimum amount in controversy. We affirm.

I. Facts & Background

On January 1, 2005, Abdel–Aleem began consulting for Biopure Corporation (Biopure). On August 1, 2005, Abdel–Aleem and Biopure executed an Employment Agreement Concerning the Protection of Company Property and the Arbitration of Legal Disputes (Employment Agreement). The Employment Agreement included a provision prohibiting Abdel–Aleem from disclosing confidential or proprietary information to third parties, as well as a non-competition covenant effective during his employment with Biopure and for two years thereafter. On July 28, 2006, after what Abdel–Aleem characterizes as “fundamental differences” with Biopure's CEO, Abdel–Aleem left the company.

Beginning in January 2007, Abdel–Aleem began consulting for IKOR Life Sciences (IKOR). On June 29, 2007, Biopure filed suit against Abdel–Aleem in Massachusetts state court, alleging that in his work for IKOR, Abdel–Aleem had breached the Employment Agreement's confidentiality provision and its non-competition

[665 F.3d 40]

covenant.2 On February 12, 2008, the state court entered a protective order limiting the use of material obtained through discovery containing confidential information or trade secrets of the plaintiff, defendant, and third parties.

Biopure filed for Chapter 11 bankruptcy in July 2009, and in September 2009, sold its assets to OPK, including its interest in the suit against Abdel–Aleem. On March 8, 2010, before OPK moved to substitute itself as plaintiff, the state court dismissed Biopure's complaint without prejudice for failure to prosecute.3 Over the course of several months beginning in June 2010, OPK and Abdel–Aleem attempted to forge an agreement in which OPK offered to release the claims against Abdel–Aleem in exchange for any material that he had produced during discovery that was subject to the protective order. In turn, Abdel–Aleem requested indemnification against any potential lawsuit brought against him by IKOR. OPK refused to so indemnify, and when the parties were unable to come to an agreement, OPK moved to substitute itself for Biopure, and Biopure moved to vacate the judgment of dismissal. The state court granted both motions on February 25, 2011. On March 7, 2011, Abdel–Aleem moved for summary judgment in the state court action.4

The next day, March 8, 2011, Abdel–Aleem filed a complaint (First Complaint) in the United States District Court for the District of Massachusetts, alleging that OPK's prosecution of the state court suit against him constituted an abuse of process under Massachusetts state law. The suit also sought to enjoin the state court proceedings. Abdel–Aleem claimed diversity jurisdiction.5 In describing his damages in his First Complaint, Abdel–Aleem stated that “the amount of [sic] controversy exceeds, exclusive of interest and costs, the amount of ($75,000), pursuant to 28 U.S.C. § 1332,” that, as a result of OPK's allegedly tortious actions, [d]amages have resulted including emotional distress,” and that Abdel–Aleem “ha[d] suffered damage, loss and harm, including but not limited to his reputation, his emotional tranquility, and privacy.”

On March 28, 2011, OPK moved to dismiss Abdel–Aleem's complaint. OPK first argued that Abdel–Aleem had failed to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), as OPK had never caused process to issue against him and thus could not be liable for abuse of process. Second, OPK argued Abdel–Aleem's complaint must be dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because Abdel–Aleem had not sufficiently supported his allegation that the amount in controversy was over $75,000, the jurisdictional minimum under 28 U.S.C. § 1332.

Thereafter, Abdel–Aleem filed an amended complaint (Amended Complaint)

[665 F.3d 41]

on April 5, 2011, reiterating the claim for abuse of process and adding claims for intentional and negligent infliction of emotional distress. This time, Abdel–Aleem alleged that the amount in controversy was “at least $1,000,000.” Abdel–Aleem continued to generally allege “emotional distress.” For his abuse of process claim, Abdel–Aleem again described his damages as “loss and harm, including but not limited to his reputation, his emotional tranquility, and privacy.” He alleged that his damages resulting from the intentional infliction of emotional distress claim were that OPK's conduct “caused him to lose his job, spend thousands of dollars in legal fees, and endure enormous amounts of physical and mental anguish.” Abdel–Aleem further alleged that “[n]o reasonable individual could endure the physical and mental stress that Defendants have inflicted upon [him].” For the negligent infliction of emotional distress claim, he alleged “continued suffering of physical and emotional distress,” that “[a]ny reasonable person subject to Defendants' tortious behavior would have suffered both physical and mental anguish as a result of Defendants' actions,” and that OPK's conduct caused him to “suffer by forcing him to choose between two daunting alternatives”: defending against the “frivolous” lawsuit or releasing confidential information.

After considering the Amended Complaint, the district court granted OPK's motion to dismiss,6 holding that Abdel–Aleem had not “set forth sufficient facts to show that the amount in controversy exceeds the jurisdictional threshold established by 28 U.S.C. § 1332(a).” Abdel–Aleem v. OPK Biotech LLC, No. 11–10397–RGS, 2011 WL 1304642, at *1 (D.Mass. Apr. 6, 2011). Abdel–Aleem timely appealed.

II. Discussion

We review de novo a district court's dismissal for lack of subject matter jurisdiction. Stewart v. Tupperware Corp., 356 F.3d 335, 337 (1st Cir.2004). Abdel–Aleem attempts to establish the district court's original jurisdiction under a diversity theory, as the federal “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different states.” 28 U.S.C. § 1332(a)(1).

The federal plaintiff carries the burden to establish that the minimum amount in controversy has been met. Stewart, 356 F.3d at 338. “[T]he 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.” Id. at 338 (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288–89, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). Good faith is measured objectively; “[t]he question ... is whether to anyone familiar with the applicable law this claim could objectively have been viewed as worth” more than the jurisdictional minimum. Coventry Sewage Assoc. v. Dworkin Realty Co., 71 F.3d 1, 6 (1st Cir.1995) (quoting Jimenez Puig v. Avis Rent–A–Car Sys., 574 F.2d 37, 40 (1st Cir.1978)).

A plaintiff's “ ‘general allegation of damages that meet the amount requirement suffices unless questioned by the opposing party or the court.’ ”

[665 F.3d 42]

Stewart, 356 F.3d at 338 (quoting Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir.2001)). However, once the opposing party has...

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