Green v. Turkish

• Decision Date: 27 December 1957
• Docket Number: Civ. No. 18018.
• Parties: Jacob GREEN, individually and t/a Green Produce, Plaintiff, v. Harry TURKISH, Defendant.
• Court: U.S. District Court — Eastern District of New York

158 F. Supp. 195

Jacob GREEN, individually and t/a Green Produce, Plaintiff, v. Harry TURKISH, Defendant.

Civ. No. 18018.

United States District Court E. D. New York.

December 27, 1957.

Harold Krieger, New York City, for plaintiff.

David Siskind, New York City, for defendant.

ZAVATT, District Judge.

The defendant has moved, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to dismiss the action herein on the ground that the Court lacks jurisdiction over the subject matter thereof, and on the further ground that the complaint fails to state a claim upon which relief can be granted.

In substance, the complaint alleges diversity of citizenship of the parties; that "the matter in controversy exceeds, exclusive of interests and costs the sum of Three Thousand ($3,000) Dollars"; that the defendant is "engaged in Interstate Commerce in the business of fruit and produce broker"; that in January, 1937, the parties entered into a contract whereby, in consideration "of a brokerage fee of five cents per package plus reimbursement for handling costs and purchase price, defendant was to buy as plaintiff's agent and fiduciary, sundry goods and to render to the plaintiff, a periodic accounting therefor"; that from time to time thereafter, the defendant made purchases on behalf of the plaintiff, and submitted statements and accounts of such "brokerage operations", in which he "fraudulently and deceitfully and otherwise misrepresented handling costs and purchase prices thereby defrauding plaintiff"; that plaintiff relied to his detriment, and made payment, on the basis of such fraudulently rendered statements of account; that plaintiff has terminated the contract, and has demanded payment of all monies paid by him in excess of payments called for by the contract, which repayment defendant has refused to make; and that plaintiff "has no means of ascertaining the exact amount of monies fraudulently obtained by defendant from plaintiff by virtue of defendant's fraudulent conduct extending over a period of twenty years and which can only be ascertained by a full and complete accounting of all of the defendant's transactions on behalf of the plaintiff with respect to such brokerage relationship".

The plaintiff seeks an accounting by the defendant "for all purchases made, actual costs experienced and monies received, disbursed and retained by him" as a result of his dealings with the plaintiff, and that upon such accounting the plaintiff have judgment for the amount found due as a result of defendant's alleged fraudulent conduct.

Defendant argues that the complaint does not establish the necessary jurisdictional requirement as to amount in controversy, i. e., that the formal allegation that the matter in controversy exceeds, exclusive of interest and costs, the sum of three thousand dollars is negatived by the subject matter of the complaint which contradicts the formal statement, and thereby nullifies it and makes the complaint insufficient. I cannot agree with this position. It is sufficient to allege formally that the matter in controversy exceeds, exclusive of interest and costs, the sum of three thousand dollars, unless the complaint contains other allegations which qualify or detract from this formal allegation in such measure that when all are considered together it cannot fairly be said that jurisdiction appears on the face of the complaint. KVOS, Inc. v. Associated Press, 1936, 299 U.S. 269, 277, 57 S.Ct. 197, 81 L.Ed. 183; Olan Mills v. Enterprise Pub. Co., 5 Cir., 1954, 210 F.2d 895, 896. Here, defendant's motion does not traverse the truth of the allegation of jurisdiction as set forth in the complaint, nor does it recite facts not set forth in the complaint, nor is any proof offered by defendant, which would cause this Court to enter upon an inquiry to ascertain whether this action is one over which it has jurisdiction. A fair reading of the complaint is that the amount in controversy exceeds the jurisdictional amount, and that plaintiff has no means of ascertaining the exact amount of monies allegedly fraudulently obtained, for which reason he seeks an accounting. So read, it does not appear to a legal certainty that the claim is really for less than the jurisdictional amount. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845; Lee-Wilson, Inc. v. General Electric Co., 1 Cir., 1955, 222 F.2d 850, 852. The instant situation is similar to that in City of Jamestown v. Pennsylvania Gas Co., D.C.W.D.N.Y.1920, 263 F. 437, modified on other grounds and affirmed, 2 Cir., 1924, 1 F.2d 871, where an allegation that injury "though uncertain in amount, aggregates more than $3,000, exclusive of interest and costs," was held to be sufficient. For the foregoing reasons, defendant's motion to dismiss for want of jurisdiction must be denied.

The defendant claims, further, that the complaint is lacking in the elements necessary to establish a claim for an accounting. In testing the sufficiency of the complaint upon a motion to dismiss for failure to state a claim under Rule 12(b) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A., the allegations of...