The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge.
This case was referred to me by Judge Walton for all purposes including trial pursuant to LCvR 73.1(a). Currently pending before me is Defendant J.A. Jones/Tompkins Builders, Inc.'s Motion To Dismiss For Lack Of Subject Matter Jurisdiction ("D.Mot."). For the reasons set forth herein, defendant's motion to dismiss will be denied.
This is a breach of contract and tort action by an allegedly terminated subcontractor against a general contractor, which arises out of the construction of a new multi-use commercial and residential complex known as the Jefferson at Penn Quarter, 616 E Street, NW, Washington, DC.*fn1 By written agreement, J.A. Jones/ Tompkins Builders, Inc., ("Tompkins") contracted with the owner at the Jefferson for the construction of the Penn Quarter project ("Project"). Complaint, ¶ 5. Plaintiff alleges that in mid-February 2002, during the course of a meeting with Federal Fire Protection Corporation ("Federal") held at Tompkins' office concerning another project, Tompkins solicited a bid from Federal for the sprinkler system portion of the project. Id. at ¶ 6. At that time, Tompkins provided to Federal the plans and specifications necessary to prepare a bid, and on February 25, 2002, Federal submitted its written bid to Tompkins' solicitation"for the work encompassed by Division 15 of the Specifications, Fire Protection, as modified by clarifications and exclusions contained in Federal's written proposal." Id.
In response to Federal's bid, a representative of Tompkins' purchasing department contacted Federal, advising them that their suggested price was in excess of the amount Tompkins had budgeted for the Division 15 work. Id. at ¶ 7. Subsequently, over a period of roughly two months, the parties engaged in negotiations regarding the price of the work, the scope of the work, and various other details. Id. at ¶ 8. Federal alleges that at the close of negotiations, Tompkins' purchasing manager, John G. Madden ("Madden"), made a firm offer for the performance of the agreed scope of work to start immediately at a price of $1,225,000. Id. Federal further alleges that its President, Robert Doffermyer, then responded with a counteroffer, stating that if Tompkins would"add $5,000 for all the grief of negotiations they would have a deal." Id. Federal asserts that Madden accepted that offer without qualification or reservation and that the parties"shook hands." Id. Tompkins, however, continues to contend that no contract was formed between the parties.
Subsequent to the events described above, Tompkins apparently listed Federal in its preprinted subcontractor transmittal form as its sprinkler subcontractor. Id. at ¶ 10; D. Mot. at Exhibit A. Thereafter, Tompkins submitted to Federal various documents concerning changes to the scope of the work to be performed by Federal. Complaint, ¶ 10. However, on March 27, 2002, Madden, on behalf of Tompkins, sent Federal a letter entitled"Letter of Intent," which failed to acknowledge that the parties had already entered into an enforceable contract for the performance of the Division 15 work. Id. at ¶ 11. Federal refused to sign the letter and continued to proceed with its work in reliance on the oral contract it believed to have entered into with Tompkins. Consequently, Tompkins sent a proposed written subcontract agreement to Federal that plaintiff contends did not accurately reflect the contract the parties had orally negotiated. Id. at ¶ 14-15.
District courts have original jurisdiction in cases where the amount in controversy exceeds the sum of $75,000 and the parties are citizens of different states. 28 U.S.C. § 1332(a)(1).*fn2 Both requirements must be met in order for a federal court to assume jurisdiction of the case. Diversity of the parties is uncontested. Thus,"the sum claimed by the plaintiff controls if the claim is apparently made in good faith." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). Additionally, dismissal is proper where it appears to a legal certainty that the claim is for less than the jurisdictional amount. Id.
There are three situations which clearly meet the legal certainty standard in order to defeat the court's subject matter jurisdiction: (1) when the terms of a contract limit the plaintiff's possible recovery; (2) when there is a substantive rule of law or measure of damages which limits the amount of money recoverable by the plaintiff; and (3) when there are independent facts which show that the amount of damages was claimed by the plaintiff merely to obtain federal court jurisdiction. 14B CHARLES A.WRIGHT & ARTHUR R. MILLER, FEDERALPRACTICE& PROCEDURE § 3702 (3rd ed. 1998). See e.g., Rosenboro v. Kim, 994 F.2d 13 (D.C. Cir. 1993)(applying the legal certainty test).
Furthermore, in an action based upon diversity jurisdiction, the federal courts must defer to state law, or in this case the law of the District of Columbia, in order to determine the nature and extent of the right plaintiff is seeking to enforce. Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 352-53 (1961); Kahal v. J.W. Wilson Assoc., Inc., 673 F.2d 547 (D.C. Cir. 1982). This includes applying the forum's laws on special and punitive damages. Wagshal v. Rigler, 947 F.Supp. 10 (D.D.C. 1996).
In the instant case, defendant first denies that any contract was formed between the parties and denies that any amounts are due to plaintiff. D. Mot. at 1. Alternatively, defendant argues that, assuming a contract did exist between the parties, plaintiff's claim is essentially a breach of contract action, disallowing the recovery of punitive damages, and thereby, limiting plaintiff's recovery to $65,000 in actual damages. Id. at 3-4. Moreover, plaintiff claims $315,000 in lost profits and unabsorbed overhead, which defendant contends is specifically excluded by the terms of the"proposed subcontract." Id.; Exhibit A at ¶¶ 7, 9.
Plaintiff, however, insists upon the existence of an oral contract that antedates the proposed subcontract. It is plaintiff's position that the contract between the parties was unjustly breached at a time when plaintiff was fully able to perform its part of the bargain and had been doing do for five months. Plaintiff's Response To Defendant's Motion To Dismiss For Lack Of Subject Matter Jurisdiction (With Points And Authorities) ("P.Opp.") at 5. Furthermore, plaintiff contends that"it is not crucial for jurisdictional purposes what the exact nature of such damages might be... [but] the total amount of damages set forth in the complaint." Id.
In its complaint, plaintiff asserts that the total damages incurred as a result of the alleged breach of contract are $380,000 and that punitive damages in the amount of $1 million should be assessed for conversion of property. Complaint, ¶¶ 26, 31. As stated in St. Paul Mercury, 303 U.S. 283 (1938),"the sum claimed by the plaintiff controls if the claim is apparently made in good faith." Id. at 288. However, the inability of plaintiff to recoup an amount sufficient to give the court jurisdiction does not demonstrate bad faith or"oust the jurisdiction." Id. at 289. Here, defendant has not asserted facts to ...