NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-3830

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DAVID C. ONYIUKE,

Appellant

v.

CHEAP TICKETS, INC.; VIRGIN ATLANTIC LTD.

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 09-cv-00891)

District Judge: Honorable Katharine S. Hayden

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Submitted Pursuant to Third Circuit LAR 34.1(a)

July 1, 2011

Before: SLOVITER, FISHER and WEIS, Circuit Judges

(Opinion filed July 5, 2011)

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OPINION

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PER CURIAM.

Appellant David C. Onyiuke, proceeding pro se, appeals from the orders of 

the United States District Court for the District of New Jersey dismissing his complaint 

for lack of subject matter jurisdiction and denying his motion for reconsideration. For the 

reasons that follow, we will affirm the orders of the District Court.
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I.

In April 2009, Onyiuke filed an amended complaint against Virgin Atlantic 

Ltd. (“Virgin Atlantic”) and Trip Network, Inc. d/b/a Cheaptickets.com (“Cheaptickets”), 

alleging breach of contract, breach of the covenant of good faith and fair dealing, and 

conversion, arising from the cancellation of service between Newark Liberty 

International Airport and Gatwick Airport in London, England. 

In August 2008, Onyiuke purchased plane tickets through the online travel 

site Cheaptickets.com. Under to the flight arrangement, he was scheduled to fly from 

Newark to London on December 12, 2008 on a plane owned and operated by Continental 

Airlines, which undertakes certain flight obligations from Virgin Atlantic. Onyiuke was 

then scheduled to fly – via Virgin Nigeria Airlines – to Lagos, Nigeria, his final 

destination. Under the arrangement, Onyiuke would embark on a return flight to New 

Jersey on January 12, 2009. He paid a total of $1,563.70 for the tickets.

On or about November 7, 2008, Continental Airlines discontinued service 

between Newark and Gatwick Airport. Cheaptickets notified Onyiuke about this change 

in service on December 3, 2008 and offered a modified flight arrangement whereby 

Onyiuke would have to provide his own transportation from Heathrow Airport to 

Gatwick Airport in order to catch his connecting flight to Nigeria. Alternatively, 

Cheaptickets offered to refund the full cost of his flight. Onyiuke refused to accept either 

alternative.
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The following day, Onyiuke contacted Cheaptickets customer service and 

was again offered a refund. After refusing to accept Cheaptickets’ refund offer for a third 

time, Onyiuke booked his flights with a different travel agency for $3,163.29 and 

initiated suit against Cheaptickets and Virgin Atlantic. 

The Defendants moved to dismiss the amended complaint pursuant to Rule 

12(b)(1) of the Federal Rules of Civil Procedure on the grounds that the District Court 

lacked subject matter jurisdiction over Onyiuke’s claims because the amended complaint 

failed to satisfy the amount of money in controversy required under 28 U.S.C. § 1332. 

The Court granted the motions, concluding that the amount in controversy did not meet 

the minimum jurisdictional amount. Onyiuke filed a motion for reconsideration, which 

the District Court denied. Onyiuke appeals.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We 

review a District Court’s determination of its jurisdiction de novo. See Emerald Investors 

Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 197 (3d Cir. 2007). To the extent that 

a District Court makes factual findings in determining jurisdiction, we review for clear 

error. Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998). 

We will not disturb the factual findings of the District Court unless we are “left with the 

definite and firm conviction that a mistake has been committed” in the District Court’s 

fact-finding. Frett-Smith v. Vanterpool, 511 F.3d 396, 399 (3d Cir. 2008) (citation 
4

omitted).

Diversity jurisdiction requires that the controversy be between citizens of 

different states, and that the amount in controversy exceed $75,000. See 28 U.S.C. §

1332(a)(1). Whether diversity jurisdiction exists is determined by examining “the facts 

as they exist when the complaint is filed.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 

U.S. 826, 830 (1989); Grand Union Supermarkets of the V.I., Inc. v. H.E. Lockhart 

Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003). 

In determining whether the amount in controversy exceeds $75,000, the 

Court generally accepts the plaintiff’s good faith allegations. Columbia Gas 

Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995). However, the case may 

be dismissed for failure to meet the amount in controversy requirement if it appears to a 

“legal certainty” that the claim is for less than the jurisdictional amount. St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); Dardovitch v. Haltzman, 

190 F.3d 125, 135 (3d Cir. 1999). It necessarily follows that whether the claims are for 

less than the jurisdictional amount depends on what damages a plaintiff could 

conceivably recover under state law. Suber v. Chrysler Corp., 104 F.3d 578, 584 (3d Cir. 

1997). When punitive damages are recoverable, they are properly considered in 

determining whether the jurisdictional amount has been satisfied, see Packard v. 

Provident Nat’l Bank, 994 F.2d 1039, 1046 (3d Cir. 1993), but when a claim for punitive 

damages is frivolous, “such damages are unavailable as a matter of law” and “that claim 

must be stricken from the amount in controversy,” id. 
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Onyiuke sought identical damages of $127,793.57 from each defendant, a 

sum composed of nominal, actual, and special contract damages; punitive damages; 

damages for mental agony; and litigation expenses. Notably, of the $127,793.57 that 

Onyiuke sought from each Defendant, he allotted more than $87,000 to his conversion 

claim (with $80,000 representing punitive damages), and more than $40,000 to his breach 

of contract claim (with $25,000 representing his mental agony damages). After 

reviewing the record, we conclude that the District Court did not err in determining that 

the amount in controversy did not satisfy the jurisdictional requirement. 

First, assuming that punitive damages are recoverable in New Jersey for the 

tort claim of conversion, such damages may only be awarded if a plaintiff demonstrates

by “clear and convincing evidence, that the harm [he] suffered was the result of the 

defendant’s acts or omissions, and [that] such acts or omissions were actuated by actual 

malice or accompanied by a wanton and willful disregard of persons who foreseeably 

might be harmed by those acts or omissions.” See N.J. Stat. Ann. § 2A:15-5.12(a).1 

We agree with the District Court that Onyiuke failed to allege facts 

sufficient to demonstrate that the Defendants acted with the requisite malice or willful 

disregard to justify his demand for punitive damages arising from the alleged conversion 

 

1

 Actual malice is defined as “an intentional wrongdoing in the sense of an evil-minded 

act.” N.J. Stat. Ann. § 2A:15-5.10. Furthermore, wanton and willful disregard is a 

“deliberate act or omission with knowledge of a high degree of probability of harm to 

another and reckless indifference to the consequences of such act or omission.” Id.
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of $1,563.70. As the District Court noted, Onyiuke’s claims arise from his dissatisfaction 

with the changes to his itinerary, the refund policy in place, and the unwillingness of the 

Defendants to meet his demands. Such allegations do not support a claim for punitive 

damages as defined under the statute.

We now turn to Onyiuke’s request for damages of $25,000 from each 

Defendant for mental agony arising from the alleged breach of contract. Contrary to 

Onyiuke’s assertion, the District Court applied the correct legal standard to evaluate his 

claim. The Court correctly observed that, under New Jersey law, a plaintiff may recover 

for emotional distress damages resulting from a breach of contract where the breach was 

“both intentional and outrageous and proximately cause[d] severe, foreseeable emotional 

distress.” See Picogna v. Bd. of Educ., 671 A.2d 1035, 1037 (N.J. 1996). The “conduct 

must be so outrageous in character, and so extreme in degree, as to go beyond all possible 

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized 

community.” Buckley v. Trenton Saving Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988) 

(quoting Restatement (Second) of Torts, § 46).

We agree that Onyiuke failed to allege intentional conduct on the part of the 

Defendants so outrageous as to cause emotional distress. Although Onyiuke was 

undoubtedly inconvenienced by the cancellation of his flight, “complaints [that] amount 

to nothing more than aggravation, embarrassment, an unspecified number of headaches, 

and loss of sleep” do not amount to severe emotional distress. Id. at 864. Indeed, 

Onyiuke ultimately traveled to Nigeria as planned and also declined Defendants’ offer to 
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reimburse him for the cost of his alternate travel arrangements.

Without the demands for punitive damages and damages for mental agony, 

the amount in controversy does not meet the threshold amount for diversity jurisdiction. 

Thus, we find no error in the District Court’s decision to dismiss the amended complaint 

for lack of jurisdiction. In addition, we discern no abuse of discretion in the District 

Court’s denial of Onyiuke’s motion for reconsideration. Onyiuke did not demonstrate 

any basis for granting the motion, such as intervening change in controlling law, new 

evidence, or the need to correct clear error of law or fact or prevent manifest injustice. 

See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010). 

For the foregoing reasons, we will affirm the orders of the District Court.