NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 3830

___________ 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

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

July 1, 201 1 Before: SLOVITER, FISHER and WEIS , Circuit Judges

( Opinion filed July 5, 2011 )

___________ OPINION

___________ PER CURIAM

.

Appellant David C. Onyiuke , proceeding pro se, appeals from the orders of the United States District Court fo r 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.2 I. In April 2009, Onyiuke filed an am ended 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 cancellati on 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 fl y 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 Air lines discontinued service between Newark and Gatwick Airp ort. Cheaptickets notified Onyiuke about this change in service on December 3, 2008 and offered a modified flight arrangem ent whereby Onyiuke would have to provide his own transportation from Heath row 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.3 The following day , Onyiuke contacted Cheaptick ets 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
fail ed 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

t he 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 , 49 2 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 factu al findings of th e District Court unless we are “ left with the definite and firm conviction th at a mistake has been committed” in the District Court’s
fact

- finding. Frett

- Smith v. Vanterpool , 511 F.3d 396, 399 (3d Cir. 2008) (citation4

omitted)

. Diversit y jurisdiction requires that the controversy be between citizens of different states, and that the amount in controv ersy exceed $75,000. See 28 U.S.C. § 1332(a)(1). Whether diversity jurisdiction exi sts is determined by examining “ the facts as they exis t 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
C ourt generally accepts the plai ntiff’s good faith allegations. Columbia Gas Transmission Corp. v. Tarbuck , 6 2 F.3d 538, 541 (3d Cir. 1995). However, the case may be dismissed for failure to meet the amount in controversy requi remen t 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 sta te law. Suber v. Chrysler Corp. , 104 F.3d 578, 584 (3d Cir. 1997). When punitive damages are recoverable, they are prope rly 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 la w” and “that claim must be stricken from the amount in controversy,” id.5 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 ago ny; and litigation expenses. Notably, of the $127,793.57 that Onyi uke 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 (wi th $25,000 representing his mental agony damages). After reviewing the record, we conclude that t he 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 [th at] such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be har med by those acts or omissions.” See N.J. Stat. Ann. § 2A: 1 5

- 5 .12(a). 1

We agree with the District Court t hat 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. Further more , wanton and willful disreg ard 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

.6

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
cla im. 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 emot ional 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 intoler able in a civilized community. ” Buckley v. Trent on 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 to7

reimburse him for the cost of his alternate travel arrangements.

Without the demands for punitive damages an d damages for mental agony , the amount in controversy does not meet the threshold amount for diversity jurisdiction. Thus, we find no error in the Distric t Court’s decision to dismiss the amended complaint
for lack of jurisdiction. In addition, we discer n 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 6 66, 669 (3d Cir. 2010).

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