# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted April 21, 2015 *

Decided April 23, 2015

Before

WILLIAM J. BAUER, Circuit Judge

DIANE S. SYKES, Circuit Judge

J OHN DANIEL TINDER, Circuit Judge

No. 14-3766

ROBERT R. BANKS, Plaintiff-Appellant

,

v

.

PRESTON HUMPHREY, LLC, et al., Defendants-Appellees

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 13-cv-1336-JPG-PMF

J . Phil Gilbert, J udge

.

O R D E R

Robert Banks, a Louisiana prisoner, is suing Alok Kale, the court-appointed attorney who represented him in a 2003 drug prosecution. Along with Kale, Banks has
also sued Kale’s former law firm, Presto n Humphrey, LLC, and an unnamed insurance company. He brings only state-law claims—bre ach of fiduciary duty, constructive fraud, and fraudulent misrepresentation and conc ealment—and seeks damages. The district

* Two appellees were not served with proc ess in the district court and are not participating in this appeal. The third appell ee participated in the district court, but declined to participate in this appeal. Af ter examining the appellant’s brief and the record, we have concluded that oral argum ent is unnecessary. Thus the appeal is

submitted on the brief and the record. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 14-3766 Page 2

court dismissed Banks’s claims against Kale and the insurance company without prejudice for failure to serve, and dismissed the claims against Preston Humphrey with prejudice for failure to state a claim. We conc lude, however, that the district court lacked subject-matter jurisdiction because Bank s’s claims do not meet the amount in controversy required for diversity jurisdiction. See 28 U.S.C. § 1332.

Banks bases his claims on a form that Kale used to request from the court payment for representing Banks during the criminal proceedings. In seeking payment, Kale checked “yes” to the question, “[o]ther than from the court, have you, or to your knowledge has anyone else, received payment (compensation or anything of value) from any other source in connection with this repr esentation?” The criminal case ended with Banks pleading guilty to several counts of co nspiracy to distribute controlled substances. He was sentenced to 360 months’ imprisonme nt. Banks’s later petition under 28 U.S.C. § 2255, asserting that his counsel was ineffective, was denied, s ee Banks v. United States

, No. 08-CV-00063-JPG (S.D. Ill. 2009), as was hi s request for a certificate of appealabililty and his request for authorization to file a se cond or successive petition under 28 U.S.C. § 2244(b)(3)(A). See Banks v. United States , No. 09-1544 (7th Cir. 2009).

Nearly 10 years after Kale submitted his pa yment form, Banks filed this suit. He alleges that, by answering “yes” and saying nothing more, Kale failed to disclose from whom he was receiving compensation. Banks contends that Kale’s advice, which Banks accepted, to plead guilty was compromised by the undisclosed source of funds. Invoking only state law, he dema nds $40,000,000 in compensatory damages and $80,000,000 in punitive damages.

Preston Humphrey filed a motion to dism iss that, among other things, challenged Banks’s ability to satisfy the $75,000 amount-i n-controversy requirement for diversity jurisdiction. See 28 U.S.C. § 1332(a). Bypassing that argument, the district court dismissed Banks’s claims against Preston Hu mphrey for failure to state a claim. It explained that Banks had not articulated how Kale’s representation prejudiced him. The court dismissed Kale and the insurance comp any after Banks was unable to serve them. After the district court entered judgment, Ba nks filed a post-judgment motion that, in part, asked the district judge to recuse hi mself because he had granted the defendant’s motion to dismiss after it failed to comply strictly with the serv ice-of-process rules. Because Banks relied solely on the judge’s adve rse judicial rulings to support his request for recusal, the district court properly om itted any discussion of Banks’s request in denying the post-judgment motion. See Liteky v. United States , 510 U.S. 540, 555 (1994).No. 14-3766 Page 3

On appeal Banks raises three arguments. Firs t, he contends that the district judge should have recused himself because he had presided over Banks’s criminal case and approved the form that Kale submitted. Se cond, Banks asserts that the district court erred in granting the defendant’s motion to dismiss because the defendant failed properly to serve him with the motion. Fina lly, Banks insists that Kale was properly served with the complaint in the district court, and thus, the court should not have

dismissed him from the lawsuit.

We need not address Banks’s arguments, however, because this case does not fall within federal subject-matter jurisdiction. Jur isdiction is the first question in every

federal case. See Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541 (1986); Büchel-Ruegsegger v. Büchel , 576 F.3d 451, 453 (7th Cir. 2009). When Banks filed his complaint, he invoked diversity jurisdiction, see 28 U.S.C. § 1332, and Preston Humphrey challenged his allegation of the amount in co ntroversy. To answer that challenge, Banks may not rest on his complaint alone. See McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844–45 (7th Cir. 2009); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006). He “must come forward with comp etent proof that [he has] satisfied the jurisdictional threshold and not simply point to the theoretical possibility of recovery for certain categories of damages.” McMillian, 567 F.3d at 845. But when Banks responded to Preston Humphrey’s motion to dismiss, he sa id only that he “contests” the defendant’s challenge to the jurisdictional threshold and that a jury should decide it. He offered no reason to believe that he could satisfy it.

This omission is both fatal and understa ndable. As a matter of law Banks may not recover any damages in this suit for a wron gful conviction. Because Banks did not pay Kale to represent him, the only plausibl e damages to Banks from Kale’s allegedly compromised advice to plead guilty would be for the time that Banks has been wrongly

incarcerated. See Lafler v. Cooper , 132 S. Ct. 1376, 1384–85 (2012) (reiterating that two-part Strickland v. Washington test for ineffective assistance applies to representation during plea negotiations and prejudice is shown when there is reasonable probability that defendant would not have pleaded guilty but for counsel’s errors); Hill v. Lockhart , 474 U.S. 52, 56–67 (1985) (explaining that defendant ca n assert ineffective assistance to attack guilty plea as involuntary where he relied on advice of counsel that fell below objective “range of competence”). But his conviction is intact. Therefore Heck v. Humphrey , 512 U.S. 477 (1994), eliminates the possibility of dama ges for a wrongful conviction because prevailing on that claim would necessarily im ply the invalidity of an intact conviction.

Id. at 486–87; see Northfield Ins. Co. v. City of Waukegan , 701 F.3d 1124, 1133 (7th Cir. 2012).No. 14-3766 Page 4

We have considered whether Banks has asserted any claims that avoid Heck and satisfy the amount-in-controversy requirement

. He has not articulated any, and we cannot see any in his complaint. Even if he did not contest the validity of his conviction or seek actual damages arising from it, an d pursued only punitive damages for Kale’s alleged failure to disclose the source of third-party funds, Banks could not meet the amount-in-controversy threshold. Punitive damages are not available under Illinois law for legal malpractice unless the attorney’s omission was intentional. See 735 ILCS
5/2-1115 ; Scott v. Chuhak & Tecson, P.C. , 725 F.3d 772, 783–84 (7th Cir. 2013); Cripe v. Leiter

, 683 N.E.2d 516, 518–19 (Ill. App. Ct. 1997). And Banks has not alleged that Kale intended to conceal information from Banks. He allege s only that Kale “failed to disclose” his receipt of third-party funds. He uses labels like “fraud,” but legal conclusions are not sufficient without a general allegation of intent, see F ED

. R. C IV

. P. 9(b), and Banks raises none. Accordingly Banks’s comp laint suggests at most only a breach of professional duty, not intentional misconduct, necessarily eliminating the theoretical possibility of punitive damages to satisfy the am ount-in-controversy requirement.

Accordingly, we AFFIRM the judgment of the distri ct court but we MODIFY the judgment so that all of Banks’s clai ms are dismissed without prejudice.