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 

JOHN 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, 

Judge. 

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, Preston Humphrey, LLC, and an unnamed insurance 

company. He brings only state-law claims—breach of fiduciary duty, constructive fraud, 

and fraudulent misrepresentation and concealment—and seeks damages. The district 

 

*

 Two appellees were not served with process in the district court and are not 

participating in this appeal. The third appellee participated in the district court, but 

declined to participate in this appeal. After examining the appellant’s brief and the 

record, we have concluded that oral argument is unnecessary. Thus the appeal is 

submitted on the brief and the record. See FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 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 conclude, however, that the district court lacked 

subject-matter jurisdiction because Banks’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 representation?” The criminal case ended with 

Banks pleading guilty to several counts of conspiracy to distribute controlled substances. 

He was sentenced to 360 months’ imprisonment. Banks’s later petition under 28 U.S.C. 

§ 2255, asserting that his counsel was ineffective, was denied, see Banks v. United States, 

No. 08-CV-00063-JPG (S.D. Ill. 2009), as was his request for a certificate of appealabililty 

and his request for authorization to file a second 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 payment 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 demands $40,000,000 in compensatory damages and 

$80,000,000 in punitive damages. 

Preston Humphrey filed a motion to dismiss that, among other things, challenged 

Banks’s ability to satisfy the $75,000 amount-in-controversy requirement for diversity 

jurisdiction. See 28 U.S.C. § 1332(a). Bypassing that argument, the district court 

dismissed Banks’s claims against Preston Humphrey 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 company after Banks was unable to serve them. 

After the district court entered judgment, Banks filed a post-judgment motion that, in 

part, asked the district judge to recuse himself because he had granted the defendant’s 

motion to dismiss after it failed to comply strictly with the service-of-process rules. 

Because Banks relied solely on the judge’s adverse judicial rulings to support his request 

for recusal, the district court properly omitted 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. First, 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. Second, 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. Finally, 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. Jurisdiction 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 controversy. 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 competent 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 said 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 understandable. As a matter of law Banks may not 

recover any damages in this suit for a wrongful conviction. Because Banks did not pay 

Kale to represent him, the only plausible 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 can 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 damages for a wrongful conviction because 

prevailing on that claim would necessarily imply 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, and 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 alleges 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 FED. R. CIV. P. 9(b), and Banks raises 

none. Accordingly Banks’s complaint suggests at most only a breach of professional 

duty, not intentional misconduct, necessarily eliminating the theoretical possibility of 

punitive damages to satisfy the amount-in-controversy requirement. 

Accordingly, we AFFIRM the judgment of the district court but we MODIFY the 

judgment so that all of Banks’s claims are dismissed without prejudice.