* After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and the record. F ED

. R. A PP

. P.

34(a)(2). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 12, 2009 *

Decided January 27, 2010

Before

JOHN L. COFFEY, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 09

‐ 2311

ROBERT DAVIS,

Plaintiff

‐ Appellant

,

v.

L E CLAIR RYAN, P.C.,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 08 C 6425

John W. Darrah,

Judge

.

O R D E R

Plaintiff Robert Davis, a Vietnam veteran, was denied a claim for service

‐ connected

disability benefits by the Department of Veterans Affairs and retained Attorney Daniel

Krasengor from the law firm LeClair Ryan P.C. (“LeClair”) (formerly Wright, Robinson,

Osthimer & Tatum) to assist him in challenging the denial of his claim. Davis was

dissatisfied with the lawyer’s handling of his claim and filed suit against the law firm. The

district court dismissed the complaint for lack of subject

‐ matter jurisdiction and also ruled

that Davis had failed to state a claim. We affirm. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 2311 Page 2

Davis is a Vietnam veteran

, as previously stated, who served in active military

service from 1961 until 1965 when he was honorably discharged. In 1991 he was diagnosed

with Post Traumatic Stress Disorder and applied for service

‐ connected disability benefits

two years later in 1993. From 1993 to 2002, Davis represented himself in a number of

proceedings before the Department of Veteran Affairs (“DVA”), the Board of Veteran

Appeals (“BVA”), and the U.S. Court of Appeals for Veterans Claims (“CAVC”) where his

claim was initially denied but thereafter was eventually remanded back to the DVA on

appeal.

Davis retained Krasnegor in 2002 to represent him at the remanded hearing but his

claim was again denied by the DVA in 2004 and also denied by the BVA in 2006. While the

appeal before the CAVC was pending

, Davis requested that Krasnegor file a waiver (order)

to bar Judge Kennedy, a BVA judge who had twice previously denied his claim, from

serving on any future panel that decided Davis’s request for benefits if the CAVC remanded

the case (which it did in 2007). Krasengor responded to this request by informing Davis

that it was his legal opinion that he could not make such a request unless Judge Kennedy

had committed some extreme impropriety. Following the CAVC remand, Davis and

Krasnegor entered into a contingency fee agreement where Davis agreed to pay the law firm

20% of any benefits awarded less any fees paid to the firm under the Equal Access to Justice

Act (“EAJA”), 28 U.S.C. § 2412. Shortly after signing the contingency fee agreement, Davis

requested that Krasnegor file a waiver to prevent his claim from being remanded back to

the DVA. No waiver was ever filed and on September 30, 2007, the case was again

remanded to the DVA. Davis then terminated the contract with the law firm on October 1,

2007. Thereafter, on October 2, 2007, LeClair filed an attorney’s lien for 20% of any future

benefits if granted and informed Davis that it would refund him for any legal fees that had

already been paid under the EAJA. Davis was finally granted benefits on August 7, 2008,

with Judge Kennedy on the panel, and LeClair’s lien on those benefits was $20,646. LeClair

received $18,142 in EAJA fees but asserts that it has not received any amount from the

awarded benefits or by Davis directly, and claims that it is still owed roughly $2,500.

When Davis filed this complaint in November 2008, he invoked diversity

jurisdiction, 28 U.S.C. § 1332, claiming that LeClair had caused him “pecuniary and

emotional damages” resulting from what he alleges to be legal malpractice, breach of

contract/fiduciary duty, and intentional infliction of emotional distress when Krasegnor

failed to file a request that Judge Kennedy be disqualified from serving on the panel that

decided Davis’ claim for benefits. The court granted LeClair’s motion to dismiss for lack of

subject matter jurisdiction concluding that Davis had failed to satisfy the $75,000 amount in

controversy requirement for diversity jurisdiction. See 28 U.S.C. § 1332(a). On appeal,

Davis argues that the trial court made a number of errors, both legal and factual.No. 09

‐ 2311 Page 3

When the defendant (LeClair) challenges the plaintiff’s allegation of the amount in

controversy, the plaintiff cannot merely rest on his complaint alone but must establish that

he has satisfied the jurisdictional threshold by a preponderance of the evidence. 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). To satisfy the amount in controversy

requirement, the plaintiff “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.

In this case, LeClair contested the amount in controversy asserting that the dispute is

limited to $2,500, the amount LeClair claims that Davis still owes above what the EAJA

already has paid. Since LeClair contested the amount in controversy, Davis was required to

establish how his claims fulfilled the jurisdictional threshold. On appeal Davis responds

that LeClair wrongfully received the $18,142 in EAJA fees and repeats the same arguments

he made in his complaint. But Davis’ complaint lacks “competent proof” that he could

prove damages for legal malpractice, breach of contract/fiduciary duty, and intentional

infliction of emotional distress that would satisfy the jurisdictional threshold. See

McMillian

, 567 F.3d at 845. Without question Davis obtained benefits with LeClair’s

assistance but the plaintiff has failed to demonstrate how his benefits were either reduced or

delayed by the law firm’s faulty representation. Further, he has failed to provide evidence

to substantiate his damages claim and relies upon only speculation that he can meet the

jurisdictional threshold. Since Davis failed to offer evidence to satisfy the jurisdictional

threshold, we are convinced that the district judge properly determined that it lacked

subject

‐ matter jurisdiction to address Davis’s claims and because we have found that the

district court lacked subject

‐ matter jurisdiction, we need not address LeClair’s alternative

argument that Davis’s complaint fails to state a claim.

AFFIRMED.