UnitedStates Court of Appeals

For the First Circuit

No. 11-1373

SALAH ABDEL-ALEEM,

Plaintiff, Appellant,

v.

OPK BIOTECH LLC, et al.

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard Stearns, U.S. District Judge]

Before

Boudin, Stahl, and Thompson, Circuit Judges.

Mohamad Saleh Ahmad and Yussuf Abdel-Aleem, on brief for

appellant.

Michael S. Rabieh, Lichten & Liss-Riordon, P.C., on brief for

appellee.

January 13, 2012
STAHL, Circuit Judge. Salah Abdel-Aleem (Abdel-Aleem)

was the defendant in a Massachusetts state court lawsuit prosecuted

by OPK Biotech LLC. Alleging Massachusetts state law claims of

abuse of process and intentional and negligent infliction of

emotional distress as a result of that suit, Abdel-Aleem brought an

action claiming diversity jurisdiction against OPK Biotech LLC, its

CEO, Zafiris Zafirelis, and its registered manager, Alexander

Pugachev (collectively, OPK) in federal district court. The 1

district court dismissed the complaint for lack of subject matter

jurisdiction, holding that Abdel-Aleem had failed to adequately

allege the minimum amount in controversy. We affirm.

I. Facts & Background

On January 1, 2005, Abdel-Aleem began consulting for

Biopure Corporation (Biopure). On August 1, 2005, Abdel-Aleem and

Biopure executed an Employment Agreement Concerning the Protection

of Company Property and the Arbitration of Legal Disputes

(Employment Agreement). The Employment Agreement included a

provision prohibiting Abdel-Aleem from disclosing confidential or

proprietary information to third parties, as well as a noncompetition covenant effective during his employment with Biopure

and for two years thereafter. On July 28, 2006, after what AbdelAbdel-Aleem is also suing Does 1-10, "unknown natural 1

persons who are responsible for [his] damages."

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Aleem characterizes as "fundamental differences" with Biopure's

CEO, Abdel-Aleem left the company.

Beginning in January 2007, Abdel-Aleem began consulting

for IKOR Life Sciences (IKOR). On June 29, 2007, Biopure filed

suit against Abdel-Aleem in Massachusetts state court, alleging

that in his work for IKOR, Abdel-Aleem had breached the Employment

Agreement's confidentiality provision and its non-competition

covenant. On February 12, 2008, the state court entered a

2

protective order limiting the use of material obtained through

discovery containing confidential information or trade secrets of

the plaintiff, defendant, and third parties.

Biopure filed for Chapter 11 bankruptcy in July 2009, and

in September 2009, sold its assets to OPK, including its interest

in the suit against Abdel-Aleem. On March 8, 2010, before OPK

moved to substitute itself as plaintiff, the state court dismissed

Biopure's complaint without prejudice for failure to prosecute.3

Over the course of several months beginning in June 2010, OPK and

Abdel-Aleem attempted to forge an agreement in which OPK offered to

release the claims against Abdel-Aleem in exchange for any material

that he had produced during discovery that was subject to the

The suit also included claims under Massachusetts law for

2

misappropriation of trade secrets and business information.

At around the same time, in March 2010, Abdel-Aleem was

3

diagnosed with Parkinson's disease and has since experienced a

deterioration in his health.

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protective order. In turn, Abdel-Aleem requested indemnification

against any potential lawsuit brought against him by IKOR. OPK

refused to so indemnify, and when the parties were unable to come

to an agreement, OPK moved to substitute itself for Biopure, and

Biopure moved to vacate the judgment of dismissal. The state court

granted both motions on February 25, 2011. On March 7, 2011,

Abdel-Aleem moved for summary judgment in the state court action.4

The next day, March 8, 2011, Abdel-Aleem filed a

complaint (First Complaint) in the United States District Court for

the District of Massachusetts, alleging that OPK's prosecution of

the state court suit against him constituted an abuse of process

under Massachusetts state law. The suit also sought to enjoin the

state court proceedings. Abdel-Aleem claimed diversity

jurisdiction. In describing his damages in his First Complaint, 5

Abdel-Aleem stated that "the amount of [sic] controversy exceeds,

exclusive of interest and costs, the amount of ($75,000), pursuant

to 28 U.S.C. § 1332," that, as a result of OPK's allegedly tortious

actions, "[d]amages have resulted including emotional distress,"

On July 28, 2011, the state court granted summary judgment 4

to Abdel-Aleem, which OPK did not oppose. However, the state

court, after hearing from OPK's counsel, denied Abdel-Aleem's

motion for attorney's fees and costs, finding that neither Biopure

nor OPK had prosecuted the suit in bad faith and that their claims

were neither insubstantial nor frivolous.

Because the issue of the minimum amount in controversy under 5

28 U.S.C. § 1332 is dispositive, we do not reach or discuss

diversity of citizenship. 

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and that Abdel-Aleem "ha[d] suffered damage, loss and harm,

including but not limited to his reputation, his emotional

tranquility, and privacy."

On March 28, 2011, OPK moved to dismiss Abdel-Aleem's

complaint. OPK first argued that Abdel-Aleem had failed to state

a claim upon which relief could be granted pursuant to Federal Rule

of Civil Procedure 12(b)(6), as OPK had never caused process to

issue against him and thus could not be liable for abuse of

process. Second, OPK argued Abdel-Aleem's complaint must be

dismissed for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1) because Abdel-Aleem had not

sufficiently supported his allegation that the amount in

controversy was over $75,000, the jurisdictional minimum under

28 U.S.C. § 1332.

Thereafter, Abdel-Aleem filed an amended complaint

(Amended Complaint) on April 5, 2011, reiterating the claim for

abuse of process and adding claims for intentional and negligent

infliction of emotional distress. This time, Abdel-Aleem alleged

that the amount in controversy was "at least $1,000,000." AbdelAleem continued to generally allege "emotional distress." For his

abuse of process claim, Abdel-Aleem again described his damages as

"loss and harm, including but not limited to his reputation, his

emotional tranquility, and privacy." He alleged that his damages

resulting from the intentional infliction of emotional distress

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claim were that OPK's conduct "caused him to lose his job, spend

thousands of dollars in legal fees, and endure enormous amounts of

physical and mental anguish." Abdel-Aleem further alleged that

"[n]o reasonable individual could endure the physical and mental

stress that Defendants have inflicted upon [him]." For the

negligent infliction of emotional distress claim, he alleged

"continued suffering of physical and emotional distress," that

"[a]ny reasonable person subject to Defendants' tortious behavior

would have suffered both physical and mental anguish as a result of

Defendants' actions," and that OPK's conduct caused him to "suffer

by forcing him to choose between two daunting alternatives":

defending against the "frivolous" lawsuit or releasing confidential

information.

After considering the Amended Complaint, the district

court granted OPK's motion to dismiss, holding that Abdel-Aleem 6

had not "set forth sufficient facts to show that the amount in

controversy exceeds the jurisdictional threshold established by

28 U.S.C. § 1332(a)." Abdel-Aleem v. OPK Biotech LLC,

No. 11-10397-RGS, 2011 WL 1304642, at *1 (D. Mass. Apr. 6, 2011). 

Abdel-Aleem timely appealed.

In allowing the motion to dismiss, the district court held 6

that Abdel-Aleem's request for an injunction was moot. Abdel-Aleem

v. OPK Biotech LLC, No. 11-10397-RGS, 2011 WL 1304642, at *1

(D. Mass. Apr. 6, 2011).

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II. Discussion

We review de novo a district court's dismissal for lack

of subject matter jurisdiction. Stewart v. Tupperware Corp., 356

F.3d 335, 337 (1st Cir. 2004). Abdel-Aleem attempts to establish

the district court's original jurisdiction under a diversity

theory, as the federal "district courts shall have original

jurisdiction of all civil actions where the matter in controversy

exceeds the sum or value of $75,000, exclusive of interest and

costs, and is between . . . citizens of different states."

28 U.S.C. § 1332(a)(1).

The federal plaintiff carries the burden to establish

that the minimum amount in controversy has been met. Stewart, 356

F.3d at 338. "[T]he sum claimed by the plaintiff controls if the

claim is apparently made in good faith. It must appear to a legal

certainty that the claim is really for less than the jurisdictional

amount to justify dismissal." Id. at 338 (quoting St. Paul Mercury

Indem. Co. v. Red Cab Co., 303 U.S. 282, 288-89 (1938)). Good

faith is measured objectively; "[t]he question . . . is whether to

anyone familiar with the applicable law this claim could

objectively have been viewed as worth" more than the jurisdictional

minimum. Coventry Sewage Assoc. v. Dworkin Realty Co., 71 F.3d 1,

6 (1st Cir. 1995) (quoting Jiminez Puig v. Avis Rent-a-Car Sys.,

574 F.2d 37, 40 (1st Cir. 1978)).

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A plaintiff's "'general allegation of damages that meet

the amount requirement suffices unless questioned by the opposing

party or the court.'" Stewart, 356 F.3d at 338 (quoting Spielman

v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001)). However, once

the opposing party has questioned the amount, "'the party seeking

to invoke jurisdiction has the burden of alleging with sufficient

particularity facts indicating that it is not a legal certainty

that the claim involves less than the jurisdictional amount.'" Id.

(quoting Spielman, 251 F.3d at 5). This burden may be met by

amending pleadings or submitting affidavits. Dep't of

Recreation & Sports of P.R. v. World Boxing Ass'n, 942 F.2d 84, 88

(1st Cir. 1991).

Here, OPK has challenged Abdel-Aleem's assertion of the

amount in controversy. Thus, the burden has shifted to him to

allege with "sufficient particularity" facts that in some way

support the contention that there is more than $75,000 at stake. 

See id. at 90 (holding that the proponent of diversity jurisdiction

has the "burden of supplying specific factual allegations to

support the amount in controversy requirement"). In his First

Complaint, Abdel-Aleem stated no amount in controversy, alleging

only that it was in excess of the minimum, and gave only the most

general description of his damages. Even though Abdel-Aleem was 7

Abdel-Aleem alleged that "[d]amages have resulted including 7

emotional distress" and that he "ha[d] suffered damage, loss and

harm, including but not limited to his reputation, his emotional

-8-
warned of OPK's opposition by its Rule 12(b)(1) motion to dismiss,

he added only further generalizations to the description of his

damages in the Amended Complaint, which did not provide any 8

specifics or basis for the alleged amount in controversy. See

Diefenthal v. Civil Aeronautics Bd., 681 F.2d 1039, 1053 (5th Cir.

1982) (where "party invoking the court's jurisdiction" was "put on

notice . . . by [the defendant's] motion to dismiss for lack of

jurisdiction, that they needed to show some basis for the amount of

damages they claimed," failure to do so resulted in proper

dismissal by the district court).

Abdel-Aleem provided no substantiation for or valuation

of any of the economic, emotional or physical damages he alleged in

his Amended Complaint. In particular, though Abdel-Aleem alleged

that the filing of the state court lawsuit caused him to lose his

job, he set forth no facts in support of this claim. Indeed, not

only did Abdel-Aleem offer no lost wages valuation, he did not even

indicate what job he lost or the circumstances surrounding the

loss. Similarly, Abdel-Aleem did nothing to substantiate his claim

tranquility, and privacy."

In his Amended Complaint, Abdel-Aleem repeated the

8

description of damages for his abuse of process claim from the

First Complaint, and added that OPK's alleged intentional

infliction of emotional distress "caused him to lose his job, spend

thousands of dollars in legal fees, and endure enormous amounts of

physical and mental anguish," which "[n]o reasonable individual

could endure." and that their negligent infliction of emotional

distress caused "continued suffering of physical and emotional

distress."

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for legal fees. While attorney's fees are normally excluded from

an amount in controversy determination absent a statute or contract

providing for such fees, see Spielman, 251 F.3d at 7, fees for

defending the underlying lawsuit in a Massachusetts abuse of

process action are considered compensatory damages and not

attorney's fees, see Millennium Equity Holdings, LLC v. Mahlowitz,

925 N.E.2d 513, 528 (Mass. 2010). Thus, Abdel-Aleem's claim for

legal fees is part of our amount in controversy analysis. That

being said, he gave us nothing to go on other then to say that he

spent "thousands of dollars." This does not qualify as sufficient

particularity. See, e.g., Dep't of Recreation, 942 F.2d at 90 9

(finding that because plaintiff failed to include an estimate of

attorney's fees on the record, there was no basis for the court to

conclude that the amount in controversy requirement had been met). 

As for Abdel-Aleem's claims of physical and mental anguish, he

speaks only in general terms (mainly parroting the elements of the

torts he alleges) and offers no particulars, either facts or

numbers, from which we can glean that there is more than $75,000 at

stake. 

Abdel-Aleem's lack of substantiation contrasts with our

cases upholding diversity jurisdiction on the basis of the minimum

We do not go so far as to say that a plaintiff, responding

9

to a challenge to the amount in controversy, must always set forth

the specific amount of attorney's fees claimed. However, based on

the facts at hand, the phrase "thousands of dollars" (which denotes

a vast range of amounts) is not sufficient. 

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amount in controversy. See, e.g., Stewart, 356 F.3d at 338 (in

response to defendant's challenge to amount in controversy,

plaintiffs met burden by supplying written interrogatories and

multiple medical reports describing and documenting injuries);

Hardemon v. City of Boston, 144 F.3d 24, 26 (1st Cir. 1998) (amount

in controversy was sufficiently established based on affidavit

attached to amended complaint itemizing lost wages and other

damages claimed). While we do not suggest that Stewart and

Hardemon set the minimum standard for establishing the amount in

controversy when it is challenged, we expect something more than

bald statements and round numbers.

Abdel-Aleem's amendment adding "at least $1,000,000" as

the alleged amount in controversy, which the district court

described as "what appears to be an imaginary number," does not

help him meet his burden. Abdel-Aleem, 2011 WL 1304642, at *1 n.1. 

While we must "give due credit to the good faith claims of the

plaintiff, a court would be remiss in its obligation if it accepted

every claim of damages at face value . . . . Jurisdiction is not

conferred by the stroke of a lawyer's pen. When challenged, it

must be adequately founded in fact." Diefenthal, 681 F.2d at 1052. 

Here, Abdel-Aleem has not provided any facts or substantiation to

show with sufficient particularity that his case is worth more than

$75,000, let alone the claimed $1,000,000. See Dep't of

Recreation, 942 F.2d at 90 (where no specific factual allegations

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were provided, the record did not show "that there [was] any amount

in controversy . . . , much less one in excess of the . . .

threshold").

Even if Abdel-Aleem had provided facts supporting his

claimed amount in controversy with sufficient particularity, he

could not meet the objective good faith standard, under which he

must show that "to anyone familiar with the applicable law this

claim could objectively have been viewed as worth" more than the

jurisdictional minimum. Coventry Sewage, 71 F.3d at 6. Though

Abdel-Aleem provides no details substantiating the value of his own

claim, he attempts to establish that his claimed amount in

controversy is made in objective good faith based on comparison to

other similar claims. However, no case Abdel-Aleem cites is

similar to his, and many of his cited cases stand for a proposition

contrary to his description. 

While "'federal courts must . . . look to state law to

determine the nature and extent of the right to be enforced in a

diversity case,'" Stewart, 356 F.3d at 339 (quoting Horton v.

Liberty Mut. Ins. Co., 367 U.S. 348, 352-53 (1961)), the cases

Abdel-Aleem cites have nothing to do with the extent of damages

awarded in similar cases, and do not help us determine the extent

or value of his rights. Some cases Abdel-Aleem cites are

procedurally dissimilar and do not involve any calculation of

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damages. Other cases he cites resemble OPK's state claim against 10

him, and may define the extent of OPK's right, but have nothing to

do with the value of an abuse of process or emotional distress

claim.11

The only case Abdel-Aleem cites which is arguably similar

to his claim is Brooks Automation, Inc. v. Blueshift Technologies,

Abdel-Aleem argues that Sheldon v. Khanal, No. 07-2112-KHV, 10

2007 WL 4233628 (D. Kan. Nov. 10 2007), "affirmed plaintiffs'

subject matter jurisdiction with respect to the Abuse of Process

Count" based on general damages estimates; in fact, the court in

Sheldon was willing only to give preliminary consideration to the

abuse of process claim (as opposed to other claims which contained

no damages estimates at all and which the court disregarded

outright) before ordering the plaintiff to show cause as to why the

claim should not be dismissed as a matter of law. Id. at 14-15. 

Abdel-Aleem relies on Bala v. AOtec, Inc., No. 942623A, 1998 WL

1184165 (Mass. Super. Ct. June 2, 1998), for the proposition that

a party asserting an abuse of process counterclaim "prevailed" and

that "damages exceeded $75,000." In Bala, the party "prevailing"

was able to defeat a motion for summary judgment and proceed to

trial, but damages were nowhere mentioned by the court. Id. at *5. 

Abdel-Aleem relies on Aspect Software, Inc. v. Barnett, 787 11

F. Supp. 2d 118 (D. Mass. 2011), to argue that one may, under

Massachusetts law, plead punitive damages for violation of a noncompetition agreement. Not only is Abdel-Aleem's present abuse of

process claim entirely dissimilar, Aspect Software nowhere mentions

punitive damages. Rather, the case revolves around whether the

court will issue a preliminary injunction. This citation does not

in any way add to this court's understanding of the nature and

extent of the right Abdel-Aleem seeks to vindicate. Another case

Abdel-Aleem cites, Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591

F.3d 1 (1st Cir. 2009), similarly resembles OPK's state case

against him (albeit analyzing Rhode Island law), but is totally

inapposite to his claim here. The same is true of D.L. Anderson's

Lakeside Leisure Co. v. Anderson, 757 N.W.2d 803, 820-24 (Wis.

2008), another case involving a claim similar to OPK's state case,

where the Wisconsin Supreme Court held punitive damages were

appropriate in the context of a violation of a non-competition

agreement.

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Inc., No. 05-3973-BLS2, 2006 WL 307948 (Mass. Super. Ct. Jan. 24,

2006). Abdel-Aleem offers Brooks Automation as an example of a

Massachusetts state case where a claim that the court deemed

similar to abuse of process resulted in an award of $627,900. Id.

at *3. However, even assuming the abuse of process claim AbdelAleem brings here is identical to the Chapter 93A claim for

tortious interference with business relations brought in Brooks

Automation, the type of award sought makes Brooks Automation 12

distinguishable. The award there was based on a specific unpaid

invoice, entirely dissimilar from that sought by Abdel-Aleem, which

would be largely for emotional and physical suffering. Id. at *4. 

Therefore, because he has not made any arguments that help us

define the nature and extent of his right, Abdel-Aleem has failed

to make an adequate showing of objective good faith behind his

allegation that his claim is worth more than $75,000, let alone

$1,000,000.

Saint Paul Mercury's standard for justifying dismissal,

that "[i]t must appear to a legal certainty that [a plaintiff's]

claim is really for less than the jurisdictional amount," might at

Abdel-Aleem asserts that, if his case is remanded, he will 12

seek to amend his complaint to add a claim under Mass. Gen. Laws

ch. 93A. However, as we determine the amount in controversy from

the "face of the pleadings" that were before the district court,

Coventry Sewage, 71 F.3d at 5 (quoting St. Paul Mercury, 303 U.S.

at 289), we do not consider the possibility of a Chapter 93A claim

here. See also Dep't of Recreation, 942 F.2d at 89 (where claim is

not spelled out in the pleadings, court will not consider it in the

amount in controversy determination).

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first seem like a high threshold. Stewart, 356 F.3d at 338

(quoting St. Paul Mercury, 303 U.S. at 289). However, it is still

our duty "to police the border of federal jurisdiction." Spielman,

251 F.3d at 4. Where the opposing party has contested the alleged

amount in controversy, the "sufficient particularity" standard

requires something more than a plaintiff's conclusory statements. 

Here, Abdel-Aleem was given the opportunity to amend his complaint,

but he still provided no factual support as to the value of his

claim. Further, in his argument before this court, he has not

provided any relevant case law from which we could determine his

objective good faith. We therefore affirm the district court's

dismissal for lack of subject matter jurisdiction. 

III. Conclusion

Finding no error in the district court's determination

that the amount in controversy requirement was not met, we affirm.

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