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USCA1 Opinion

Jun 30, 1995


[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT

____________________

No. 95-1475

ROY A. DAY,

Plaintiff, Appellant,

v.

KENZO NAKAMURA, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]


___________________

____________________

Before

Cyr, Boudin and Lynch,


Circuit Judges.
______________

____________________

Roy A. Davis, pro se, on motion for summary reversal.


____________
Marshall D. Stein and
__________________

Cherwin & Glickman on


___________________

affirmance and memorandum in support

motion for summ

of motion for summary affirma

for appellees.

____________________

____________________

Per Curiam.
___________

appeals pro
___

se from
__

Plaintiff-appellant,

the district court's

Roy

A.

dismissal of

Day,

his

complaint for lack of subject matter jurisdiction pursuant to

Fed. R. Civ. P.

affirmance.

12(b)(1).

Day

has

Appellees have moved

moved

for

summary

for summary

reversal.

We

summarily affirm the dismissal of this complaint.

I.

Diversity Jurisdiction
______________________

"Once challenged,

. .

, the

party seeking

to

invoke

jurisdiction

has

the

burden

sufficient particularity the facts

a legal

certainty

that the

jurisdictional

amount.

amending

pleadings

the

alleging

with

indicating that it is not

claim

involves less

party may

or

of

by

meet

the

this burden

submitting

Department of Recreation & Sports


_________________________________

than

by

affidavits."

v. World Boxing Ass'n, 942


__________________

F.2d 84, 88 (1st Cir. 1991).

Day

amend

the

has failed

pleadings or

appellees' motion

to meet

submit

to dismiss.

his burden.

affidavits

Although

$180,000 in compensatory damages,

of

the computer

was only

$2,385.

He

did not

in response

to

the complaint seeks

the entire purchase

Therefore, even

price

if the

inability to purchase additional memory rendered the computer

completely

useless

compensatory

(which

damages

would

Day

admits

not

it

approach

did

not),

$50,000.

the

The

complaint does not allege lost profits or other consequential

business losses.

-2-

Whether

Massachusetts or

Florida law

controls (a

matter about which the

pain and

parties disagree), damages for mental

suffering and punitive damages

on these facts.

Therefore,

indicating that it is

are not recoverable

Day has failed

to plead

not a legal certainty that

facts

his claims

involve less than $50,000.

II.

Federal Question Jurisdiction


_____________________________

Defendant's motion to dismiss was

Fed.

R. Civ. P. 12(b)(1)

and 12(b)(6).

pursuant to both

The district court

dismissed the complaint pursuant to 12(b)(1).

appeal

that the

"moot"

because the

Clayton Acts

adequacy

of the

district

jurisdictional amount

complaint arises

under the

and that, therefore, there

jurisdiction pursuant to 28 U.S.C.

court's

12(b)(1)

Day argues on

1331.

dismissal on

is

Sherman and

is federal question

We may affirm the

any

independently

sufficient ground,

including failure

to state a

claim. See
___

Watterson v. Page, 987 F.2d 1, 7 n.3 (1st Cir. 1993).


_________
____

The

Clayton

basis of

Acts is

that

Day's claims

under the

defendants engaged

Sherman and

in the

"monopolistic practices":

deny[ing]

citizens

`random accessory memory'

additional

. . .

for NEC

computers at a reasonable and competitive


purchase price, solely for the purpose to
force, coerce and intimidate the citizens
to purchase a `new NEC computer' by using
________________
correspondence
`falsehoods,

which
fraud,

is

with

misrepresentations

and half-truths,'. . . .

-3-

replete

following

As the appellees point out in their Opposition to Appellant's

Motion for Summary Reversal, the claim is illogical:

such a range of

appellant's

memory

"[W]ith

alternative[] [lap top computers] available,

dissatisfaction with

on his NEC machine

the cost of

would result in

enhancing the

his purchasing a

competitor's product, rather than being forced to buy another

product from NEC."

The complaint

memory

prices.

for

the

It also

having a monopoly

286V

alleges

at

that NEC

unreasonable

alleges, however,

sells

and

that

additional

noncompetitive

NEC --

far from

in the

supply of additional

RAM for

286V -- does not have the

RAM for sale at all.

The

"monopolistic practices" could not

effect

of restraining

The complaint's vague

the

alleged

even conceivably have the

competition or

creating a

monopoly.

and contradictory allegations fail

to

state a claim under the federal antitrust laws.

Accordingly, the district court's dismissal of this

complaint is affirmed.
________

See Loc. R. 27.1.


___

Appellees' request

for an injunction restricting Day's filings with the district

court

is denied.
______

Appellees may

file

a motion

with

the

district court

seeking an injunction from

the need arises.

-4-

future filings if