Delice v. Rhymes N Dimes Brands
- Laura Swain
- 1:20-cv-09352
- U.S. District Court · Southern District of New York
- 5
In Delice v. Rhymes N Dimes Brands, Judge Swain dismissed the complaint without prejudice because diversity jurisdiction was lacking.
Wisner Delice’s complaint was dismissed without prejudice, and his fee-free status for an appeal was denied; Rhymes N Dimes Brands was not required to litigate the claims in this action.
What happened
Wisner Delice, representing himself, sued Rhymes N Dimes Brands after the company allegedly failed to mail him a magazine he purchased for $37.50. He sought $85,000 for emotional pain, false advertising, negligence, and related costs.
The court explained that diversity jurisdiction requires citizens of different states and more than $75,000 in controversy. It found that the possible damages were below that amount: false-advertising damages could reach no more than $10,000, and the alleged direct damages were at most $50.
Judge Laura Taylor Swain dismissed the complaint without prejudice for lack of subject matter jurisdiction, declined to allow an amendment, and denied fee-free status for any appeal.
The detailed version
- Delice v. Rhymes N Dimes Brands · No. 1:20-cv-09352
- Laura Swain
- Apr. 19, 2021
Background
Wisner Delice, who was incarcerated and appeared without a lawyer, sued Rhymes N Dimes Brands (RNDB) under the court’s diversity jurisdiction. The opinion states that RNDB is a New York company and that Delice was incarcerated at the Santa Rosa Correctional Institution in Milton, Florida. Delice alleged that his correctional facility mailed RNDB a $37.50 check for a magazine on May 18, 2020; RNDB later cashed the check but did not mail the magazine or respond to his letters. He sought $85,000 for emotional pain, false advertising, negligence, and additional stationery costs.
The court had previously allowed Delice to proceed without prepaying filing fees. It screened his complaint under the federal statutes governing fee-free prisoner complaints and considered whether it had subject matter jurisdiction, meaning legal authority to hear the case.
Jurisdiction and Claims
Diversity jurisdiction requires the plaintiff and defendant to be citizens of different states and requires more than $75,000 in controversy. The court held that Delice did not allege facts satisfying the required amount.
For negligence, the court stated that New York law requires a duty of care, a breach, and damages caused by the breach. It concluded that RNDB did not owe Delice a duty of care, so he could not recover damages on that theory.
For false advertising under New York General Business Law § 349, the court assumed for purposes of the order that Delice might be able to state a claim, but explained that the available damages would be no more than $10,000. The court also considered a possible breach-of-contract claim. It stated that contract damages would be limited to direct damages, and that Delice’s subscription, stationery, and postage costs totaled at most $50. The court further stated that emotional-distress damages cannot be recovered for breach of contract in these circumstances.
Disposition
The court dismissed the complaint without prejudice for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3). It declined to grant leave to amend because it concluded that the defects could not be cured by amendment. The Clerk was directed to mail Delice a copy of the order and record service on the docket.
Judge Laura Taylor Swain also certified that any appeal would not be taken in good faith and denied Delice fee-free status for purposes of an appeal.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.