10-4085-cv
Bank v. Hydra Group LLC


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
of September, two thousand eleven.

Present:
            ROGER J. MINER,
            PIERRE N. LEVAL,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________

Todd Bank, Individually and on Behalf of All
Others Similarly Situated,

                          Plaintiff-Appellant,

                v.                                                 No.10-4085-cv

Hydra Group LLC,

                  Defendant-Appellee.
_____________________________________

FOR APPELLANT:                   Todd Bank, pro se, Kew Gardens, NY.

FOR APPELLEE:           Stephen L. Fox, Morris & Fox PC, New York, NY.
_____________________________________
        Appeal from a judgment of the United States District Court for the Eastern District of

New York (Gleeson, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED,

ADJUDGED, and DECREED that the judgment of the district court is VACATED and

REMANDED.

        Appellant Todd Bank, an attorney appearing pro se, appeals the district court’s sua

sponte dismissal of his putative class action for lack of subject matter jurisdiction. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

        We review de novo a district court’s dismissal of a complaint for lack of subject matter

jurisdiction. See Delgado v. Quarantillo, 643 F.3d 52, 54 (2d Cir. 2011) (per curiam). In

determining whether we have subject matter jurisdiction to consider a suit brought as a class

action, we will treat it as such even though the district court has yet to certify the class. See

Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 n.7 (2d Cir. 2000).

        The district court found that it lacked jurisdiction because Bank’s putative class action

did not satisfy the amount in controversy requirement. The Class Action Fairness Act (“CAFA”)

requires a party seeking entrance to federal court to demonstrate that the aggregate amount in

controversy exceeds $5,000,000, exclusive of interest and costs. See 28 U.S.C. § 1332(d)(2)

(2006); Blockbuster, Inc. v. Galeno, 472 F.3d 53, 56 (2d Cir. 2006). Assuming that the general

standards governing the amount of controversy requirement under 28 U.S.C. § 1332(a)(1) apply

coextensively with those standards governing the CAFA, dismissal is warranted on that basis

only if it “appear[s] to a legal certainty that the claim is really for less than the jurisdictional

amount.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); accord

Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (discussing Red

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Cab Co., 303 U.S. at 288–89); see also Scherer v. Equitable Life Assurance Soc’y of U.S., 347

F.3d 394, 397 (2d Cir. 2003); Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.

1982). Based on our review of Bank’s complaint and the paucity of analysis by California courts

of Section 17529.5(a)(3) of the California Business & Professional Code, Cal. Bus. & Prof. Code

§ 17529.5(a)(3) (West 2008), under which Bank brings this suit, we cannot say with a “legal

certainty” that the amount in controversy in his class action is less than $5,000,000. See

Tongkook, 14 F.3d at 785 (“Where the damages sought are uncertain, the doubt should be

resolved in favor of the plaintiff’s pleadings.”). We therefore VACATE the district court’s

judgment and REMAND for further proceedings.1


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




       1
          We express no view as to whether Bank’s complaint should be dismissed on any other
ground, including for the reasons articulated by defendant-appellee in its motion to dismiss, on
which the district court declined to rule.

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