United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION TO
before the Court is a motion to dismiss  filed pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure by
Defendant Northeast Mississippi Community College. Upon due
consideration and for the reasons stated below, the Court
finds that the motion to dismiss  should be granted.
Factual and Procedural Background
29, 2016, Plaintiff Ricky Smither ("Plaintiff), former
football coach at Northeast Mississippi Community College,
filed this action against Defendant Northeast Mississippi
Community College ("Defendant"). Plaintiff asserts
a breach of contract claim against Defendant pertaining to
the termination of his employment. Plaintiff alleges that
Defendant hired him in February 2007 as an assistant football
coach and promoted him to head football coach in 2008.
Pl's Compl.  ¶ 5. Plaintiff worked pursuant to a
one-year employment contract that was up for renewal each
year. Id. ¶ 6. In 2014, Plaintiff signed a
standard employment contract that covered the time frame of
July 1, 2014 through June 30, 2015. Id. Plaintiff
avers that after certain incidents occurring during a home
game against Pearl River Community College on October 16,
2014, Defendant terminated his employment. Id.
¶ 13. Plaintiff further avers that he exhausted his
administrative remedies. Id. Plaintiff alleges that
Defendant breached its contractual obligations to him by
terminating him without cause and by evicting him without
cause. Id. ¶ 14. Plaintiffs complaint does not
explicitly state an amount in controversy, but provides that
Plaintiff seeks "the specific performance of the
contract and the payment of all damages flowing therefrom . .
., including costs of court and attorney's fees[J as well
as any other relief deemed appropriate." Id.
¶ 18, 5.
of filing an answer, Defendant has filed the present motion
to dismiss, wherein it contends pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure that the Court does not
have diversity jurisdiction over the case because Plaintiff
has failed to satisfy the jurisdictional amount in
controversy. Plaintiff filed a response, and Defendant filed
a reply. Subsequently, without leave to do so, Plaintiff
filed what is apparently an untimely memorandum brief
corresponding to her earlier filed response, and Defendant
subsequently filed an amended rebuttal to Plaintiffs
Analysis and Discussion
'Federal courts are courts of limited jurisdiction, '
possessing 'only that power authorized by Constitution
and statute.' " Gunn v. Minton, __ U.S.
__, __, 133 S.Ct. 1059, 1064, 185 L.Ed.2d
72 (Feb. 20, 2013) (quoting Kokkonen v. Guar. Life Ins.
Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128
L.Ed.2d 391 (1994)). "A Rule 12(b)(1) motion to dismiss
challenges the subject-matter jurisdiction of the federal
court." In re FEMA Trailer Formaldehyde Prods. Liab.
Litig., 668 F.3d 281, 286 (5th Cir. 2012) (citing
Fed.R.Civ.P. 12(b)(1)). "[A] factual attack under Rule
12(b)(1) may occur at any stage of the proceedings, and
plaintiff bears the burden of proof that jurisdiction does in
fact exist." Arena v. Graybar Elec. Co., 669
F.3d 214, 223 (5th Cir. 2012) (internal quotation marks and
Fifth Circuit has instructed:
A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case. In considering a
challenge to subject matter jurisdiction, the district court
is free to weigh the evidence and resolve factual disputes in
order to satisfy itself that it has the power to hear the
case. Thus, under Rule 12(b)(1), the district court can
resolve disputed issues of fact to the extent necessary to
Smith v. Reg'l Transit Auth, 756 F.3d 340, 347
(5th Cir. 2014) (quotation marks and citation omitted).
alleges in the complaint that the basis of the Court's
jurisdiction is federal diversity jurisdiction. Federal
diversity jurisdiction requires complete diversity between
plaintiffs and defendants and an amount in controversy that
exceeds $75, 000, exclusive of interest and costs.
See 28 U.S.C. § 1332(a); In re 1994 Exxon
Chem. Fire, 558 F.3d 378, 387 (5th Cir. 2009). Defendant
does not dispute diversity of citizenship; its sole
challenge in the present motion to dismiss is to the
jurisdictional amount in controversy.
attaches to its motion to dismiss supporting documentation.
The motion therefore presents a facial attack that requires
the resolution of factual matters outside the pleadings. In
ruling on a Rule 12(b)(1) motion to dismiss, the Court can
consider: "(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts." Tsolmon
v. United States, 841 F.3d 378, 382 (5th Cir. 2016)
(internal quotation marks and citation omitted).
generally begin the amount-in-controversy analysis by "
'look[ing] only to the face of the complaint and ask[ing]
whether the amount in controversy exceeds' the
jurisdictional threshold." Ervin v. Sprint
Commc'ns Co., 364 F.App'x 114, 117 (5th Cir.
2010) (per curiam) (quoting S. W.S. Erectors, Inc. v.
Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996)). The
Fifth Circuit has stated that "[i]t has long been
recognized that unless the law gives a different rule, the
sum claimed by the plaintiff controls if the claim is
apparently made in good faith. To justify dismissal, it must
appear to a legal certainty that the claim is really for less
than the jurisdictional amount." St. Paul
Reinsurance Co. v. Greenberg, 134F.3d 1250, 1253 (5th
Cir. 1998) (citing St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845
(1938) (internal citation omitted)). "[H]owever, . . .
this 'legal certainty' test has limited utility-in
fact is inapplicable-when, [as in the case sub judice,
] the plaintiff has alleged an indeterminate amount of
damages. See Id. (citing De Aguilar v. Boeing
Co., 47 F.3d 1404, 1409 (5th Cir.), cert,
denied, 516 U.S. 865, 116 S.Ct. 180, 133 L.Ed.2d 119
(1995)). "Importantly, the jurisdictional facts must be
judged as of the time the complaint is filed; subsequent
events cannot serve to deprive the court of jurisdiction once
it has attached." Id. at 1253-1254 (citing
St. Paul Mercury Indem. Co., 303 U.S. at 288-89, 58
S.Ct. 586) (internal citation omitted)).
to the amount-in-controversy analysis, in Plaintiffs
complaint, he seeks damages for Defendant's alleged
breach of his employment contract by "terminating him
without cause" and by evicting him from his residence
provided by said employment contract "without
cause." Pl's Compl.  ¶ 14. Although
Plaintiff alleges in his complaint an indeterminate amount of
damages, he conclusorily alleges that "the amount in
controversy exceeds $75, 000." Id. ¶ 3.
Plaintiff seeks the following: "the specific performance
of the contract and the payment of all damages flowing
therefrom .. . including costs of court and attorney fees[, ]
as well as any other relief deemed appropriate."
Id. ¶ 18, 5. "Where, as here, the
plaintiffs complaint makes only a conclusory statement
concerning jurisdiction and the amount in controversy is
indeterminate, we ask 'whether it is "facially
apparent" that the claims exceed the jurisdictional
amount.' " Celestine v. TransWood, Inc.,
467 F.App'x 317, 319 (5th Cir. 2012) (per curiam)
(quoting St. Paul Reinsurance Co., 134 F.3d at
1253). The Court finds that it is not facially apparent that
Plaintiffs claims exceed the jurisdictional amount. The
complaint merely indicates that the amount in controversy is
comprised of the specific performance of the contract and any
damages flowing therefrom that would not include fees and
costs. Plaintiffs complaint includes " ' bare
allegations [of jurisdictional facts] [that] have been held
insufficient to invest a federal court with
jurisdiction.' " See St. Paul Reinsurance
Co., 134 F.3d at 1253 (quoting Asociacion Nacional
de Pescadores a Pequena Escala o Artesanales de Colombia v.
Dow Quimica de Colombia S.A., 988 F.2d 559, 566 (5th
Cir. 1993), cert, denied, 510 U.S. 1041, 114 S.Ct.
685, 126 L.Ed.2d 653 (1994)).
in considering Plaintiffs subsequent arguments in response to
the factual challenge, as well as the record in this case,
the Court finds that Plaintiff has failed to meet ...