     10-4880
     Kimm v. KCC Trading, Inc.


                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23rd day of January, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       MICHAEL S. KIMM,
14                Appellant,
15
16                    -v.-                                               10-4880
17
18       KCC TRADING, INC., WON BOK CHOI, MISUK
19       CHOI, JIHAE CHOI,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                        Michael S. Kimm, pro se,
24                                             Englewood, New Jersey.
25
26       FOR APPELLEES:                        John K. Idouchi, Flushing, New
27                                             York.

                                                  1
 1
 2        Appeal from a judgment of the United States District
 3   Court for the Southern District of New York (Baer, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   AFFIRMED.
 8
 9
10        Michael Kimm, pro se, appeals from the dismissal of his
11   complaint, for lack of subject matter jurisdiction, on the
12   ground that he failed to satisfy the threshold amount-in-
13   controversy requirement. We assume the parties’ familiarity
14   with the underlying facts, the procedural history, and the
15   issues presented for review.
16
17        “In reviewing a district court’s dismissal of a
18   complaint for lack of subject matter jurisdiction, we review
19   factual findings for clear error and legal conclusions de
20   novo.” Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d
21   Cir. 2008) (per curiam).
22
23        To invoke diversity jurisdiction, the amount in
24   controversy must exceed $75,000. 28 U.S.C. § 1332(a).
25   “This Court recognizes a rebuttable presumption that the
26   face of the complaint is a good faith representation of the
27   actual amount in controversy.” Wolde–Meskel v. Vocational
28   Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d
29   Cir. 1999). To defeat this presumption, it “‘must appear to
30   a legal certainty that the claim is really for less than the
31   jurisdictional amount.’” Id. (quoting St. Paul Mercury
32   Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).
33
34        Kimm, who alleged generally that this action involved
35   an amount in controversy exceeding $75,000, sought to
36   recover an unspecified unpaid balance as well as legal fees
37   and costs incurred in this action. In opposition, the
38   Appellees established that they owed an unpaid balance of
39   only $45,957.75. The letter from the fee arbitration
40   committee, which states only that the total fee Kimm charged
41   exceeded $100,000, does not bear an inference as to the
42   amount of the unpaid balance.
43
44        Attorneys’ fees may be used to satisfy the amount in
45   controversy only if they are recoverable as a matter of
46   right pursuant to statute or contract. Givens v. W.T. Grant
47   Co., 457 F.2d 612, 614 (2d Cir. 1972), vacated on other

                                  2
 1   grounds, 409 U.S. 56 (1972); see also 28 U.S.C. § 1332(a)
 2   (“The district courts shall have original jurisdiction of
 3   all civil actions where the matter in controversy exceeds
 4   the sum or value of $75,000, exclusive of interest and costs
 5   . . . .”). The retainer agreement provides that Appellees
 6   must indemnify Kimm for costs incurred if they assert a
 7   “claim” against him. But Kimm is the plaintiff here.
 8
 9        Even if the indemnification provision applies, Kimm has
10   not established the necessary amount in controversy. His
11   bare statement that his costs exceed $30,000 provides no
12   assurance that this estimate is made in good faith and
13   “colorable for the purpose of conferring jurisdiction.” See
14   Chase Manhattan Bank, N.A. v. Am. Nat’l Bank & Trust Co. of
15   Chi., 93 F.3d 1064, 1070 (2d Cir. 1996).
16
17
18        Finding no merit in Kimm’s remaining arguments, we
19   hereby AFFIRM the judgment of the district court.
20
21
22
23                              FOR THE COURT:
24                              CATHERINE O’HAGAN WOLFE, CLERK
25
26




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