                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-3830
                                       ___________

                                  DAVID C. ONYIUKE,
                                                 Appellant
                                          v.

                  CHEAP TICKETS, INC.; VIRGIN ATLANTIC LTD.
                     ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                           (D.C. Civil Action No. 09-cv-00891)
                     District Judge: Honorable Katharine S. Hayden
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 1, 2011
                Before: SLOVITER, FISHER and WEIS, Circuit Judges
                             (Opinion filed July 5, 2011)
                                   ___________

                                        OPINION
                                       ___________

PER CURIAM.

              Appellant David C. Onyiuke, proceeding pro se, appeals from the orders of

the United States District Court for the District of New Jersey dismissing his complaint

for lack of subject matter jurisdiction and denying his motion for reconsideration. For the

reasons that follow, we will affirm the orders of the District Court.
                                             I.

               In April 2009, Onyiuke filed an amended complaint against Virgin Atlantic

Ltd. (“Virgin Atlantic”) and Trip Network, Inc. d/b/a Cheaptickets.com (“Cheaptickets”),

alleging breach of contract, breach of the covenant of good faith and fair dealing, and

conversion, arising from the cancellation of service between Newark Liberty

International Airport and Gatwick Airport in London, England.

               In August 2008, Onyiuke purchased plane tickets through the online travel

site Cheaptickets.com. Under to the flight arrangement, he was scheduled to fly from

Newark to London on December 12, 2008 on a plane owned and operated by Continental

Airlines, which undertakes certain flight obligations from Virgin Atlantic. Onyiuke was

then scheduled to fly – via Virgin Nigeria Airlines – to Lagos, Nigeria, his final

destination. Under the arrangement, Onyiuke would embark on a return flight to New

Jersey on January 12, 2009. He paid a total of $1,563.70 for the tickets.

               On or about November 7, 2008, Continental Airlines discontinued service

between Newark and Gatwick Airport. Cheaptickets notified Onyiuke about this change

in service on December 3, 2008 and offered a modified flight arrangement whereby

Onyiuke would have to provide his own transportation from Heathrow Airport to

Gatwick Airport in order to catch his connecting flight to Nigeria. Alternatively,

Cheaptickets offered to refund the full cost of his flight. Onyiuke refused to accept either

alternative.


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              The following day, Onyiuke contacted Cheaptickets customer service and

was again offered a refund. After refusing to accept Cheaptickets’ refund offer for a third

time, Onyiuke booked his flights with a different travel agency for $3,163.29 and

initiated suit against Cheaptickets and Virgin Atlantic.

              The Defendants moved to dismiss the amended complaint pursuant to Rule

12(b)(1) of the Federal Rules of Civil Procedure on the grounds that the District Court

lacked subject matter jurisdiction over Onyiuke’s claims because the amended complaint

failed to satisfy the amount of money in controversy required under 28 U.S.C. § 1332.

The Court granted the motions, concluding that the amount in controversy did not meet

the minimum jurisdictional amount. Onyiuke filed a motion for reconsideration, which

the District Court denied. Onyiuke appeals.

                                             II.

              We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We

review a District Court’s determination of its jurisdiction de novo. See Emerald Investors

Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 197 (3d Cir. 2007). To the extent that

a District Court makes factual findings in determining jurisdiction, we review for clear

error. Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998).

We will not disturb the factual findings of the District Court unless we are “left with the

definite and firm conviction that a mistake has been committed” in the District Court’s

fact-finding. Frett-Smith v. Vanterpool, 511 F.3d 396, 399 (3d Cir. 2008) (citation

                                              3
omitted).

              Diversity jurisdiction requires that the controversy be between citizens of

different states, and that the amount in controversy exceed $75,000. See 28 U.S.C. §

1332(a)(1). Whether diversity jurisdiction exists is determined by examining “the facts

as they exist when the complaint is filed.” Newman-Green, Inc. v. Alfonzo-Larrain, 490

U.S. 826, 830 (1989); Grand Union Supermarkets of the V.I., Inc. v. H.E. Lockhart

Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003).

              In determining whether the amount in controversy exceeds $75,000, the

Court generally accepts the plaintiff’s good faith allegations. Columbia Gas

Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995). However, the case may

be dismissed for failure to meet the amount in controversy requirement if it appears to a

“legal certainty” that the claim is for less than the jurisdictional amount. St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); Dardovitch v. Haltzman,

190 F.3d 125, 135 (3d Cir. 1999). It necessarily follows that whether the claims are for

less than the jurisdictional amount depends on what damages a plaintiff could

conceivably recover under state law. Suber v. Chrysler Corp., 104 F.3d 578, 584 (3d Cir.

1997). When punitive damages are recoverable, they are properly considered in

determining whether the jurisdictional amount has been satisfied, see Packard v.

Provident Nat’l Bank, 994 F.2d 1039, 1046 (3d Cir. 1993), but when a claim for punitive

damages is frivolous, “such damages are unavailable as a matter of law” and “that claim

must be stricken from the amount in controversy,” id.
                                              4
              Onyiuke sought identical damages of $127,793.57 from each defendant, a

sum composed of nominal, actual, and special contract damages; punitive damages;

damages for mental agony; and litigation expenses. Notably, of the $127,793.57 that

Onyiuke sought from each Defendant, he allotted more than $87,000 to his conversion

claim (with $80,000 representing punitive damages), and more than $40,000 to his breach

of contract claim (with $25,000 representing his mental agony damages). After

reviewing the record, we conclude that the District Court did not err in determining that

the amount in controversy did not satisfy the jurisdictional requirement.

              First, assuming that punitive damages are recoverable in New Jersey for the

tort claim of conversion, such damages may only be awarded if a plaintiff demonstrates

by “clear and convincing evidence, that the harm [he] suffered was the result of the

defendant’s acts or omissions, and [that] such acts or omissions were actuated by actual

malice or accompanied by a wanton and willful disregard of persons who foreseeably

might be harmed by those acts or omissions.” See N.J. Stat. Ann. § 2A:15-5.12(a).1

              We agree with the District Court that Onyiuke failed to allege facts

sufficient to demonstrate that the Defendants acted with the requisite malice or willful

disregard to justify his demand for punitive damages arising from the alleged conversion


1
  Actual malice is defined as “an intentional wrongdoing in the sense of an evil-minded
act.” N.J. Stat. Ann. § 2A:15-5.10. Furthermore, wanton and willful disregard is a
“deliberate act or omission with knowledge of a high degree of probability of harm to
another and reckless indifference to the consequences of such act or omission.” Id.
                                             5
of $1,563.70. As the District Court noted, Onyiuke’s claims arise from his dissatisfaction

with the changes to his itinerary, the refund policy in place, and the unwillingness of the

Defendants to meet his demands. Such allegations do not support a claim for punitive

damages as defined under the statute.

              We now turn to Onyiuke’s request for damages of $25,000 from each

Defendant for mental agony arising from the alleged breach of contract. Contrary to

Onyiuke’s assertion, the District Court applied the correct legal standard to evaluate his

claim. The Court correctly observed that, under New Jersey law, a plaintiff may recover

for emotional distress damages resulting from a breach of contract where the breach was

“both intentional and outrageous and proximately cause[d] severe, foreseeable emotional

distress.” See Picogna v. Bd. of Educ., 671 A.2d 1035, 1037 (N.J. 1996). The “conduct

must be so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” Buckley v. Trenton Saving Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988)

(quoting Restatement (Second) of Torts, § 46).

              We agree that Onyiuke failed to allege intentional conduct on the part of the

Defendants so outrageous as to cause emotional distress. Although Onyiuke was

undoubtedly inconvenienced by the cancellation of his flight, “complaints [that] amount

to nothing more than aggravation, embarrassment, an unspecified number of headaches,

and loss of sleep” do not amount to severe emotional distress. Id. at 864. Indeed,

Onyiuke ultimately traveled to Nigeria as planned and also declined Defendants’ offer to
                                             6
reimburse him for the cost of his alternate travel arrangements.

              Without the demands for punitive damages and damages for mental agony,

the amount in controversy does not meet the threshold amount for diversity jurisdiction.

Thus, we find no error in the District Court’s decision to dismiss the amended complaint

for lack of jurisdiction. In addition, we discern no abuse of discretion in the District

Court’s denial of Onyiuke’s motion for reconsideration. Onyiuke did not demonstrate

any basis for granting the motion, such as intervening change in controlling law, new

evidence, or the need to correct clear error of law or fact or prevent manifest injustice.

See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).

              For the foregoing reasons, we will affirm the orders of the District Court.




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