                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

                                                )
ROY THOMAS,                                     )
                                                )
                 Plaintiff,                     )
                                                )
       v.                                       )     Civil Action No. 07-892 (RMC)
                                                )
NATIONAL LEGAL PROFESSIONAL                     )
ASSOCIATES, et al.,                             )
                                                )
                 Defendants.                    )
                                                )

                                   MEMORANDUM OPINION

                 On July 31, 2008, after Defendants had defaulted, the Court ordered Defendants to

pay $10,000 in compensatory damages to Plaintiff, the amount of money that Plaintiff had paid

Defendants to assist him in obtaining a new trial.1 See Dkt. # 30. The Court ordered further briefing

on the amount of punitive damages owed to Plaintiff, if any. See id. Having considered those briefs,

the Court will deny Plaintiff’s request for punitive damages.

                 Plaintiff, proceeding pro se, sought $10,000 in compensatory damages and $90,000

in punitive damages arising from Defendants’ post-conviction legal representation of Plaintiff. In

Defendants’ Brief Regarding Punitive Damages [Dkt. # 33] (“Defs.’ Br.”), Defendants not only

argue against punitive damages but also that the Court should not have included the amount of

Plaintiff’s requested punitive damages in determining the amount in controversy under 28 U.S.C.

§ 1332(a). Before reaching the merits of Plaintiff’s punitive damages request, the Court will first

address Defendants’ jurisdictional challenge.




       1
            Plaintiff was convicted of murder in D.C. Superior Court.
               The rule governing dismissal for want of jurisdiction in cases brought
               in federal court is that . . . the sum claimed by the plaintiff controls if
               the claim is apparently made in good faith. It must appear to a legal
               certainty that the claim is really for less than the jurisdictional
               amount to justify dismissal. The inability of plaintiff to recover an
               amount adequate to give the court jurisdiction does not show his bad
               faith or oust the jurisdiction. Nor does the fact that the complaint
               discloses the existence of a valid defense to the claim. But if, from
               the face of the pleadings, it is apparent, to a legal certainty, that the
               plaintiff cannot recover the amount claimed, or if, from the proofs,
               the court is satisfied to a like certainty that the plaintiff never was
               entitled to recover that amount, and that his claim was therefore
               colorable for the purpose of conferring jurisdiction, the suit will be
               dismissed.

Rosenboro v. Kim, 994 F.2d 13, 16-17 (D.C. Cir. 1993) (emphasis and alterations in original)

(quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938)). “[T]he

Supreme Court’s yardstick demands that courts be very confident that a party cannot recover the

jurisdictional amount before dismissing the case for want of jurisdiction.” Id. at 17. “In applying

the legal certainty test where the availability of punitive damages is the sine qua non of federal

jurisdiction the District Court should scrutinize the punitive damage claim to ensure that it has at

least a colorable basis in law and fact.” Kahal v. J.W. Wilson & Assocs., Inc., 673 F.2d 547, 549

(D.C. Cir. 1982).

               In its July 31, 2008 Order, the Court had reviewed Plaintiff’s claims and found that

“Mr. Thomas has sufficiently set forth his allegations of fraud and breach of contract in the

Complaint to establish this Court’s jurisdiction.” Dkt. # 30 at 2. Defendants advance two arguments

for why the Court assertedly erred in including Plaintiff’s punitive damages request in the amount

in controversy: (1) the amount is grossly excessive and violates due process, and (2) the basis of

Plaintiff’s Complaint is a breach of contract and punitive damages are unavailable for breach of

contract. See Defs.’ Br. at 10-12. Both arguments fail.

                                                  -2-
               Defendants argue that “in order to reach the threshold total amount of $75,000.00,

the Plaintiff would have to claim a right to $65,000.00[,]” that “[t]his represents an amount 6.5 times

as much as the claimed amount of compensatory damages[,]” and that “such a punitive award would

certainly violate the principles of due process.” Id. at 11. However, the Supreme Court “has been

reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to

the plaintiff and the punitive damages award” and it recently “decline[d] again to impose a bright-

line ratio which a punitive damages award cannot exceed.” State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 424-25 (2003). The closest the Supreme Court has come to establishing

a hard ratio cap on punitive damages is to admonish that “few awards exceeding a single-digit ratio

between punitive and compensatory damages, to a significant degree, will satisfy due process.” Id.

at 425. Thus, “[s]ingle-digit multipliers[,]” like here, “are more likely to comport with due process

. . . than awards with ratios of 500 to 1,” or, as in Campbell, “145 to 1.” Id. (citation omitted).

Against this backdrop, the Court cannot say with “legal certainty” that a ratio of 6.5 to 1 between

Plaintiff’s punitive and compensatory damages violates Defendants’ due process rights.2

               Defendants also argue that “[s]ince punitive damages are not available in a breach of

contract claim, the only amount claimed by the Plaintiff in good faith is $10,000.” Defs.’ Br. at 12.

Defendants overlook that they owed Plaintiff fiduciary duties. “Although punitive damages

generally are not recoverable for breach of contract, this rule is inapplicable if there exists an

independent fiduciary relationship between the parties.” Wagman v. Lee, 457 A.2d 401, 404 (D.C.



       2
          Defendants’ reliance on Hunter v. District of Columbia, 384 F. Supp. 2d 257 (D.D.C.
2005), is misplaced because “[t]o meet the $75,000 amount in controversy requirement,” plaintiff
would have had to receive a punitive damage award in “an amount almost thirteen times the
compensatory damages claimed.” Id. at 261.

                                                 -3-
1983). There existed such a fiduciary relationship between Plaintiff and Defendants. See, e.g.,

Connelly v. Swick & Shapiro, P.C., 749 A.2d 1264, 1268 (D.C. 2000) (“there is an ever present

fiduciary responsibility that arches over every aspect of the lawyer-client relationship”).

                Nor does the Court agree with Defendants’ assessment that “[t]here can be no dispute

that the alleged basis of the Plaintiff’s complaint is for an unfounded alleged breach of contract.”

Defs.’ Br. at 12. While it is true that Plaintiff specifically pleaded breach of contract, he also alleged

fraud, and because Plaintiff is proceeding pro se the Court must construe his Complaint liberally.

See, e.g., Brown v. Dist. of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008).                   Plaintiff’s

“STATEMENT OF CLAIM” provided that “[t]his complaint emenates [sic] due to fraudulent and

unconstitutional taking of funds from the [P]laintiff by the [D]efendants.” Compl. IV.B. The

gravamen of Plaintiff’s Complaint is that Defendants “fail[ed] to perform the research and to

produce a viable motion that the Plaintiff could file to attack the convictions and sentences in the

criminal case.” Id. ¶ 12. The substance of Plaintiff’s allegations sound in fraud, legal malpractice

and/or breach of fiduciary duty.3 Punitive damages may be recoverable for such independent torts.

See, e.g., Fireman’s Fund Ins. Co. v. CTIA, 480 F. Supp. 2d 7, 13 (D.D.C. 2007) (“The District of



        3
           See Compl. IV.B. ¶ 2 (motion not timely filed); ¶ 3 (motion was “totally off-point”); ¶ 4
(“NLPA had not done any research on the issues that the Plaintiff wished to raise, or any other issues,
instead NLPA had simply retyped the contents of the motions and briefs the Plaintiff sent to
NLPA”); ¶ 5 (memorandum in support of motion “was based on a flawed concept that somehow
Plaintiff’s sentences were ‘illegal’ due to subsequent decisions in Apprendi, Blakely, and Booker”);
¶ 6 (memorandum in support of motion “claimed that D.C. Law is unconstitutional” but “listed no
argument or support for this premise” and “the motion list[ed] crimes which are not relevant to
Plaintiff’s convictions or sentences”); ¶ 7 (argument on page 10 of the memorandum “is vague, and
totally frivolous”); ¶ 9 (“In an attempt to further deceive the [P]laintiff and to attempt to justify
keeping Plaintiff’s $10,000[,]” Defendants “conspired to not accept any telephone calls from the
Plaintiff or the Plaintiff’s family, along with hastily preparing another motion which the Plaintiff had
already informed the [D]efendants that Plaintiff did not want to be prepared.”).

                                                   -4-
Columbia’s exception to the general prohibition on punitive damages for contract claims applies

most often if the breach of contract merges with an independent, recognized tort, such as . . . fraud”).

Therefore, the Court cannot with “legal certainty” agree with Defendants’ assertion that Plaintiff’s

“claim for punitive damages in this matter is ridiculous and should not have been utilized to award

federal jurisdiction in this matter.” Defs.’ Br. at 10.

               That said, the Court declines to award Plaintiff punitive damages in this case. “Even

where a sufficient legal foundation exists for the award of punitive damages, the decision to award

such damages lies with the trier of fact.” Lyons v. Jordan, 524 A.2d 1119, 1204 n.12 (D.C. 1987).

“Thus, while the default established facts that might underlie the award of punitive damages, it did

not in itself establish [Defendants’] liability therefor.” Id. The question of punitive damages is a

close one, given Defendants’ professional obligations and the Complaint allegations. Nonehtheless,

the Court finds that the compensatory damages award is sufficient to deter Defendants from such

conduct in the future and that punitive damages are not warranted.

               A memorializing Order accompanies this Memorandum Opinion.



Date: January 28, 2009                                               /s/
                                                   ROSEMARY M. COLLYER
                                                   United States District Judge




                                                  -5-
