
USCA1 Opinion

	




          Jun 30, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                       ____________________        No. 95-1475                                     ROY A. DAY,                                Plaintiff, Appellant,                                          v.                               KENZO NAKAMURA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Roy A. Davis, pro se, on motion for summary reversal.            ____________            Marshall  D. Stein and  Cherwin &  Glickman on  motion for summary            __________________      ___________________        affirmance and memorandum in support  of motion for summary affirmance        for appellees.                                 ____________________                                 ____________________                      Per  Curiam.    Plaintiff-appellant,  Roy  A.  Day,                      ___________            appeals pro  se from  the district court's  dismissal of  his                    ___  __            complaint for lack of subject matter jurisdiction pursuant to            Fed. R. Civ. P.  12(b)(1).  Appellees have moved  for summary            affirmance.    Day  has  moved  for  summary  reversal.    We            summarily affirm the dismissal of this complaint.                              I.  Diversity Jurisdiction                                  ______________________                      "Once challenged,  .  . .  , the  party seeking  to            invoke   jurisdiction  has  the   burden  of   alleging  with            sufficient particularity the facts  indicating that it is not            a legal  certainty  that the  claim  involves less  than  the            jurisdictional  amount.   A  party may  meet  this burden  by            amending   the  pleadings   or  by   submitting  affidavits."            Department of Recreation & Sports  v. World Boxing Ass'n, 942            _________________________________     __________________            F.2d 84, 88 (1st Cir. 1991).                      Day  has failed  to meet  his burden.   He  did not            amend  the  pleadings or  submit  affidavits  in response  to            appellees' motion  to dismiss.  Although  the complaint seeks            $180,000 in compensatory damages,  the entire purchase  price            of  the computer  was only  $2,385.   Therefore, even  if the            inability to purchase additional memory rendered the computer            completely  useless  (which  Day  admits  it  did  not),  the            compensatory  damages  would  not  approach  $50,000.     The            complaint does not allege lost profits or other consequential            business losses.                                         -2-                      Whether  Massachusetts or  Florida law  controls (a            matter about which the  parties disagree), damages for mental            pain and  suffering and punitive damages  are not recoverable            on these facts.   Therefore,  Day has failed  to plead  facts            indicating that it is  not a legal certainty that  his claims            involve less than $50,000.                          II.  Federal Question Jurisdiction                               _____________________________                      Defendant's motion to dismiss was  pursuant to both            Fed.  R. Civ. P. 12(b)(1)  and 12(b)(6).   The district court            dismissed the complaint pursuant to 12(b)(1).   Day argues on            appeal  that the  adequacy  of the  jurisdictional amount  is            "moot"  because the  complaint arises  under the  Sherman and            Clayton Acts  and that, therefore, there  is federal question            jurisdiction pursuant to 28 U.S.C.   1331.  We may affirm the            district  court's  12(b)(1)  dismissal on  any  independently            sufficient ground,  including failure  to state a  claim. See                                                                      ___            Watterson v. Page, 987 F.2d 1, 7 n.3 (1st Cir. 1993).            _________    ____                      The  basis of  Day's claims  under the  Sherman and            Clayton  Acts is  that  defendants engaged  in the  following            "monopolistic practices":                       deny[ing]  .  .  .   citizens  additional                      `random accessory memory'  . . .  for NEC                      computers at a reasonable and competitive                      purchase price, solely for the purpose to                      force, coerce and intimidate the citizens                      to purchase a `new NEC computer' by using                                     ________________                      correspondence  which   is  replete  with                      `falsehoods,   fraud,  misrepresentations                      and half-truths,'. . . .                                         -3-            As the appellees point out in their Opposition to Appellant's            Motion for Summary Reversal, the claim is illogical:  "[W]ith            such a range of  alternative[] [lap top computers] available,            appellant's  dissatisfaction with  the cost of  enhancing the            memory  on his NEC machine  would result in  his purchasing a            competitor's product, rather than being forced to buy another            product from NEC."                        The complaint  alleges  that NEC  sells  additional            memory  for  the  286V  at  unreasonable  and  noncompetitive            prices.    It also  alleges, however,  that  NEC --  far from            having a monopoly  in the  supply of additional  RAM for  the            286V -- does not have the  RAM for sale at all.  The  alleged            "monopolistic practices" could not  even conceivably have the            effect  of restraining  competition or  creating a  monopoly.            The complaint's vague  and contradictory allegations fail  to            state a claim under the federal antitrust laws.                      Accordingly, the district court's dismissal of this            complaint is affirmed.  See Loc. R. 27.1.  Appellees' request                         ________   ___            for an injunction restricting Day's filings with the district            court  is denied.    Appellees may  file  a motion  with  the                      ______            district court  seeking an injunction from  future filings if            the need arises.                                         -4-
