                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3417
                                    ___________

Marlin E. Jones,                         *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Terry L. Burns,                          *
                                         * [UNPUBLISHED]
             Appellee.                   *
                                    ___________

                              Submitted: February 24, 2009
                                 Filed: May 12, 2009
                                  ___________

Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
                         ___________

PER CURIAM.

       Nebraska resident Marlin Jones filed a complaint based on diversity jurisdiction
against Iowa resident Terry Burns, in which he raised a claim of libel based on a letter
that Burns had written to a Housing and Urban Development official who was
investigating Jones’s eviction from low-income housing. Jones sought $1 million in
actual, compensatory, and punitive damages. Although the parties filed cross-motions
for summary judgment on the merits, the district court sua sponte dismissed the
complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(h)(3), concluding that it appeared to a legal certainty that the amount in
controversy did not exceed $75,000. Jones appeals. We reverse and remand for
further proceedings.
       District courts have original jurisdiction of all civil actions where the amount
in controversy exceeds the sum or value of $75,000, and where the action is between
citizens of different states. 28 U.S.C. § 1332(a)(1). A complaint will be dismissed for
lack of subject matter jurisdiction if it appears to a legal certainty that the value of the
claim does not exceed $75,000, and we review such a dismissal de novo. See
Advance America Servicing of Arkansas, Inc. v. McGinnis, 526 F.3d 1170, 1173 (8th
Cir. 2008).

        Although Jones cannot receive punitive damages, see Braesch v. Union Ins.
Co., 464 N.W.2d 769, 777 (Neb. 1991) (punitive damages are not allowed in
Nebraska), disapproved of on other grounds, Wortman v. Unger, 578 N.W.2d 413
(1998), he can seek special damages, as well as damages for harm to his reputation
and mental suffering, see McCune v. Neitzel, 457 N.W.2d 803, 811 (Neb. 1990)
(listing damages that can be recovered in defamation action). Much of the
information in the record concerns the related matter of Jones’s eviction, but Jones
alleged that the letter at issue caused him mental anguish, injured his good name and
reputation, and damaged his relationship with the Department of Housing and Urban
Development and with a senator whom he had contacted for help. He also submitted
letters from his treating mental-health professionals in which they indicated that his
depression had been exacerbated by the allegedly false statements in the letter, which,
among other things, accused him of extortion.

      We express no opinion on whether Jones will be able to recover more than
$75,000 in damages, but we cannot say at this point in the litigation that it appears to
a legal certainty that Jones cannot recover more than $75,000, see McCune, 457
N.W.2d at 811 (due to interests involved in defamation action and difficulty of proof,
amount of damages is almost entirely in jury’s discretion), particularly where he was
not given the opportunity to present evidence related to damages, cf. James Neff
Kramper Family Farm P’ship v. IBP, Inc., 393 F.3d 828, 831 (8th Cir. 2005) (noting



                                            -2-
that if court questions whether amount alleged is legitimate, party invoking federal
jurisdiction must prove requisite amount by preponderance of evidence).

       Accordingly, we reverse the district court’s dismissal order and remand for
further proceedings. We deny Jones’s motion on appeal to file supplemental
evidence.1
                      ______________________________




      1
        We reject as meritless Jones’s remaining arguments, including his contention
that the district court abused its discretion in denying his motions for appointment of
counsel and for recusal.
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