JACOB P. HART UNITED STATES MAGISTRATE JUDGE
Before this Court is Defendant Axis Gloucester City Storage's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiffs' Response thereto and Defendant's Reply to Plaintiff's Response. For the reasons stated below, we have considered Plaintiffs' Opposition as a Cross Motion for Partial Summary Judgment. Defendant's motion is denied and partial summary judgment is granted in favor of Plaintiffs.
On November 16, 2005, Plaintiff Leeds entered into a contract with Defendant to rent a storage facility, in which he was to store property belonging to Plaintiff Consolidated Marine Services, Inc. ("Consolidated Marine"). Over the thirteen months Plaintiffs rented the storage locker, Defendant sent two default notices to Plaintiffs. On July 5, 2007, Defendant sent Consolidated Marine a certified letter notifying them of their failure to pay rent for June 2007 and of a sale scheduled for August 21, 2007. Plaintiff sent a check for June and July rent, which was credited to the account on July 9, 2007.
Mr. Leeds moved to Texas in April 2007 and his wife began opening invoices for Consolidated Marine in October 2007. On November 2, 2007, Defendant sent another letter via certified mail notifying Plaintiffs of their failure to pay rent for October 2007. The letter indicated that a sale would be held on December 18, 2007. Mrs. Leeds sent Defendant a payment in the amount of $185, by a check dated November 14, 2007, which Defendant credited to the account on November 16, 2007. Defendant published the notice of sale in the Camden Courier Post on December 8 and December 15, 2007. On December 18, 2007, Defendant held an auction of the contents of Plaintiffs' storage locker and the contents of the locker were sold to William Sylvester for $5. On December 31, 2007, Mrs. Leeds, who was unaware that the property had been sold, sent Defendant a payment of $190.00, with "Nov." written in the memo line of the check.
Plaintiffs allege that Defendant sold the property they had stored in Defendant's rental storage facility in violation of the Pennsylvania Self Storage Act. Plaintiffs also seek damages for conversion. Plaintiffs allege that the value of the property sold at the auction was in excess of $100,000. An arbitration hearing was held on January 15, 2009, following which the arbitrators awarded Plaintiffs damages of $65,189.68. Defendant appealed and now seeks summary judgment. Plaintiffs filed opposition to Defendant's motion, in which they asked that the court direct that the defendant violated the Pennsylvania Self Storage Act, but did not formally move for partial summary judgment. Defendant filed a reply to the opposition. This court notified both counsel by telephone that we were considering treating Plaintiff's opposition as a cross-motion for partial summary judgment, allowing Defendant to submit an additional response.
Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. "It has long been established that, under the right circumstances, district courts are entitled to enter summary judgment sua sponte." Gibson v. Mayor and Council of Wilmington, 355 F.3d 215, 222 (3d Cir.2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548 (1986) ("Our conclusion is bolstered by the fact that district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence."). In Gibson, the Court of Appeals for the Third Circuit pointed to a quote from an earlier Third Circuit case which held that a sua sponte grant of summary judgment was inappropriate where the party against which it was granted was not afforded the ten days notice required by Fed. R. Civ. P. 56(c). Gibson, 355 F.3d at 223, quoting Otis Elevator Company v. George Washington Hotel Corporation, 27 F.3d 903, 910 (3d Cir.1994). However, the Gibson court found an exception to the notice requirement and held that sua sponte summary judgment could be granted even without ten-days notice, where (a) the point at issue is purely legal; (b) the record is fully developed and (c) the failure to give notice does not prejudice the party against whom summary judgment was granted. 355 F.3d at 224. Finding that all three factors were present in Gibson, the Third Circuit did not determine whether all three factors were required in the absence of notice or if one would be sufficient. Id. The Third Circuit followed the First Circuit in finding that the appropriate definition of notice is such that "the targeted party had reason to believe the court might reach the issue and received a fair opportunity to put its best foot forward." Id. at 223 (quoting Leyva v. On the Beach, Inc., 171 F.3d 717, 720 (1st Cir. 1999) (internal citations omitted). "Where it appears clearly upon the record that all of the evidentiary materials that a party might submit in response to a motion for summary judgment are before the court, a sua sponte grant of summary judgment against that party may be appropriate if those materials show that no material dispute of fact exists and that the other party is entitled to judgment as a matter of law." Daraji v. Monica, Civ A. No. 07-1749, 2008 WL 183643, 2 (E.D. Pa. Jan 18, 2008) (quoting Gibson, 355 F.3d at 224).
First, Defendant argues that the Court lacks jurisdiction because Plaintiff cannot satisfy the jurisdictional requirements for a diversity action in federal court. He argues that the damages Plaintiffs seek fail to meet the statutory minimum of $75,000.
When the court can determine "with legal certainty" that the amount in controversy does not satisfy the jurisdictional minimum, dismissal is appropriate. Christman v. Cigas Machine Shop, Inc., 293 F. Supp. 2d 538, 541 -542 (E.D. Pa. 2003). "The test then is not what amount the plaintiff claims in the ad damnum clause of his complaint, but rather, whether it appears to a 'legal certainty' that he cannot recover an amount above the jurisdictional minimum." Nelson v. Keefer, 451 F.2d 289, 293 (3d Cir.1971).
Defendant claims that Plaintiffs have failed to produce proof of what was actually in the storage unit and has not produced any proof of the value of the contents other than self serving lists that Mr. Leeds prepared for the purpose of litigation. Defendant asserts that "[i]t is well settled under Pennsylvania law that a plaintiff must produce expert testimony to support his claim for damages when the value of what is claimed ...