The opinion of the court was delivered by: John E. Miller, Chief Judge.
Plaintiff, James E. Erwin, has filed a motion to remand.
Plaintiff does not dispute that diversity of citizenship
exists, but contends that the amount in controversy does not
exceed $10,000, exclusive of interest and costs.
The plaintiff commenced the action by filing his complaint
against the above named defendants in the Circuit Court of Hot
Spring County on February 23, 1965. In his complaint the
plaintiff alleged that he "has been damaged in the sum of
$15,000, all as a direct and proximate result of the negligence
and carelessness of the defendants as above alleged." In the
prayer of the complaint the plaintiff prayed for "judgment
against the defendants and each of them jointly and severally
in the sum of $10,000, together with all costs herein expended
and for any and all other relief to which he may be entitled."
The named defendants on March 9, 1965, filed their petition for
removal. On March 10, 1965, the plaintiff served and filed his
motion to remand.
The defendants have not filed any response to the motion to
remand, but even if the motion to remand is defective or had
not been filed, the court sua sponte may remand the suit under
28 U.S.C. § 1447(c). 1A Moore's Federal Practice, 2d Ed., Sec.
0.168(4-1). See, also, Garroutte v. General Motors Corp.,
(W.D.Ark. 1959) 179 F. Supp. 315, 316-317; Ingram v. Sterling,
(W.D.Ark. 1956) 141 F. Supp. 786.
The question presented by the motion to remand is whether the
ad damnum allegation that the plaintiff was damaged in the sum
of $15,000 by the alleged negligent acts of the defendants or
whether the allegation of the prayer for recovery of $10,000,
exclusive of costs, controls in determining the amount in
The question of whether a civil action is removable is one for
the consideration of the federal court and is not controlled by
state law. Stoll v. Hawkeye Cas. Co., (8 Cir. 1950)
185 F.2d 96. The Federal Rules of Civil Procedure apply to civil actions
removed to the United States District Court from the state
courts "and govern procedure after removal." Rule 81(c). "* *
*, defendant was granted by Congress the right to remove the
case from the State to the Federal Court but, when it arrived
there, it was subject to the same rules of procedure as if it
had been originally sued in that court." Grivas v. Parmelee
Transportation Co., (7 Cir. 1953) 207 F.2d 334, 337. See, also,
Freeman v. Bee Machine Co., Inc., 319 U.S. 448, 452, 63 S.Ct.
1146, 1148, 87 L.Ed. 1509; Texas Employers Ins. Ass'n v. Felt,
(5 Cir. 1955) 150 F.2d 227, 231, 160 A.L.R. 931.*fn1
In the case of Iowa Central Ry. Co. v. Bacon, Admrx.,
236 U.S. 305, 35 S.Ct. 357, 59 L.Ed. 591 (1915), the complaint or
petition alleged that the estate had been damaged in the sum of
$10,000, but judgment was asked only for the sum of $1,990. The
case was removed upon petition of the defendant on the ground
of diversity of citizenship and alleged that the amount in
controversy exceeded the requisite jurisdictional amount of
$2,000. There was also involved in the case some other
procedural questions, and the court, after discussing those
questions, at page 310 of 236 U.S., at page 358 of 35 S.Ct.
"* * *, it is apparent that the case now under consideration
was not, upon the face of the record, a removable one. The
prayer for recovery was for $1,990, and consequently the
amount required to give jurisdiction to the Federal court was
In St. Paul Mercury Indemnity Co. v. Red Cab Co., supra, the
court, in discussing what a plaintiff may do to prevent
removal, said at page 294 of 303 U.S., at page 593 of 58 S.Ct.:
"If he does not desire to try this case in the federal court he
may resort to the expedient of suing for less than the
jurisdictional amount, and though he would be justly entitled
to more, the defendant cannot remove."
The court, to sustain the above quotation, cited Woods v. Mass.
Protective Ass'n, (E.D.Ky. 1929) 34 F.2d 501. In Woods the
court held that a suit brought by the plaintiff as beneficiary
under a life insurance policy for the sum of $5,000, in which
judgment was sought for the sum of $3,000 only, was not
removable to the federal court because the amount sought to be
recovered was so limited, though the plaintiff acted for
express purpose of defeating federal court's jurisdiction.
In Brady v. Indemnity Ins. Co. of North America, (6 Cir. 1933)
68 F.2d 302, the plaintiff was the named beneficiary in a
$15,000 accident insurance policy issued by the defendant. She
sought to recover only $2,999.99. The case was removed and the
court, in remanding the case, held that it was the appellant's
(plaintiff's) right to determine the amount of indemnity which
she would claim, not the appellee's. When she did so and sued
therefor that amount became the sum or value in controversy.
The court at page 304 said:
"That she claimed a lesser amount than she might have claimed
for the purpose of preventing removal is not in our opinion
important. She had the right to sue for this lesser amount. Her
demand for such an amount was justiciable in the state court;
it was not justiciable in the federal court. Having the right
to determine the amount she would claim, the filing of a suit
for such ...