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ERWIN v. ALLIED VAN LINES

March 18, 1965

JONES E. ERWIN, PLAINTIFF,
v.
ALLIED VAN LINES, INC., GEORGE H. BUERGI D/B/A BENTON VAN & STORAGE CO., AND JAMES HUGH RAY, DEFENDANTS.



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 controversy.

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

The amount in controversy should be determined from the standpoint of the plaintiff. 1 Moore's Federal Practice, 2d Ed., p. 827, Sec. 0.91(1). "* * * the status of the case as disclosed by the plaintiff's complaint is controlling in the case of a removal, since the defendant must file his petition before the time for answer or forever lose his right to remove." The prayer of the complaint or the amount demanded by plaintiff determines the amount in controversy unless it appears to a reasonable certainty that the plaintiff could not recover the requisite jurisdictional amount. The plaintiff after removal cannot by stipulation or amendment reduce his claim below the requisite amount and deprive the District Court of jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 291, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

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. said:

    "* * *, 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
  not involved."

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 ...

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