Opinion
Civil Action No. 3:99CV-14-S
November 12, 1999.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion of the Plaintiffs, Mark and Rosemarie Arsenault, to Remand this diversity action to the Circuit Court for Oldham County, Kentucky. Plaintiffs assert that the amount in controversy does not meet the jurisdictional requirement of $75,000 under 28 U.S.C. § 1332. For the reasons below, Plaintiffs' motion will be denied.
The Complaint charges the Defendant, PNC Mortgage Corporation of America ("PNC"), with breach of contract, fraudulent misrepresentation, violation of the Kentucky Consumer Protection Act, and violation of consumer protection acts of other states. The damages sought are unspecified, but Plaintiffs state that they are seeking "on behalf of themselves and on behalf of each class member (a) specific performance (b) recovery of actual and compensatory damages, and (c) recovery of punitive damages." Complaint at 1.
Plaintiffs have asserted that their actual damages are only $33,900, and that any punitive damages they may receive are purely speculative and should not be used to meet the amount in controversy requirement of $75,000. Plaintiffs have not stipulated that their total damages do not exceed $75,000 exclusive of interest and costs. The fact that the plaintiffs have unliquidated claims for punitive damages is not as easily disregarded as the plaintiffs suggest. They would have the Court ignore the punitive claims when analyzing the amount in controversy. Yet they would be free to value these claims in almost any amount later. The notion of having one's cake and eating it too comes to mind. As a legal proposition, we must consider the punitive claims in determining the amount in controversy, since we have not been advised that such damages are unrecoverable. Klepper v. First American Bank, 916 F.2d 337, 341 (6th Cir. 1990) . Since we are not convinced that the potential for punitive damages is so slight that it is unlikely an award would be made in excess of $41,100, we conclude that the motion to remand must be denied.
Therefore, IT IS HEREBY ORDERED AND ADJUDGED that Plaintiffs' Motion to Remand is DENIED.