Opinion
No. AC/793.
September 13, 1961.
Samuel B. Ray, Jr., Barnwell, S.C., for plaintiff.
Solomon Blatt, Sr., Barnwell, S.C., for defendant.
The above case was commenced in the court of common pleas for Barnwell County, South Carolina, and removed by the defendant American National Growers Corporation (now known as Blue Goose Growers, Inc.) to the United States District Court for the Eastern District of South Carolina, on August 10, 1961, upon the ground of diversity of citizenship and jurisdictional amount.
The complaint at the time of the removal of the action to this court sought damages in the amount of $25,000. After the removal of the cause to this court the plaintiff on August 17, 1961, served upon the defendant an amended complaint reducing the ad damnum from $25,000 to $9,500.
The case is before me upon the motion of the plaintiff to remand the case to the court of common pleas for Barnwell County upon the ground that the amount involved in this controversy after the service of the amended complaint is less than $10,000, exclusive of interest and costs, and, also, upon the motion of the defendant to dismiss the amended complaint.
Plaintiff may under the Rules of Civil Procedure, rule 15, serve an amended complaint on the defendant at any time before answer. However, it is well settled that a plaintiff cannot by amendment reduce the ad damnum in order to defeat federal jurisdiction after the removal of a cause from the state court to the federal court. Hayward v. Nordberg Mfg. Co., 6 Cir., 85 F. 4; Daland v. Hewitt Soap Co., D.C., 27 F. Supp. 482; St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845.
The motion to remand must, therefore, be denied.
Therefore, it is ordered, that the motion to remand be and the same is hereby denied.
It is further ordered, that the motion to dismiss the amended complaint be and the same is hereby denied.
The answer of the defendant to the complaint will stand as the answer of the defendant to the amended complaint.