Opinion
Hyland and Hyland, Cleveland, Ohio, for plaintiff.
William H. Carpenter, Arter, Hadden, Wykoff & Van Duzer, Cleveland, Ohio, for defendant.
KALBFLEISCH, District Judge.
This is an action for property damage, medical expenses, and loss of the services and consortium of plaintiff's wife, as a result of an automobile collision with defendant. Defendant has moved for dismissal on the ground that the amount actually in controversy is less than $10,000. In support of his motion, defendant offers a certified copy of a petition filed by this plaintiff in the Court of Common Pleas of Cuyahoga County on October 15, 1959. That petition appears to allege the same cause of action as in this case, but there a judgment of $6,500 was sought. Defendant concludes that the prayer for $10,000 in this case was not made in good faith but only to confer jurisdiction upon this Court.
The complaint on its face shows that the amount in controversy is $10,000. Absent compelling evidence to the contrary, this allegation must be accepted as true. 5 Cyclopedia of Federal Procedure, 3d Ed., 15.447. The fact that plaintiff may have asked only $6,500 in another lawsuit involving the same cause of action does not constitute proof that $6,500, rather than $10,000, is the correct amount in controversy, or that plaintiff acted in bad faith. Since the filing of the state court proceeding, the condition of plaintiff's wife may have worsened, latent injuries may have become apparent, or plaintiff may have been required to incur additional expenses. The motion, therefore, will be overruled.