Opinion
CIVIL NO. AMD 01-1078.
Filed: April 13, 2001
MEMORANDUM
I have observed that:
The decades-old struggle of many plaintiffs to try actions in state court, against the vigorous efforts of many defendants to remove cases to federal court for trial, has never been an evenly-matched contest. This is partly because plaintiffs have the benefit of (1) a presumption against federal jurisdiction, which is supplemented by the (2) "general principle that the removal statute is to be strictly construed." Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1267 (3d Cir. 1994). See Murray v. State Farm Fire and Cas. Co., 870 F. Supp. 123, 124-25 (S.D.W. Va. 1994); Hill v. General Motors Corporation, 654 F. Supp. 61, 62-63 (S.D.Fl. 1987). Cf. Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994).
Prevas v. Checkmate Inves. Servs., Inc., 951 F. Supp. 568, 569 (D.Md. 1996). The validity of this truism is once again made plain in this case.
Plaintiffs Robert and Mary Pencarski, husband and wife, filed this one count motor tort damages action in the Circuit Court for Baltimore County against defendant Robert M. O'Kelly, the operator of the vehicle which allegedly collided with the vehicle operated by Robert Pencarski, and the owner of the O'Kelly vehicle, Millis Transfer, Inc. The complaint contains the customary allegations found in motor tort claims, and concludes with the following prayer for damages:
Although Mrs. Pencarski is named as a plaintiff, she is not otherwise mentioned in the body of the state court complaint and, specifically, that complaint does not contain a claim for loss of consortium, which, under Maryland law, is a joint claim owned by both parties to the marriage.
WHEREFORE, the Plaintiff, Robert Pencarski, demands judgment against the Defendants, Robert Michael O'Kelly and Millis Transfer, Inc., and each of them, in the amount of Forty Thousand Dollars ($40,000), plus interest and cost of this action.
Complaint at (unnumbered) page 3(emphasis added).
Seizing upon the italicized phrase, "and each of them," defendant Millis Transfer has interpreted the complaint as seeking $80,000 in damages, rather than the $40,000 that plainly has been requested. In thus seeking to mine this seeming ambiguity, Millis Transfer has made a desperate grab for federal diversity of citizenship jurisdiction. This construction of the complaint is rejected as patently erroneous, if not frivolous.
It is perfectly obvious on the face of the complaint that plaintiff(s) have elected to limit their damages in this case to $40,000. As a matter of law, the jurisdictional amount required for removal, $75,000, see 28 U.S.C. § 1332(a), has not been put in issue. Indeed, it is practically insulting to plaintiff's counsel to suggest that, although he wished, perhaps, to remain in state court, he foolishly limited his damages to $80,000, through a convoluted request for "2x$40,000," rather than by simply seeking $74,999. Accordingly, the case will be remanded sua sponte because jurisdiction is absent on the face of the notice of removal (referred to by defendant as a "Petition for Removal," see 28 U.S.C. § 1446(a),(b)) as well as on the face of the state court complaint. An Order follows.
ORDER
In accordance with the foregoing Memorandum, it is this 13th day of April, 2001, by the United States District Court for the District of Maryland, ORDERED
(1) That, sua sponte, because subject matter jurisdiction under 28 U.S.C. § 1332 and 441 is plainly absent, this case is REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY; and it is further ORDERED
(2) That the Clerk of the Court shall CLOSE THIS CASE and TRANSMIT a copy of the foregoing Memorandum and this Order to the attorneys of record.