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Dykstra v. Rich Neck Corp.

United States District Court, E. D. Virginia, Richmond Division
Sep 30, 1975
68 F.R.D. 572 (E.D. Va. 1975)

Opinion

         In a diversity case, defendant challenged the jurisdictional amount. The District Court, Warriner, J., on motion to dismiss, held that where plaintiff stated he was still seeking a real estate expert to support his allegation of the jurisdictional amount, the court would order that the complaint would stand dismissed for lack of jurisdiction unless it was made to appear by affidavit or otherwise within ten days that plaintiff had a colorable claim in excess of the jurisdictional amount; in view of doubtful recovery in excess of $10,000, if plaintiff recovered less than $10,000 for reasons set forth in defendant's brief, the court would seriously consider imposition of sanctions provided by statute.

         Complaint to stand dismissed, subject to condition.

         

          Melvin R. Manning, Richmond, Va., for plaintiff.

          W. Garland Clarke, Lively, Va., for defendant.


         MEMORANDUM

         WARRINER, District Judge.

         Jurisdiction of the Court is posited under 28 U.S.C. § 1332. Defendant filed its motion to dismiss under Fed.R.Civ.P. 12(b) with supporting affidavit and brief. Defendant alleged that the amount in controversy did not exceed the value of $10,000.

         For purposes of deciding this motion the facts are that defendant was obligated to plaintiff to ‘ cut and gravel’ a certain road through real estate belonging to plaintiff. Upon defendant's failure to carry out its obligation plaintiff filed its complaint alleging it would incur expenses in excess of $10,000 ‘ in having the work performed as specified.’ Plaintiff also alleged that real estate affected by the road could have been sold for $31,000 but that in the absence of the road the real estate has ‘ been rendered and now stands worthless.’ Accordingly, plaintiff seeks damages in the amount of $41,000.

         Defendant's affidavit says that it has virtually complated the road under a contract that did not exceed $5,000. Defendant shows by citation of authority that plaintiff is not entitled to damages for breach of contract that include diminution of the real estate in addition to the cost of mitigation of damages— which cost the affidavit shows plaintiff did not incur in any event.

          Defendant having challenged the jurisdictional amount, the burden rested upon plaintiff to justify its claim of jurisdiction. Nixon v. Loyal Order of Moose, Lodge 750, 285 F.2d 250 (4th Cir. 1960); Columbia Pictures Corp. v. Rogers, 81 F.Supp. 580 (S.D.W.Va.1949). Plaintiff attempted to carry this burden by an unsworn, two-paragraph ‘ Answer to Motion to Dismiss' stating that the evidence will ‘ clearly establish damages in excess of the jurisdictional requirement of $10,000.’ This answer stated that an affidavit would be filed supporting the above quoted allegation, but no such affidavit has been forthcoming. At a subsequent status conference plaintiff, through counsel, stated he was still seeking a real estate expert to support his allegation of jurisdictional amount.

          Fairness to defendant might dictate that the Court dismiss for lack of jurisdictional amount on this state of the record. Rather than to do this, however, the Court will state that unless it be made to appear by affidavit or otherwise within ten (10) days of the entry hereof, that plaintiff has a colorable claim in excess of the jurisdictional amount, the complaint will stand dismissed for lack of jurisdiction. The Court further holds that the doubtful nature of the jurisdictional amount having been timely raised and the law rendering extremely doubtful recovery in excess of $10,000 having been explicated in defendant's brief, if it should develop that plaintiff recovers less than $10,000 for the reasons set forth in defendant's brief the Court will seriously consider imposition of the sanctions provided for in 28 U.S.C. § 1332(b).


Summaries of

Dykstra v. Rich Neck Corp.

United States District Court, E. D. Virginia, Richmond Division
Sep 30, 1975
68 F.R.D. 572 (E.D. Va. 1975)
Case details for

Dykstra v. Rich Neck Corp.

Case Details

Full title:Ronald W. DYKSTRA v. RICH NECK CORPORATION.

Court:United States District Court, E. D. Virginia, Richmond Division

Date published: Sep 30, 1975

Citations

68 F.R.D. 572 (E.D. Va. 1975)