533 F.2d 994 (6th Cir. 1976), 75-1589, Worthams v. Atlanta Life Ins. Co.

Docket Nº:75-1589.
Citation:533 F.2d 994
Party Name:Willie WORTHAMS, Plaintiff-Appellant, v. ATLANTA LIFE INSURANCE COMPANY, Defendant-Appellee.
Case Date:April 15, 1976
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 994

533 F.2d 994 (6th Cir. 1976)

Willie WORTHAMS, Plaintiff-Appellant,

v.

ATLANTA LIFE INSURANCE COMPANY, Defendant-Appellee.

No. 75-1589.

United States Court of Appeals, Sixth Circuit

April 15, 1976

Argued Feb. 18, 1976.

Page 995

Richard Hulon Donnell, Jackson, Tenn., for plaintiff-appellant.

John R. Moss, Moss & Benton, Jackson, Tenn., for defendant-appellee.

Before PHILLIPS, Chief Judge, and WEICK and LIVELY, Circuit Judges.

PHILLIPS, Chief Judge.

Two questions are presented on the appeal in this diversity case:

(1) Is the action for libel barred by the Tennessee one-year statute of limitations, or was the period of limitation tolled by the Tennessee "saving statute," T.C.A. § 28-106. 1

Page 996

The District Court held that the action for libel is barred by limitation and is not "saved" by T.C.A. § 28-106. We affirm.

(2) Is the District Court without jurisdiction because, after the libel action has been eliminated, the amount in controversy is less than $10,000? The District Court dismissed for lack of jurisdiction, on the ground that less than $10,000 is involved. 28 U.S.C. § 1332(a). We reverse and remand.

On August 5, 1971, appellant Willie Worthams filed a pro se complaint in the District Court, alleging wrongful termination of Worthams' services as staff manager of the Jackson, Tennessee, District for the defendant insurance company. Worthams charged that defendant's falsification of records, failure of communication, investigation or fair hearing, and its filing a letter of protest with the Tennessee department having jurisdiction over unemployment compensation, caused him to suffer economic hardship, "mental and emotional distress arising from the effects of family and marital troubles largely due to the embarrassment of dismissal and lower standard of living than my family was accustomed." Worthams sought commissions due him worth $479, a pay differential of $520 and $100,000 for "economic and financial hardships." The insurance company filed a motion to dismiss for failure to state a claim upon which relief could be granted. The District Court entered an order on January 21, 1972, dismissing the action without prejudice.

On January 5, 1973, appellant, aided by counsel, filed an "amended" complaint which set out claims for relief with greater specificity than the 1971 pro se complaint. A significant portion of this "amended" complaint dealt with a claim for libel against the insurance company. Worthams stated that the Company:

(K)nowingly and maliciously did cause a damaging report, containing false and untrue statements regarding plaintiff's association with said defendant company and credit standing, with the intention of causing plaintiff grave harm by closing all chances of plaintiff getting employment or business credit, to be given to the Jackson Retail Credit Bureau.

Damages were claimed under the libel count in the sum of $100,000. Additional recovery was sought for unpaid commissions and a bond deposit, a sum totaling $7,900. The District Court sustained the motion of the insurance company for summary judgment as to the libel claim on the ground that it was first raised in the complaint filed January 5, 1973, not within the statutory limitation period for filing such actions under T.C.A. § 28-304.

Subsequent to this first order, defendant filed a motion to dismiss the entire action for lack of jurisdiction since the amount in controversy was now less than $10,000. The District Court concluded that "since the claims for libel and slander were barred by the statute of limitations at the time they were filed, they cannot properly be considered in determining whether the jurisdictional amount is involved." Therefore, since the remainder of the claims totaled $7,900, the District Court dismissed Worthams' action for lack of jurisdictional amount. Worthams appeals to this court from both orders.

I.

Worthams claims that the January 5, 1973, complaint was an "amended complaint" within the definition of Fed.R.Civ.P. 15(c). We find no merit in this contention. The original complaint was disposed of by order of dismissal, without prejudice, for failure to allege sufficient facts to constitute a cause of action against the insurance company. The second complaint was entitled "amended complaint" and Worthams...

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