Lindsey v. Alabama Tel. Co., 76-4114
| Decision Date | 12 July 1978 |
| Docket Number | No. 76-4114,76-4114 |
| Parties | Eldon LINDSEY, Plaintiff-Appellant, v. ALABAMA TELEPHONE COMPANY, a corporation, Continental Telephone Company of the South, a corporation, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Al Tidwell, John D. Self, Hamilton, Ala., for plaintiff-appellant.
John E. Grenier, Birmingham, Ala., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before TUTTLE, GEE and FAY, Circuit Judges.
This is an appeal from the dismissal of a suit originally filed by Eldon Lindsey in the Circuit Court of Marion County, Alabama, against Alabama Telephone Company and Continental Telephone Company of the South. Lindsey alleged, on behalf of a class consisting of all patrons of the two telephone companies, that defendants had wrongfully extracted additional telephone deposits by threatening to suspend service unless such deposits were paid. Defendants petitioned for removal to the United States District Court for the Northern District of Alabama. Following a hearing, the district court concluded that the $10,000 amount-in-controversy requirement under the diversity statute, 28 U.S.C. § 1332, had not been satisfied and accordingly remanded to the state court for lack of subject matter jurisdiction.
Following remand, the complaint was amended to include allegations that defendants had wrongfully discontinued services and had misrepresented their authority to charge and receive additional security deposits. Defendants again petitioned for removal, and, over the plaintiff's objection, the court concluded that it was previously in error in holding that the jurisdictional amount was not present and entered a removal order. Subsequently, the court granted defendant's motion to dismiss for failure to state a claim upon which relief could be granted.
The removal statute provides that:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a).
One of the jurisdictional requirements in any civil action in which the district court's original jurisdiction is invoked under the diversity statute is that "the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs." 28 U.S.C. § 1332. Of course, the claims of several plaintiffs, suing as members of a class, cannot be aggregated for the purpose of satisfying this jurisdictional predicate. See Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). Moreover, as the Supreme Court held in Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973):
The rule plainly mandates not only that there may be no aggregation (of claims) and that the entire case must be dismissed where none of the plaintiffs claim more than $10,000 but also requires that any plaintiff without the jurisdictional amount must be dismissed from the case, even though others allege jurisdictionally sufficient claims.
414 U.S. at 300, 94 S.Ct. at 511.
We must therefore consider whether, when the petition for removal was filed in the district court, the complaint adequately alleged the existence of the jurisdictional amount.
Obviously, in pleading his suit in the state court, the plaintiff was not seeking to satisfy any jurisdictional amount requirements. The complaint, therefore, may not be expected to read as if plaintiff had filed his original suit as a federal diversity action. Nevertheless, the amounts in controversy are adverted to in plaintiff's amended complaint. Having asserted what he contends to have been illegal conduct by the defendants, he made the following allegations dealing with dollar amounts:
7. Plaintiff avers that he and his family have been inconvenienced by the action of the defendants complained of herein and that such conduct has caused the plaintiff considerable expense and worry. That the plaintiff lost work and income because of his involvement in this controversy and claims damages in the amount of One Thousand and No/100 ($1,000.00) Dollars in compensation therefor.
8. Plaintiff avers that he and his family have been embarrassed, humiliated, and publically ridiculed by defendants' conduct and claims damages therefor of One Thousand and No/100 ($1,000.00) Dollars.
9. Plaintiff avers that certain other class members have paid the amount demanded by...
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