Arnold v. Troccoli, No. 174

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , and MEDINA and MARSHALL, Circuit
Citation344 F.2d 842
Decision Date03 May 1965
Docket NumberDocket 29075.,No. 174
PartiesAnne ARNOLD and Edward E. Arnold, Plaintiffs-Appellants, v. Tex TROCCOLI, also known as "Tex Barton," Defendant-Appellee.

344 F.2d 842 (1965)

Anne ARNOLD and Edward E. Arnold, Plaintiffs-Appellants,
v.
Tex TROCCOLI, also known as "Tex Barton," Defendant-Appellee.

No. 174, Docket 29075.

United States Court of Appeals Second Circuit.

Argued November 17, 1964.

Decided May 3, 1965.


344 F.2d 843

Richard W. O'Brien, New York City, for plaintiffs-appellants.

Charles Bakos, New York City (Benson & Morris, New York City, on the brief), for defendant-appellee.

Before LUMBARD, Chief Judge, and MEDINA and MARSHALL, Circuit Judges.

LUMBARD, Chief Judge.

This appeal raises the important question of the power of the district court to dismiss diversity suits when it is apparent to a legal certainty that the plaintiff cannot recover as much as "in excess of $10,000," the minimum amount required to confer federal jurisdiction in diversity suits. See 28 U.S.C. § 1332(a).

Anne Arnold appeals from a dismissal of her diversity suit by the district court because her claim of $15,000 damages for personal injuries, allegedly suffered when the car in which she was riding, with her husband as driver, was forced to a sudden stop on September 19, 1959, at Broadway and Dyckman Street, Manhattan, was a colorable claim "asserted for the sole purpose of conferring federal jurisdiction." See Saint Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938). We affirm.

On December 2, 1959 Anne Arnold commenced suit against the defendant in the City Court (now the Civil Court) of the City of New York, in New York County, and asked $6,000 in damages. Nine months later, on September 15, 1960, she discontinued that action and a few days thereafter, on October 3, 1960, this suit was commenced in the Southern District of New York in which she demanded $15,000.1 Plaintiffs duly demanded a jury trial.

In his answer defendant denied the existence of a controversy in excess of $10,000, and later, the defendant moved to dismiss the complaint on the ground that the claim for $15,000 was colorable and fell short of the jurisdictional requirement by not being in excess of $10,000. When Judge Levet heard argument on the motion on May 15, 1964 and inquired as to the injuries, plaintiff's counsel replied that the only permanent injuries were minor headaches. After the judge was advised of the prior suit in the City Court he sought to find out what caused plaintiff to increase her claim of December 1959 from $6,000 to one for $15,000 in the following October. It developed that in an affidavit dated July 6, 1960 on his motion for leave to discontinue the City Court action, plaintiffs' counsel had stated "your deponent is informed that this case, because of the congestion of the calendar in the New York City Courts will not be reached for trial for at least two years after it is noticed for such trial, and that a much earlier trial can be had in a different Court."

The record does not give any support to a possible argument that plaintiff's injuries became more aggravated. On the contrary, the record shows an improvement in plaintiff's condition between December 10, 1959 and December 6, 1960, the dates of two examinations made by her physician, Jacob H. Friedman, as reported by letters of December 11, 19592 and December 8, 1960 to her attorney.

344 F.2d 844
The last letter states that the plaintiff "has shown improvement in her symptomatology." The only answer counsel could give to the court's repeated questioning as to why the claim had been increased from $6,000 to $15,000 was that it was the "duration of the injuries." Apparently all that happened was that Mrs. Arnold had an ordinary concussion from bumping her head on the dashboard. She never suffered any brain damage and up until 1961, and perhaps thereafter, she suffered from headaches. Medical expenses totaled $291.00, and no loss of earnings was claimed. When the court asked whether counsel wished to offer any testimony, counsel made no response. Other than the statements of counsel referred to above there was nothing before the court to explain the increase in the amount claimed

Judge Levet concluded that the plaintiff's claim of $15,000 for personal injuries was a colorable claim "asserted for the sole purpose of conferring federal jurisdiction." He noted that plaintiff's injuries had remained constant with some improvement in "symptomatology" and this fact, taken together with the statement of her counsel about desiring an earlier trial in a different court, compelled the conclusion that the claim was changed as a matter of convenience. The court dismissed the complaint with costs and without prejudice.

It is the duty of the federal courts to take note of any defects in jurisdiction of the cases before it so that the mandate of the statutes which limit jurisdiction will be observed. "The court, whether trial or appellate, is obliged to notice want of jurisdiction on its own motion." Wright, Federal Courts § 7 n. 8, at 15. Under the diversity jurisdiction accident claims are a substantial proportion of the civil litigation in the federal courts.3 It is well known that very few of the many such cases brought in the federal courts result in...

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55 practice notes
  • Gomez v. Wilson, No. 71-1484.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 23, 1973
    ...Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Gillentine v. McKeand, 426 F.2d 717, 720 (1st Cir. 1970); Arnold v. Troccoli, 344 F.2d 842, 845 (2d Cir. 1965); Spock v. David, supra note 49, at 8; Fireman's Fund Ins. Co. v. Railway Express Agency, 253 F.2d 780, 782 (6th Cir. 53 F......
  • Ballard v. Moore-McCormack Lines, Inc., No. 66 CIV 118.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 24, 1968
    ...case, the case must be dismissed. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Arnold v. Troccoli, 344 F.2d 842 (2d Cir. 1965). The effect of this dismissal is to unburden the federal court. But Jones Act cases would still remain cognizable on the admiralty si......
  • United States v. Montreal Trust Company, No. 86
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 6, 1966
    ...which clothes them with adequate authority and imposes upon them a correlative duty." (Emphasis added.) Accord, Arnold v. Troccoli, 344 F.2d 842, 845 (2 Cir. 1965); Yoder v. Assiniboine and Sioux Tribes of Fort Peck Indian Reservation, 339 F.2d 360, 362 (9 Cir. 1964); Industrial Electronics......
  • Duffany v. Van Lare, No. 72-CV-238.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • May 22, 1973
    ...and dismissal is warranted. St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Arnold v. Troccoli, 344 F.2d 842 (2d Cir. Plaintiffs assert that in the alternative their claims and those of the class may be aggregated and that combined they exceed $10,000......
  • Request a trial to view additional results
55 cases
  • Gomez v. Wilson, No. 71-1484.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 23, 1973
    ...Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Gillentine v. McKeand, 426 F.2d 717, 720 (1st Cir. 1970); Arnold v. Troccoli, 344 F.2d 842, 845 (2d Cir. 1965); Spock v. David, supra note 49, at 8; Fireman's Fund Ins. Co. v. Railway Express Agency, 253 F.2d 780, 782 (6th Cir. 53 F......
  • Ballard v. Moore-McCormack Lines, Inc., No. 66 CIV 118.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 24, 1968
    ...case, the case must be dismissed. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Arnold v. Troccoli, 344 F.2d 842 (2d Cir. 1965). The effect of this dismissal is to unburden the federal court. But Jones Act cases would still remain cognizable on the admiralty si......
  • United States v. Montreal Trust Company, No. 86
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 6, 1966
    ...which clothes them with adequate authority and imposes upon them a correlative duty." (Emphasis added.) Accord, Arnold v. Troccoli, 344 F.2d 842, 845 (2 Cir. 1965); Yoder v. Assiniboine and Sioux Tribes of Fort Peck Indian Reservation, 339 F.2d 360, 362 (9 Cir. 1964); Industrial Electronics......
  • Duffany v. Van Lare, No. 72-CV-238.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • May 22, 1973
    ...and dismissal is warranted. St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Arnold v. Troccoli, 344 F.2d 842 (2d Cir. Plaintiffs assert that in the alternative their claims and those of the class may be aggregated and that combined they exceed $10,000......
  • Request a trial to view additional results

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