Burton Lines, Inc. v. Mansky
| Decision Date | 08 March 1967 |
| Docket Number | No. C-249-D-66.,C-249-D-66. |
| Citation | 265 F. Supp. 489 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | BURTON LINES, INC., Plaintiff, v. Leon MANSKY, Defendant, and Third-Party Plaintiff, v. Jimmie Lee LIPSCOMB, Latta Transport Company, Inc., and Samuel Harry Dew, Third-Party Defendants. |
E. C. Bryson, Jr., James T. Hedrick, Newsom, Graham, Strayhorn & Hedrick, Durham, N. C., for plaintiff and Lipscomb, third-party defendant.
H. E. Stacy, Jr., McLean & Stacy, Lumberton, N. C., Geo. W. Miller, Jr., Corcoran, N. C., for defendant.
John W. Campbell, Lumberton, N. C., A. L. Meyland, G'boro, N.C., for Latta Transport Co., Inc. and Samuel Harry Dew, third-party defendants.
The single question for decision is whether this Court has diversity jurisdiction to hear and determine the issue involved in this litigation. For the reasons hereinafter stated, the Court is of the opinion that jurisdiction is lacking, and that the matter should be remanded to the Superior Court of Durham County, North Carolina, for trial.
On November 29, 1966, the plaintiff, Burton Lines, Inc., a North Carolina corporation, instituted this action in the Superior Court of Durham County against the defendant, Leon Mansky, a citizen and resident of the State of Pennsylvania, to recover property damage and loss of business profits in the amount of $400.00, growing out of a motor vehicle collision.
On December 20, 1966, the defendant, pursuant to 28 U.S.C. § 1441, filed a petition for removal of the action to this court, alleging diversity of citizenship and an amount in controversy, exclusive of interest and costs, in excess of $10,000.00. The removal petition further alleged that the jurisdictional amount in controversy arose by reason of the fact that defendant sustained injuries and damages as a result of the collision in an amount not less than $50,000.00, and that he was compelled, under the laws of the State of North Carolina, to assert his claim for injuries and damages by way of counterclaim in the action instituted by the plaintiff in the Superior Court of Durham County. Upon the filing of the removal petition, the matter was duly removed to this court.
On January 5, 1967, the plaintiff moved that the action be remanded to the Superior Court of Durham County, North Carolina, for all further proceedings, contending that this court lacks jurisdiction by reason of the fact that the requisite jurisdictional amount is not present.
On January 17, 1967, the defendant filed answer and asserted a claim against the plaintiff and third party defendants, jointly and severally, in the sum of $98,149.00 for injuries and damages sustained in the collision.
In considering the question presented for determination, it is well to bear in mind that the removal statute (28 U.S.C. § 1441) must be strictly construed, and Federal courts should not extend their jurisdiction beyond the limits which the statute has defined. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1940).
Since the plaintiff only seeks the recovery of damages in the amount of $400.00, the requisite jurisdictional amount is not present in the plaintiff's claim. 28 U.S.C. § 1332(a) and § 1441 (a). Consequently, the crucial question is whether the defendant's counterclaim, even though compulsory under State practice, can be considered for the purpose of satisfying the jurisdictional amount requirement.
While there are decisions to the contrary, the better rule seems to be that "the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal." Gully v. First Nat. Bank, ...
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Larsen v. Hoffman, Civ. A. No. 76-0610
...Lines, 257 F.Supp. 941 (W.D.Mo.1966); Umbenhouser v. Mutual of Omaha Ins. Co., 298 F.Supp. 927 (W.D.Mo.1969); Burton Lines, Inc. v. Mansky, 265 F.Supp. 489 (M.D.N.C.1967); Continental Carriers, Inc. v. Goodpasture, 169 F.Supp. 602 (M.D.Ga.1959); West Virginia State Bar v. Bostic, 351 F.Supp......
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West Virginia State Bar v. Bostic, Civ. A. No. 2951.
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