Dassinger v. South Central Bell Tel. Co., 74-2171

• Decision Date: 20 December 1974
• Docket Number: No. 74-2171,74-2171
• Citation: 505 F.2d 672
• Parties: Peter DASSINGER, d/b/a Peter Dassinger Modeling Studios, Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee. Summary Calendar.* *Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 672

505 F.2d 672

Peter DASSINGER, d/b/a Peter Dassinger Modeling Studios Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee.

No. 74-2171 Summary Calendar.* *Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

United States Court of Appeals, Fifth Circuit.

Dec. 20, 1974.

Darleen M. Jacobs, New Orleans, La., for plaintiff-appellant.

Raymond J. Salassi, Jr., New Orleans, La., for defendant-appellee.

Before WISDOM, GOLDBERG and GEE, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Dassinger owns and operates a modeling and motion picture studio in New Orleans, Louisiana. At various times between Cecember 1, 1970, and September 30, 1971, potential clients contacted defendant-appellee South Central Bell's (Bell's) directory assistance service and asked for plaintiff's business number. Dassinger alleges that the Bell operators on several of those occasions refused to impart the requested information, on the ground that the number was a semi-private one which could not be given out to the general public. After some of these frustrated customers contacted Dassinger by other means and informed him of the difficulty, plaintiff filed this lawsuit in federal district court on the basis of the federal diversity jurisdiction, complaining that the conduct of Bell's employees had caused some potential clients to go elsewhere with lucrative contracts, to his great financial and emotional detriment. On April 4, 1974, the district court dismissed the complaint for want of jurisdiction and at the same time granted Bell's motion for summary judgment against Dassinger. We believe that the district court should neither have dismissed the suit for lack of jurisdiction nor have awarded summary judgment to Bell. We reverse.

The jurisdiction of a federal court in a diversity case such as this one is limited to actions in which the matter in controversy exceeds $10,000. ¹ Dassinger has made a formal allegation that the amount in controversy does in fact exceed $10,000 and he has supplemented that formal allegation with two affidavits from frustrated clients tending to show that the conduct of Bell's employees At various times between December 1, with a total face value of $50,000. ² Unfortunately, plaintiff has not indicated how much of this $50,000 would have been profit. Bell contends, on the basis of Dassinger's unhappy business history, that whatever profits Dassinger might have made on the contracts would not have satisfied the requirements of federal jurisdiction.

Althouth discretion is vested in the trial court to determine whether the claim meets the jurisdictional amount, Gibbs v. Buck, 1939, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111, the Supreme Court has formulated a rule of liberality to govern dismissal for want of jurisdiction. The amount stated in the complaint is itself dispositive of jurisdiction, unless it appears or is in some way shown that the amount stated is not claimed in good faith. For these purposes, good faith is deemed to be lacking only when it appears to a legal certainty that the claim is really for less than the jurisdictional amount. Horton v. Liberty Mutual Ins. Co., 1961, 367 U.S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890, 894; St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845, 848; Burns v. Anderson, 5 Cir. 1974, 502 F.2d 970; Mas v. Perry, 5 Cir. 1974, 489 F.2d 1396.

It does not appear that plaintiff's jurisdictional claim here was made in bad faith or that, if his evidence is taken as true and viewed most favorably to him, it can be said to a legal certainty that a reasonable jury could not have found that the loss by Dassinger of the two contracts resulted in damages sufficient to invoke federal jurisdiction. See Lee v. Kisen, 5 Cir. 1973, 475 F.2d 1251; Opelika Nursing Home, Inc. v. Richardson, 5 Cir. 1971, 488 F.2d 658. It follows that the trial court should not have dismissed the complaint for lack of jurisdictional amount.

Turning to the trial court's order of summary judgment against plaintiff, we note at the outset that the court had already found that it had no jurisdiction over the action, so that it had no power to render a judgment on the merits against either party. Heyward v. Public Housing Authority, 5 Cir. 1956, 238 F.2d 689; 10 C. Wright & A. Miller, Federal Practice & Procedure 2713. Even if the district court had originally found that it had...