JE SIEBEN CONST. CO. v. City of Davenport

• Decision Date: 18 August 1980
• Docket Number: Civ. No. 80-28-D-2.
• Citation: 494 F. Supp. 1035
• Parties: J. E. SIEBEN CONSTRUCTION COMPANY, INC., Plaintiff, v. CITY OF DAVENPORT, IOWA, and Warren and VanPraag, Inc., Defendants.
• Court: U.S. District Court — Southern District of Iowa

494 F. Supp. 1035

J. E. SIEBEN CONSTRUCTION COMPANY, INC., Plaintiff, v. CITY OF DAVENPORT, IOWA, and Warren and VanPraag, Inc., Defendants.

Civ. No. 80-28-D-2.

United States District Court, S. D. Iowa, Davenport Division.

August 18, 1980.

M. T. Fabyanske, Briggs & Morgan, St. Paul, Minn., R. Richard Bittner, Robert D. Lambert, Davenport, Iowa, for plaintiff.

John J. Carlin & Celeste F. Bremer, Davenport, Iowa, for defendant City of Davenport.

Ira J. Melaas, Jr., Wingard, Schultz, Shearer & Melaas, Rock Island, Ill., for defendant Warren & VanPraag.

RULINGS ON MOTION TO DISMISS AND OTHER MOTIONS

VIETOR, District Judge.

This suit is brought under 9 U.S.C. § 4 to compel arbitration under a construction contract.¹ The court has before it motions to dismiss filed by defendants Warren and VanPraag, Inc. and the city of Davenport and plaintiff's motions to amend and to drop defendant Warren and VanPraag. The city of Davenport's motion to dismiss is the only motion that has been resisted.

Plaintiff's motion to drop defendant Warren and VanPraag is sustained, and therefore the motion to dismiss filed by that defendant is now moot. Because no responsive pleading has yet been filed, plaintiff may amend its complaint without leave of court. See Fed.R.Civ.P. 15(a).

Defendant city of Davenport seeks dismissal of the complaint for lack of subject matter jurisdiction, asserting that plaintiff has not pleaded sufficient facts to confer diversity jurisdiction under 28 U.S.C. § 1332. The court does not agree. The amended complaint is in conformity with Form 2, Appendix of Forms, Fed.R.Civ.P., which, by operation of Fed.R.Civ.P. 84, is sufficient. (Any defects of the complaint relative to Warren and VanPraag have been cured by that defendant's dismissal from this action.)

The defendant city also challenges the amount in controversy which places the burden on plaintiff to establish the jurisdictional amount by competent proof. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942); Euge v. Trantina, 422 F.2d 1070, 1073 (8th Cir. 1970). Plaintiff has adequately demonstrated, by way of affidavit and exhibits, that the requisite jurisdictional amount is present. The exhibits show that plaintiff is seeking arbitration on a claim for additional compensation in an amount exceeding two million dollars. In an action to compel arbitration, the amount of the underlying claim determines the amount in controversy. S. J. Groves & Sons v. American Arbitration Ass'n, 452 F.Supp. 121, 123 (D.Minn.1978). It does not appear to a legal certainty that the jurisdictional amount is lacking. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Buffington v. Amchem Products, Inc., 489 F.2d 1053, 1056 (8th Cir. 1974).

The defendant city also contends that plaintiff has failed to state a claim upon which relief can be granted because the city of Davenport is a special charter city under Iowa Code Chapter 420 and plaintiff has failed to comply with Iowa Code § 420.44, which provides:

No suit shall be brought against any such city for any unliquidated claim or demand unless within three months from the time the same became due or cause of action accrued thereon, nor unless a written, verified statement of the general nature, cause, and amount of same is filed with the clerk or recorder thirty days before the commencement of such suit.

The court concludes that plaintiff need not comply with the...