Takashi Kataoka v. May Department Stores Co., 9479.
| Decision Date | 18 November 1940 |
| Docket Number | No. 9479.,9479. |
| Citation | 115 F.2d 521 |
| Parties | TAKASHI KATAOKA et al. v. MAY DEPARTMENT STORES CO. et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Albert E. Coger, of Los Angeles, Cal., for appellants.
Walter O. Schell, Gerald F. H. Delamer, and Joseph H. Wheeler, all of Los Angeles, Cal., for appellees.
Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.
Appellants, Takashi Kataoka (an infant suing by his guardian ad litem)1 and Tsutomu Kataoka, brought this action against appellees, The May Department Stores Company (hereafter called May Company) and Jerry Goddord, in the District Court of the United States for the Southern District of California. Appellees answered, the case came on for trial, a jury was empaneled, appellants presented their evidence and, at the conclusion thereof, appellees moved the court to dismiss the action on the ground that, upon the facts and the law, appellants had shown no right to relief.2 The court granted the motion and entered a judgment dismissing the action on the merits and awarding costs to appellees. Appellants moved the court to vacate the judgment and grant them a new trial and, while that motion was pending, moved the court to dismiss the action for want of jurisdiction. Both motions were denied. This appeal is from the judgment.
The question is whether the District Court had jurisdiction of the action. Appellants contend that such jurisdiction was lacking. Appellees contend that the matter in controversy exceeded, exclusive of interest and costs, the sum or value of $3,000 and was between citizens of different States, and that, therefore, the court had jurisdiction under § 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1).
The complaint was in three counts. Each count stated a claim for damages and costs. In each of the first two counts the amount of damages claimed was $15,000. Thus, in each of those counts, the matter in controversy exceeded, exclusive of interest and costs, the sum or value of $3,000. In count 3 the amount of damages claimed was $992.18, plus special damages. The amount of such special damages was not disclosed. Hence, it cannot be said that, in count 3, the matter in controversy exceeded, exclusive of interest and costs, the sum or value of $3,000.
The damages claimed in counts 1 and 2 were alleged to have been sustained by Takashi Kataoka. Tsutomu Kataoka had no interest in those claims. The damages claimed in count 3 were alleged to have been sustained by Tsutomu Kataoka. Katashi Kataoka had no interest in that claim. Hence, the claim stated in count 3 could not be aggregated with either of those stated in the other counts for the purpose of conferring jurisdiction. Gavica v. Donaugh, 9 Cir., 93 F.2d 173, 175. It follows that, as to count 3, the District Court had no jurisdiction.
In each of the first two counts the matter in controversy was between Takashi Kataoka on the one hand and May Company and Goddord on the other. Takashi Kataoka and Goddord are citizens of California.3 May Company is a New York corporation and is, therefore, a citizen of New York. Thus Takashi Kataoka and May Company are citizens of different States, but Takashi Kataoka and Goddord are citizens of the same State.
Each count of the complaint alleged that Goddord was at all times therein mentioned "the duly appointed, qualified and acting agent, servant and employee of May Company and as such was acting within the scope of his employment;" that May Company maintained and operated a department store in Los Angeles, California; that Takashi Kataoka and his mother, Toki Kataoka, were customers and invitees of May Company and, as such, entered said store on September 12, 1938, and ascended to the third floor thereof by means of an escalator or moving stairway maintained and operated by May Company; that,...
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