Zep Manufacturing Corporation v. Haber
| Decision Date | 08 March 1962 |
| Docket Number | Civ. A. No. 14154. |
| Citation | 202 F. Supp. 847 |
| Parties | ZEP MANUFACTURING CORPORATION, Plaintiff, v. Robert F. HABER, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Baker, Botts, Shepherd & Coates, Houston, Tex. (Robert A. White), Houston, Tex., and Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for plaintiff.
Herbert N. Lackshin and William E. Ladin, Houston, Tex., for defendant.
An application for a preliminary injunction is before the court, with jurisdiction alleged on the basis of diversity of citizenship and an amount in controversy exceeding $10,000, exclusive of interest and costs. The application is opposed by defendant's motion to dismiss for failure to state a claim and for lack of jurisdiction.
Plaintiff, Zep Manufacturing Corporation, asks this court to issue a temporary restraining order against defendant, Robert F. Haber, during the pendency of its action for a permanent injunction against defendant for alleged violations of a covenant not to compete. Until January 20, 1962, defendant was under contract to plaintiff, a manufacturer and distributor of maintenance and sanitation supplies, as a salesman and sales supervisor. The contract of employment contained a restrictive covenant not to compete with plaintiff in a specified area for one year after termination of employment. Defendant terminated his employment with plaintiff on January 20, 1962, and shortly thereafter began selling for Titan Chemical Corporation, in competition with plaintiff. Because this court finds it has no jurisdiction over the dispute, it is unnecessary to relate further details of the covenant or of defendant's conduct alleged to be in violation thereof.
This action must be dismissed because the evidence fails to show that more than $10,000 is in controversy. Although plaintiff's complaint states that more than $10,000 is involved, the facts adduced during the interlocutory hearing and the facts set out in the briefs of the parties do not support this statement. The prayer asks nothing but injunctive relief. It is not ancillary to any other action asserted.
In a suit for an injunction, the amount in controversy is determined by the value of the object to be gained by the plaintiff. Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 36 S.Ct. 30, 60 L.Ed. 174 (1915). In terms promulgated by this circuit, "jurisdiction is to be tested by the value of the right sought to be protected against interference." Seaboard Finance Co. v. Martin, 244 F.2d 329 (5th Cir. 1957). Although some courts have held that the amount in controversy is the benefit to the plaintiff from the injunction, or the cost to the defendant of complying with it, whichever is greater (See, e. g., Ronzio v. Denver & R.G.W.R.Co., 116 F.2d 604, 606 (10th Cir. 1940)), "the more recent opinions, as a group, reflect the plaintiff-viewpoint concept in determining jurisdictional amount." 1 Moore's Federal Practice 869, 870 (1960 Ed.). Thus, in resolving the dispute engendered by the defendant's challenge to plaintiff's allegations of jurisdictional amount, it is necessary to determine the benefit to the plaintiff from the injunction sought.
The testimony of Hubert Jenkins — Zep regional division manager and defendant's immediate superior while in the employ of plaintiff — was uncontroverted that defendant's sales for 1961 were approximately $115,000, and that defendant received approximately $33,000 therefrom. (The affidavit of Jenkins attached to the complaint established these figures more precisely at $114,640 and $32,960, respectively.) Jenkins testified on cross examination that plaintiff's profit on defendant's sales, in Jenkins' estimation, was 10% of the amount paid to defendant — approximately $3,300. Both parties have accepted this estimate in their briefs, and the issue is joined concerning whether the $3,300 is per se representative of the benefit to the plaintiff sought to be protected by the requested injunction,...
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Hedberg v. State Farm Mutual Automobile Insurance Co.
...Rubber Co., supra, 344 F.2d 730, 733-34 (8 Cir. 1965). Hedberg, in support of his position, relies particularly on Zep Mfg. Co. v. Haber, 202 F.Supp. 847 (S.D.Texas 1962) and on our own cases of S. S. Kresge Co. v. Amsler, 99 F.2d 503 (8 Cir. 1938), cert. denied 306 U.S. 641, 59 S.Ct. 582, ......
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Basicomputer Corp. v. Scott, No. 91 CV 2178.
...not subject to competition from each defendant, and its value subject to competition from each defendant. E.g. Zep Mfg. Corp. v. Haber, 202 F.Supp. 847 (D.Tex.1962); Burndy Corp. v. Cahill, 196 F.Supp. 619, 622 (D.Minn.1961) (vacated on other grounds, 301 F.2d 448 (8th In such an examinatio......
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...upon the Snow decision in dismissing consideration of Defendant's view point in this case. Snow v. Ford, supra and Zep Mfg. Corp. v. Haber, 202 F.Supp. 847 (SD Tex. 1962). The second approach taken by the courts considers both the Plaintiff's and the Defendant's viewpoints. Miller, supra, i......
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Establishing the Amount in Controversy in Removed Actions Under 28 Usc Section 1332
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