Opinion · Court of Appeals for the Second Circuit
Cox v. Livingston
Cox v. Livingston, 407 F.2d 392 (2d Cir. 1969)
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1969-02-03
- Topic
- general
HAYS, Circuit Judge: Plaintiffs George T. Cox, Margaret Cox, Frank V. Schmidt, George F. Cox and Margaret E. Cox commenced a di*393versity action in the United States District Court for the Southern'District of New York to recover damages for injuries sustained by them in an automobile accident.
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COX v. LIVINGSTON,407 F.2d 392(2nd Cir. 1969)
George T. COX, Margaret Cox, George F. Cox, an infant, by his Guardian Ad
Litem, George T. Cox, and Margaret E. Cox, an infant, by her Guardian Ad
Litem, George T. Cox, Plaintiffs, and Frank V. Schmidt,
Plaintiff-Appellant, v. Henry H. LIVINGSTON, Jr., and Henry H. Livingston,
III, Defendants-Appellees.
No. 226, Docket 32683.
United States Court of Appeals, Second Circuit.
Argued December 13, 1968.
Decided February 3, 1969.
John F. Scully, New York City (Smith Formidoni, New York City), for appellees.
Before MOORE, SMITH and HAYS, Circuit Judges.
Each of the plaintiffs except George F. Cox and appellant Frank V. Schmidt alleged damages in excess of $10,000. Schmidt moved to amend the complaint to increase from $7,500 to $15,000 the ad damnum clause of the count relating to his cause of action. The district court denied the motion and dismissed that count because of Schmidt's failure to plead the jurisdictional amount.28 U.S.C. § 1332(a) (1964). We reverse the order of the district court and remand.
When, as here, each of several plaintiffs in a single lawsuit is asserting independent rights, each must independently plead the jurisdictional amount. Pinel v. Pinel,240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817 (1916); Township of River Vale v. Town of Orangetown,403 F.2d 684(2d Cir. 1968); Arnold v. Troccoli,344 F.2d 842, 843 n. 1 (2d Cir. 1965).
Appellant sought to correct the deficient allegation of jurisdiction by moving to amend the complaint to increase the sum alleged in the ad damnum from $7,500 to $15,000 stating that in drafting his original complaint he had overlooked the possibility of recovering punitive damages.
Section 1653 of the Judicial Code,28 U.S.C. § 1653(1964), expressly provides that "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." As this court said in John Birch Soc'y v. NBC,377 F.2d 194, 198-99 (2d Cir. 1967): "An application under § 1653 is, of course, addressed to the discretion of the court, andusually thesection is to be construed liberallyto permit the action to be maintained if it is at all possible to determine from the record that jurisdiction does in fact exist." (Emphasis added.) See generally 3 Moore, Federal Practice ¶ 15.09 (2d ed. 1968).
In this case the right to amend should be given a particularly liberal construction since the claim that the district court eliminated is so closely related to the other claims raised in the complaint that a separate trial would exactly duplicate the trial of the other claims.
Nonetheless, if the amendment would not cure the defect in the pleadings denial of appellant's motion would be proper. The further issue is, then, whether it is apparent to a legal certainty that plaintiff cannot recover in excess of $10,000. See Bell v. Preferred Life Assurance Soc'y,320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1964); St. Paul Mercury Indemn. Co. v. Red Cab Co.,303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845, (1938). Plaintiffs have alleged that defendants caused the accident by proceeding at an excessive rate of speed, failing to stop at a stop sign, proceeding the wrong way on a one-way street, and operating their vehicle in a careless and reckless manner. This is a sufficient allegation of "flagrant misconduct," see Soucy v. Greyhound Corp.,27 A.D.2d 112,276 N.Y.S.2d 173(3d Dept. 1967), to support, if proven, the award of substantial exemplary damages. Under the circumstances, then, it is not apparent to a legal certainty that plaintiff cannot recover in excess of $10,000, see Bell v. Preferred Life Assurance Soc'y, supra, and the defect in pleading jurisdiction has been cured.
Reversed and remanded with instructions to allow the amendment.