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LEVAL v. PRUDENTIAL HEALTH CARE PLAN

June 12, 1985

AVERIE STROMBERG LEVAL, PLAINTIFF,
v.
PRUDENTIAL HEALTH CARE PLAN, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Averie Stromberg Leval ("Leval") sued Prudential Health Care Plan, Inc. ("PruCare") and The Prudential Insurance Company of America ("Prudential") in the Circuit Court of Cook County, charging violation of Leval's privacy rights and breach of contract.*fn1 Defendants removed the action to this District Court on diversity-of-citizenship grounds and have now filed two motions:

1. Prudential moves for dismissal.

2. PruCare seeks summary judgment under Fed.R.Civ.P. 56.

For the reasons stated in this memorandum opinion and order, this Court sua sponte remands the action to the state court for want of subject matter jurisdiction.

Facts*fn2

PruCare, a wholly-owned subsidiary of Prudential, is engaged in the health care services business in this area (Complaint ¶¶ 1-2). Leval is a former employee of PruCare (Complaint ¶ 3) whose photograph was used without her knowledge or consent on an advertising promotional poster displayed in PruCare's Lincoln Park Health Center (Complaint ¶ 9). Leval complained, and PruCare agreed to Leval's demand not to use her photo or likeness again without her prior permission and consent (Complaint ¶¶ 10-11).

Despite that promise PruCare published a promotional booklet (Complaint Ex. 1), on the back cover of which a postage-stampsize photograph (1 7/16 inches X 1 inch) including Leval was reproduced. In the photo Leval (in a white uniform) and a child (obviously an outpatient) are shown in an office, in the course of what appears to be taking an x-ray of the child's arm.

Though the child's face is visible in the photograph (despite its tiny size), because Leval is leaning forward toward the camera with her head bent down, all that is really visible as a means of "identification" — even in miniature — is her hairstyle. Even under a magnifying glass, so little of her face is discernible as to defy any real identification of the person as Leval (except perhaps by someone who already knows she is in the photograph).*fn3

Lack of Subject Matter Jurisdiction

Leval's state court complaint asks for compensatory and punitive damages "in a sum in excess of this Court's minimum jurisdictional amount" — apparently a reference to the $15,000 required to avoid hearing in the Circuit Court's Municipal Department (Circuit Court of Cook County General Order 2.2(b)). Ordinarily such a statement of the amount in controversy, if asserted in good faith by a plaintiff, is not open to challenge. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) still states that controlling rule as to jurisdictional amount:

  The rule governing dismissal for want of jurisdiction in cases
  brought in the federal court is that, unless the law gives a
  different rule, the sum claimed by the plaintiff controls if
  the claim is apparently made in good faith.
  It must appear to a legal certainty that the claim is really
  for less than the jurisdictional amount to justify dismissal.

In Jeffries v. Silvercup Bakers, Inc., 434 F.2d 310, 312 (7th Cir. 1970) our Court of Appeals ...


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