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GRIFFIN v. DANA POINT CONDO. ASSN.

May 31, 1991

CATHERINE A. GRIFFIN and GLENN GRIFFIN, Plaintiffs,
v.
DANA POINT CONDOMINIUM ASSOCIATION, Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 This diversity-of-citizenship personal injury action has recently been transferred to this District Court from the United States District Court for the Southern District of Iowa. Defendant Dana Point Condominium Association ("Association") has filed its Answer and Affirmative Defenses to the Complaint brought by plaintiffs Catherine ("Catherine") and Glenn ("Glenn") Griffin (collectively "Griffins"), and this sua sponte opinion is occasioned by matters disclosed by each side's pleadings that require current attention.

 As for Griffins' Complaint, it poses an obvious potential jurisdictional concern. *fn1" Catherine's claim stems from a slip and fall (Complaint para. 6) on the stairway in the condominium building over which Association assertedly maintained control and had sole responsibility for care and maintenance (Complaint paras. 5, 7). Whenever the potential recovery in an action is not susceptible to precise measurement (and a personal injury action is of course a paradigmatic example of that), both the litigants and the court must be keenly aware of the need to establish at least a colorable basis for plaintiff's meeting the more-than-$ 50,000 jurisdictional floor in diversity cases (see 28 U.S.C. ยง 1332(a) *fn2" ). Any failure to be attentive to that consideration can lead to a result in which the losing party -- whichever side that might be -- can attack the ultimate outcome even post-judgment. For a graphic example of that possibility, see Ross v. Inter-Ocean Insurance Co., 693 F.2d 659 (7th Cir. 1982), in which -- upon plaintiff's appeal from a summary judgment in defendant's favor -- the parties were sent back to square one to start the case all over again in the state court because the minimum jurisdictional amount could not arguably have been in controversy.

 For that reason this Court uniformly requires the parties, in any action where even a potential problem appears to exist as to the jurisdictional amount, to treat with that subject by demonstrating that the case is such that the plaintiff has a rational predicate for an over-$ 50,000 ad damnum. In that respect see the seminal case in this area, St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 82 L. Ed. 845, 58 S. Ct. 586 (1938), which requires that "the claim is apparently made in good faith" -- an objective test requiring at least a colorable assertion.

 Accordingly counsel for the parties will be expected to address not only the question of this action's survivorship in any event -- a subject dealt with later in this opinion -- but also the question of jurisdictional amount as to Catherine's claim at the next status hearing, which has been set to be held at 9 a.m. June 7, 1991. As for Glenn's loss-of-consortium claim asserted in Complaint Count II, it cannot of course be aggregated with Catherine's claim to satisfy the jurisdictional amount, but must be considered on its own ( Zahn v. International Paper Co., 414 U.S. 291, 294-95, 38 L. Ed. 2d 511, 94 S. Ct. 505 (1973)). Nonetheless, if Catherine's claim is properly here, the recently-enacted Section 1367 provision for supplemental jurisdiction (which took effect December 1, 1990) may save Glenn's claim as well.

 That suffices to cover the subject matter jurisdictional issues that appear on the face of the Complaint, though it does not touch on the potentially fatal defect that also lurks in Griffins' claims as they have been advanced. But before that critical issue is looked at, a brief mention of a defect in Association's pleadings bears mention.

 Fed. R. Civ. P. ("Rule") 8(b) is quite specific in defining the only circumstances under which a pleader can do something other than either admit or deny an allegation:

 
If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial.

 Despite that unambiguous language, Association's Answer frequently (see Count I paras. 1.a, 2, 5 (a variation) and 6, and Count II para. 2) resorts to an impermissible form of pleading essentially along the following lines:

 
Insufficient knowledge upon which to base a belief as to the truth or falsity of the allegations contained in paragraph -- of Count -- of the plaintiffs' complaint at law is stated by this defendant, and therefore the said allegations are denied and strict proof thereof is demanded by this defendant.

 This Court, despairing of the need for its own repetitive writing of opinions decrying the misreading (or nonreading) of Rule 8(b) that has spawned such incorrect pleading, has caused one of its opinions in this area to be published. Association's counsel are directed to Gilbert v. Johnston, 127 F.R.D. 145, 146 (N.D. Ill. 1989).

 If it turns out that Association must go back to the drawing board to correct those aspects of its Answer, its attention is also called to Answer para. 1.b. It is of course a contradiction in terms for Association to "deny that it is a corporation" and immediately thereafter to assert that it "is an Illinois not-for-profit corporation." Gertrude Stein ("Rose is a rose is a rose") would do better than that.

 But Association may be spared the need to consider the beams in its own eye, given the mote that is clearly present in Griffins' (Matthew 7:3). This Court is also constrained to address Association's First Affirmative Defense, in which it asserts that "plaintiffs' complaint is barred by the applicable two year statute of limitations for personal injury actions." When Association was before the Iowa District Court, it urged a dismissal rather than a Section 1404(a) transfer because there had been no reasonable predicate for Griffins' asserting that Association was subject to personal jurisdiction there. Indeed, had the filing situation been reversed so that Seventh Circuit rather than Eighth Circuit law controlled, there was powerful precedent supporting that position, even though dismissal of the action would have barred a refiling because the statute of limitations had run in the meantime (see such cases as Cote v. Wadel, 796 F.2d 981, 984-85 (7th Cir. ...


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