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June 14, 1991


Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR


 This Court's May 31, 1991 memorandum opinion and order (the "Opinion") 765 F. Supp. 498, issued sua sponte promptly after this action had been transferred to this District Court from the United States District Court for the Southern District of Iowa, addressed not only a potential subject matter jurisdictional problem--a question as to the sufficiency of the amount in controversy--but also a problem of personal jurisdiction that had been raised by the First Affirmative Defense asserted by defendant Dana Point Condominium Association ("Association"). *fn1" This Court concluded the Opinion by directing counsel for plaintiffs Catherine ("Catherine") and Glenn ("Glenn") Griffin (collectively "Griffins") to attend the previously-set June 7 status hearing and to be "prepared to explain how and why this action can and should survive dismissal under Association's First Affirmative Defense and the analysis set out in this opinion."

 At the status hearing Griffins' counsel submitted two documents:

1. Griffins' "Statement of Material Facts" and
2. their "Memorandum Supporting Resistance to Defendant's First Affirmative Defense."

 This Court has considered both those submissions, finds them unpersuasive in terms of the hurdles identified in the Opinion, and dismisses both facets of this action--but for different reasons.

 Subject Matter Jurisdiction

 At the outset the Opinion expressed concern about the existence of subject matter jurisdiction in diversity terms--not because the parties lacked the necessary difference in citizenship, which was established by the uncontroverted allegations in Griffins' Complaint, but rather in terms of the more-than-$ 50,000 jurisdictional floor in such cases (see 28 U.S.C. ยง 1332(a)). *fn2" 765 F. Supp. at 499-500 described the gravamen of Griffins' claims and the need to address the potential problem of the requisite jurisdictional amount in controversy. So that this opinion may be wholly self-contained, it will repeat the relevant parts of that description.

 Catherine's claim stems from a slip and fall (Complaint para. 6) that she suffered 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 prerequisite for federal diversity-of-citizenship cases. 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.

 As part of Griffins' responsive submission, their counsel has provided information as to Catherine's past and estimated future medical expenses, as well as her related claims of (1) past and future pain and suffering, (2) permanent disability and (3) loss of the quality of her life and mental anguish. Those things combined certainly establish the bona fides of the over-$ 50,000 ad damnum asserted for Catherine's claim.

 Glenn's loss of consortium claim stands in a different posture. Count II para. 3 alleges:

3. The accident and injuries caused by the negligence of Defendant have disabled the Plaintiff, Catherine A. Griffin, so that the Plaintiff, Glenn A. Griffin, has been deprived of her aid, services, support, ...

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