Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ITT COMMER. FIN. CORP v. UNLIMITED AUTO.

December 9, 1992

ITT COMMERCIAL FINANCE CORP, a Nevada Corporation, Plaintiff,
v.
UNLIMITED AUTOMOTIVE, INC., d/b/a FOX VALLEY R.V., an Illinois Corporation, BANK ONE MILWAUKEE, N.A., a federally chartered banking association, and RICHARD MESSENGER, Defendants. CHRYSLER FIRST COMMERCIAL CORPORATION, a Pennsylvania Corporation, Intervenor, v. UNLIMITED AUTOMOTIVE, INC., d/b/a FOX VALLEY R.V., an Illinois Corporation, and EVERETT J. HILLER, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Presently before the court are the motions of defendants Bank One Milwaukee, N.A. ("Bank One") and Richard Messenger to dismiss respectively Counts III and IV of plaintiff's second-amended complaint for lack of subject matter jurisdiction. For the reasons set forth below, we deny both motions.

 I. Motion to Dismiss Standard

 A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).

 II. Factual Background

 ITT is an entity incorporated under the laws of the State of Nevada, having its principal place of business in the State of Missouri. Defendant Unlimited Automotive, Inc. d/b/a Fox Valley R.V. ("Fox Valley") is a corporation organized and existing under the laws of the State of Illinois, having its principal place of business in Chicago, Illinois. Bank One is a federally chartered banking association with its principal place of business located in Milwaukee, Wisconsin. Messenger, an individual, is an Illinois resident.

 On December 17, 1991, ITT and Fox Valley entered into a written agreement whereby ITT agreed to provide Fox Valley financing for the purchase of inventory. As security for its indebtedness, Fox Valley gave ITT an interest in all of its inventory and in other collateral as defined in the agreement. ITT properly perfected this security interest by the filing of a financial statement with the Illinois Secretary of State. According to ITT, Fox Valley is in default of its obligations under the agreement in at least the following respects: (1) Fox Valley has sold inventory financed by ITT out of trust by not paying the full amount of collateral financed by ITT when each such item was sold; (2) Fox Valley has refused to provide to ITT financial information as requested; (3) Fox Valley has failed to pay its indebtedness to ITT as it came due in the amount of $ 424,559.56; and (4) Fox Valley has altered or destroyed serial numbers of collateral financed by ITT in an attempt to avoid and confuse the extent of its obligations to ITT. Paragraph ten of the agreement provides in part that, in the event of default, ITT may "without notice or demand . . . take immediate possession of the Collateral, together with all related documents." To effectuate this remedy, ITT filed this four-count diversity action against Fox Valley, Bank One and Messenger.

 In Count III, the only count in which Bank One is named as a defendant, ITT seeks a declaratory judgment that it is the rightful owner of a certain 1986 Airstream Motor Home, Model No. 345LE, Serial No. 1GBKP37W6F3345951 (the "Bank One vehicle"). Similarly, in Count IV, the sole count in which Messenger is named as a defendant, ITT seeks a declaration that it is the rightful owner of a certain 1977 Airstream Motor Home, Vehicle Identification No. 131A7J2405 (the "Messenger vehicle"). *fn1" Bank One and Messenger have moved to dismiss the counts of ITT's complaint in which each is named for lack of subject matter jurisdiction on the grounds that the amount in controversy does not exceed $ 50,000, exclusive of interest and costs. See 28 U.S.C.A. § 1332(a) (Supp. 1992).

 III. Discussion

 At the threshold, we note that each defendant's potential liability on the respective claims is several. As such, jurisdiction under § 1332(a) can be sustained "only against those defendants whose respective controversies individually involve matters exceeding the jurisdictional amount." Motorists Mutual Ins. Co. v. Simpson, 404 F.2d 511, 513 (7th Cir. 1968), cert. denied, 394 U.S. 988, 89 S. Ct. 1470, 22 L. Ed. 2d 763 (1969); see also Corporate Resources, Inc. v. Southeast Suburban Ambulatory Surgical Center, Inc., 774 F. Supp. 503, 505 (N.D. Ill. 1991). In other words, ITT must establish that the amount in controversy exceeds $ 50,000 for both Counts III and IV individually.

 It is well-settled that the amount in controversy requirement is met by a good faith allegation of the minimum requirement in the complaint. As stated in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938): "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." Upon a factual challenge by a defendant, however, the court is not bound to accept the mere allegations in plaintiff's complaint. Racich v. Mid Continent Builders Co., 755 F. Supp. 228, 229 (N.D. Ill. 1991); Bellock v. Orkin Exterminating Co., 754 F. Supp. 122, 123 (N.D. Ill. 1990). Instead, the party seeking to invoke federal jurisdiction bears the burden of supporting its jurisdictional allegations by "competent proof." McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936); Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979); Kennedy v. Commercial Carriers, Inc., 739 F. Supp. 406, 410 (N.D. Ill. 1990). However, this burden (technically placed on the plaintiff) is not exacting: "plaintiff is entitled to considerable latitude in supporting his allegations; he must be given the benefit of any facts he could conceivably prove in support of his allegations." Racich, 755 F. Supp. at 229 (citing Lichter v. Paine, Webber, Jackson & Curtis, Inc., 570 F. Supp. 533, 536 (N.D. Ill. 1983)). Further, in order for defendants to prevail on their motions to dismiss, it must appear to a legal certainty that the claim is really for less than the jurisdictional amount." St. Paul Mercury, 303 U.S. at 289, 58 S. Ct. at 590.

 "In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 347, 97 S. Ct. 2434, 2443, 53 L. Ed. 2d 383 (1977); see also McNutt, 298 U.S. at 181, 56 S. Ct. at 781. In Count III, that object is the Bank One vehicle, a 34 1/2 foot 1986 Airstream motor home. Respecting Bank One's motion, our task is the determination of the vehicle's value as of May 21, 1992, the commencement date of this action against Bank One. See Pariente v. Scott Meredith Literary Agency, Inc., 771 F. Supp. 609, 613 (S.D.N.Y. 1991) (citing St. Paul Mercury, 303 U.S. at 289-90, 58 S. Ct. at 590-91). Bank One's factual challenge to the value of the Bank One vehicle consists entirely of the affidavit of Eric Pedersen, a partner in E & D Auto and Marine Services. Pedersen states that on February 28, 1992, the Bank One vehicle required repairs in excess of $ 5,000, and that in his estimate was worth approximately $ 15,000 wholesale and less than $ 25,000 retail. As of September 10, 1992, Pedersen pronounced the fair market value of the vehicle at approximately $ 40,000. *fn2" Pedersen's affidavit, however, is insufficient to challenge ITT's allegation of an amount in controversy in excess of $ 50,000. Specifically, Pedersen's affidavit is silent as to the value of the vehicle, either retail or wholesale, on May 21, 1992. True, it is probable that Pedersen's estimate of the vehicle's value on May 21, 1992, would likely fall between his estimates for February 28, 1992 ($ 15,000 wholesale) and September 10, 1992 ($ 40,000 fair market value). Nonetheless, any attempt to extrapolate the vehicle's value on May 21, 1992, would be nothing more than pure guesswork, as no evidence exists as to its condition on that date.

 This court, however, takes judicial notice that Kelley's Blue Book is an authoritative guide to the valuation of recreational vehicles. See In re Mitchell, 954 F.2d 557, 559 (9th Cir. 1992) (using Kelley's Blue Book to estimate value of vehicle), cert. denied, 113 S. Ct. 303, 121 L. Ed. 2d 226 (1992); In re Miller, 4 Bankr. 392, 393 (Bankr. S.D. Cal. 1980) (same). That publication indicates that, in May of 1992, a "typical" 34 1/2 foot 1986 Airstream Motor Home had a retail value of $ 59,100 and a wholesale value of $ 44,500. Were this court to accept the retail value as the most appropriate valuation, or even the average of the retail and wholesale estimates as employed by many bankruptcy courts, ITT surely would meet the amount in controversy requirement. However, as did the Ninth Circuit in In re Mitchell, 954 F.2d at 559-61, we believe that the wholesale value should apply to the valuation of vehicles. Significantly, ITT is a creditor seeking to gain possession of collateral. As the Ninth Circuit noted, the creditor's interest in a vehicle is equivalent to what the creditor could receive upon a reasonable disposition of the collateral. Id. at 560. The vast majority of the difference between retail and wholesale price represents overhead, i.e., costs necessarily incurred by dealers to realize the retail price. Without such ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.