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Dong v. Garcia

April 23, 2008

HANYUAN DONG, PLAINTIFF,
v.
VIRGINIA GARCIA, DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Hanyuan Dong filed a personal injury complaint against Virginia Garcia. Since the complaint was filed, Garcia passed away and a personal representative has been appointed for Garcia's estate ("the defendant") for the purpose of this action. Defendant has filed a motion to dismiss for lack of jurisdiction under FED. R. CIV. P. 12(b)(1) and to dismiss or transfer for improper venue under FED. R. CIV. P. 12(b)(3). For the following reasons, the motion to dismiss is denied and the motion to transfer is granted.

I.

Plaintiff is a citizen of Illinois and Garcia was a citizen of Indiana. Plaintiff alleges he was struck by Garcia's car, which Garcia was operating in a negligent and careless manner, while he was outside his car at a gas station in northern Indiana. The complaint alleges he was "severely and seriously injured, both internally and externally, and he suffered a severe shock to his nervous system, and bruises, contusions and lacerations to his body, and he became sick and disabled and will, in the future, suffer great pain, discomfort and physical impairment, with his injuries requiring emergency hospitalization and medical care; and he has become obligated for, and will continue to become obligated for, large sums of money for medical and hospital care and attention." (Compl. at ¶ 10.) The complaint seeks damages "in excess of . . . $75,000."

II.

In assessing defendant's motions to dismiss under FED. R. CIV. P. 12(b)(1), I must accept all well-pleaded facts in the complaint as true. St. Johns United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). I must view the allegations in the light most favorable to plaintiffs and accept all well-pleaded facts in the complaint as true. Id.

Defendant contends plaintiff cannot meet the amount in controversy requirement necessary for diversity jurisdiction. "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." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 815 (7th Cir. 2006) (citation omitted) ("When the complaint includes a number, it controls unless recovering that amount would be legally impossible.").

The evidence submitted by defendant in support of her motion consists of medical records produced by plaintiff's counsel. Plaintiff's medical expenses appear to total $13,661 and the results of various medical exams, such as CT scans of his head, abdomen, chest, and sinus, do not reveal any fractions or post traumatic changes. In a neuropsychological evaluation, the physician noted that

While the patient's history of a loss of consciousness and subsequent alteration in mental status suggests he sustained a mild TBI, there is no conclusive sign that he is experiencing persistent cognitive deficits associated with that injury. This is expected since in patients with such injuries, neurological dysfunction causes cognitive impairment for only a few weeks afterwards. However, he clearly meets [the] diagnostic criteria for Major Depression, which can also involve concentration problems.

Recommendations The present evaluation is limited to cognitive functioning and does not consider the effects of physical impairment on daily functioning in general and on capacity to work in particular. . . . It is also recommended that he receive psychotherapy for training in management of his depressive symptoms.

Defendant argues this evidence establishes plaintiff's alleged injuries are insufficient to satisfy the amount in controversy requirement.

The evidence set forth by defendant does not establish the amount of damages in this case to a legal certainty. The physician's note specifically points out that it does not consider "the effects of physical impairment on daily functioning in general and on capacity to work in particular." Therefore, the evidence presented does not make it a legal impossibility for damages to exceed $75,000 in light of his alleged physical impairments and disabilities, pain, suffering, or future medical treatment and losses. See Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 428-29 (7th Cir. 1997). Accordingly, the motion to dismiss on this ground is denied.

Defendant also moves to transfer for improper venue pursuant to FED. R. CIV. P. 12(b)(3). When considering a Rule 12(b)(3) motion, I must take all allegations in the complaint as true (unless contradicted by affidavit), draw all reasonable inferences in favor of plaintiff, and may examine facts outside the complaint.

See Rotec Indus., Inc. V. Aecon Group, Inc., 436 F. Supp. 2d 931, 933 (N.D. Ill. 2006). Plaintiff bears the burden of ...


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