Bad Faith After Litigation
Filed a case against a foreign corporation but alleged damages at $75,000.00 to avoid removal. Defendant filed a “Motion to Establish Amount in Controversy” and seeks an order by the trial court “capping” damages at $75,000.00. Does the plea of damages at $75,000.00 establish a cap on damages?
Answer: The statute doesn’t provide for an order capping damages. It sounds like he’s trying to use the provisions of Sec. 13 of HB 1603 which, effective November 1, 2009, amends 12 O.S. 2009 to provide for a Motion to Clarify Damages:
H. MOTION TO CLARIFY DAMAGES. If the amount of damages sought to be recovered by the plaintiff is less than the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code, the defendant may file, for purposes of establishing diversity jurisdiction only, a Motion to Clarify Damages prior to the pretrial order to require the plaintiff to show by a preponderance of the evidence that the amount of damages, if awarded, will not exceed the amount required for diversity. If the court finds that any damages awarded are more likely than not to exceed the amount of damages required for diversity jurisdiction, the plaintiff shall amend his or her pleadings in conformance with paragraph 2 of subsection A of Section 2008 of this title.
As I read the statute, all it does is to permit the state court to decide you are “just kidding” about asking for an amount less than the federal jurisdictional amount and require you to amend to plead more, in which case the diverse defendant can remove you. It does not provide for capping damages. I’m unaware of any statute which does.
Posted on Thu, April 22, 2010
by Sharon Coleman filed under