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BELL v. MYKYTIUK

October 18, 1955

William J. BELL and Margaret Bell
v.
Alexander MYKYTIUK



The opinion of the court was delivered by: KRAFT

Plaintiffs, husband and wife, claim damages arising from a motor vehicle collision. Jurisdiction is based on diversity of citizenship. Defendant filed a motion to dismiss the action of the wife plaintiff and to dismiss the claim of the husband plaintiff for consequential damages resulting from his wife's injuries. The latter request is abandoned in defendant's brief.

The motion to dismiss the wife's action is based on the contention that her claim is not within the jurisdictional amount.

 Plaintiffs, permissively joined under Fed.Rules Civ.Proc. rule 20, 28 U.S.C.A. must have claims in excess of $ 3,000 each. Clark v. Paul Gray, Inc., 306 U.S. 583, 585, 59 S. Ct. 744, 83 L. Ed. 1001. The wife plaintiff in her complaint alleges damages of $ 5,000. The depositions, now of record, disclose she lost $ 54 in wages, incurred medical expenses of $ 12, and suffered a bruised right arm which required one medical examination and which disappeared within two weeks. Assuming that her deposition states her whole case for damages it is obvious that she cannot establish a claim within the jurisdictional amount nor is this disputed in plaintiffs' brief. While there is no stipulation that the court may act on the basis of the deposition, it seems purposeless that the case of the wife plaintiff should be kept alive, only to be dismissed at the trial, if she has no evidence which proves greater damages. See Weinberger v. Toms River Express, D.C., 135 F.Supp. 872.

 Order

 Therefore, October 18, 1955, it is ordered that the complaint of the plaintiff Margaret Bell be and is dismissed, unless, within twenty days, she informs the court by affidavit of any evidence she may have and expect to produce at the trial, tending to show damages beyond those disclosed in the deposition.

19551018

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