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KIMBALL v. SCHWARTZ

February 13, 1984

L. ROBERT KIMBALL, t/d/b/a L. ROBERT KIMBALL & ASSOCIATES, Plaintiff
v.
GERALD SCHWARTZ, Defendant



The opinion of the court was delivered by: MANSMANN

 This matter is before the Court on a Motion to Dismiss or Transfer filed by Defendant Gerald Schwartz. Plaintiff L. Robert Kimball, t/d/b/a L. Robert Kimball & Associates ("Kimball"), brought this action alleging that Defendant Schwartz, during this course of his employment with Kimball, spent a great deal of his time promoting or marketing the interests of other companies, including some of Kimball's competitors. For the reasons discussed below, we hereby deny Defendant's Motion.

 * * *

 Plaintiff resides in Pennsylvania, maintaining a place of business in Ebensburg. His business is a sole proprietorship.

 According to the Complaint, in July 1978, Plaintiff hired Defendant as an employee to work exclusively for Plaintiff and to act as Plaintiff's agent in marketing clients and potential clients. Defendant was to perform his marketing duties primarily in West Virginia. Defendant remained in Plaintiff's employ until July 1983 when Defendant submitted his resignation.

 Plaintiff brought this action shortly thereafter, alleging that Defendant breached his oral employment contract with Plaintiff by acting as an agent for other companies and otherwise contacting other companies, including some of Plaintiff's competitors, during the course of his employment with Plaintiff, without Plaintiff's consent or knowledge.

 Plaintiff alleges that Defendant wrongfully used Plaintiff's resources for this purpose. Plaintiff also contends that Defendant intentionally interfered with Plaintiff's existing and prospective contractual relationships by presenting other companies, including some of Plaintiff's competitors, to some of Plaintiff's existing and prospective clients.

 Defendant has filed the Motion to Dismiss or Transfer now before us. We shall consider each of Defendant's arguments separately.

 I. SUBJECT MATTER JURISDICTION

 Defendant argues that the Court lacks subject matter jurisdiction because the amount in controversy does not exceed $10,000 exclusive of interest and costs. Defendant essentially contends that he has not committed the wrongful acts alleged by Plaintiff and therefore is not liable for any amount.

 Plaintiff responds that if he prevails, he will be entitled to damages well in excess of $10,000, exclusive of interests and costs. He has submitted an affidavit to counter Defendant's affidavit and to support the merits and the monetary value of his claims.

 The general federal rule is that the amount in controversy is to be determined from the Complaint itself unless it appears or it is shown that the amount stated in the Complaint is not claimed in good faith. Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 81 S. Ct. 1570, 6 L. Ed. 2d 890 (1961). In deciding the question of good faith, dismissal of the Complaint is only justified if it appears to a "legal certainty" that the amount in controversy is really less than the jurisdictional amount. Id. See also St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S. Ct. 586, 82 L. Ed. 845 (1938).

 Based upon the allegations of the Complaint as well as those set forth in Plaintiff's and Defendant's affidavits, we cannot say that it appears or that it has been shown to a legal certainty that Plaintiff is not entitled to recover a sum in excess of $10,000 exclusive of interest or costs.

 Therefore, this Court does have subject matter jurisdiction under 28 U.S.C. ยง 1332. *fn1 ...


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