in state court and that therefore it was properly removed.
The district court in Sayers v. Sears, Roebuck and Co., 732 F. Supp. 654 (W.D. Va. 1990), however, reached a different conclusion. That diversity case was originally instituted in a West Virginia state court on May 4, 1989 where the damages sought were between $ 10,000 and $ 50,000. It was removed to federal court on May 30, 1989. In the interim, on May 18, 1989, an amendment to the federal diversity statute raised the jurisdictional amount to in excess of $ 50,000, which was higher than the amount in controversy in the case. The pertinent public law stated that the amendment "shall apply to any civil action commenced on or after [the effective date of the act]." Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, § 201(b), 102 Stat. 4642, 4646 (1988). The court held that the significant date was the date the action was commenced in the federal court either by the filing of a complaint or by removal. The date it was filed in the state court was of no moment.
We need not decide which of these two decisions is correct. With respect to the amendment before us, Congress employed materially different language than it had on the two previous occasions. It plainly said that the amendment shall "take effect" on January 17, 1997. There was no reference to when the action "commenced."
Defendant also cites Berkshire Fashions, Inc. v. The M.V. Hakusan II, 954 F.2d 874 (3d Cir. 1992). That case is inapposite. One of the issues before the Court of Appeals in Berkshire was whether the district court had abused its discretion in refusing to allow the plaintiff to amend its complaint to drop a non-diverse party so that diversity jurisdiction would exist. When the complaint was originally filed, the jurisdictional amount was $ 10,000. At the time of the proposed amendment, however, Congress had increased it to $ 50,000. The claim in the case was for less than $ 42,000. The Court of Appeals held that the jurisdictional amount had been satisfied because an amendment to the complaint, under Rule 15 of the Federal Rules of Civil Procedure, relates back to the date of the original complaint. In footnote 10 of its opinion, the court explicitly rejected the relevance of Sayres and Kieffer to its analysis since they did not involve Rule 15.
Finally, defendant argues in the alternative that the jurisdictional amount may exceed $ 75,000 after all. In support of this proposition, defendant's counsel relies on his own affidavit concerning a phone conversation with plaintiff's counsel. According to that affidavit, plaintiff's counsel "refused to stipulate that its [plaintiff's] damages do not exceed the amount in the complaint" or that "its damages do not exceed $ 75,000." We know of nothing requiring such a stipulation. Under Rule 11 of the Federal Rules of Civil Procedure, an attorney who signs a pleading represents "that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, it is not being presented for any improper purpose ... [and] the allegations and other factual contentions have evidentiary support ...." Defendant has presented no evidence that plaintiff's counsel has violated this rule. To determine the amount in controversy, we look to the complaint itself. Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir. 1993). Plaintiff seeks damages in the amount of $ 58,539 for breach of contract. There is no ambiguity or uncertainty here necessitating us to proceed further.
The defendant did not remove the present action to this court until January 21, 1997, four days after the amendment to 28 U.S.C. § 1332 took effect. Since the amount in controversy, as noted, is only $ 58,539 and the jurisdictional requisite is in excess of $ 75,000, we do not have subject matter jurisdiction under 28 U.S.C. § 1332. The case will be remanded to the Court of Common Pleas of Philadelphia County.
AND NOW, this 24th day of February, 1997, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that this action is REMANDED to the Court of Common Pleas of Philadelphia County, Pennsylvania on the ground that the amount in controversy is less than $ 75,000, exclusive of interests and costs. 28 U.S.C. § 1332(a).
The Clerk is directed to return the file to the Prothonotary of the Court of Common Pleas of Philadelphia County.
BY THE COURT:
Harvey Bartle, III
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