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DELORENZO v. FDIC

September 28, 1966

Joseph DeLORENZO, David Matz, Louis Solomon, Bernard H. Levmore, and Nathan Schwartzapfel, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant



The opinion of the court was delivered by: TENNEY

MEMORANDUM

 TENNEY, District Judge.

 Defendant moves herein for an order of this Court dismissing this action on the ground that jurisdiction is lacking because the amount in controversy does not exceed ten thousand dollars ($10,000.00) exclusive of interest and costs. Plaintiffs' amended complaint sets forth five claims for relief. *fn1" The allegations of these are as follows:

 Plaintiffs, all of whom deposited money in the San Francisco National Bank (hereinafter referred to as the "Bank"), seek to recover the insured amounts of their deposits from defendant. Plaintiffs and those for whom they sue deposited approximately $1,300,000.00 in the Bank between January 2, 1965 and January 22, 1965. On January 22, 1965, the Comptroller of the Currency declared the Bank to be insolvent, and defendant was appointed receiver pursuant to Section 11(c) of the Federal Deposit Insurance Act, 64 Stat. 884 (1950), 12 U.S.C. § 1821(c) (1964).

 As alleged in plaintiffs' affidavit in opposition to this motion, for several months prior to the appointment of defendant as receiver the Bank was in substantial financial difficulty as a result of the granting of a series of improvident loans, making it impossible for the Bank to pay maturing deposits as they came due. In the latter part of 1964, a representative of a New York broker, named "Gifts for Thrift", met with representatives of the Bank, the defendant and the Federal Reserve Board, whereby "Gifts for Thrift" was authorized to solicit deposits for the Bank in an attempt to obtain funds to pay maturing deposits and thus keep the Bank open. It is claimed that the Bank agreed to pay a brokerage commission to "Gifts for Thrift" on any deposits obtained.

 Returning to the allegations of the amended complaint, plaintiffs claim that the deposits were made through "Gifts for Thrift" prior to the Bank's closing. It is alleged that these deposits were insured by the Federal Deposit Insurance Corporation and that upon demand for payment by plaintiffs, defendant failed to comply with its obligation. Plaintiffs' first three claims for relief all seek a declaration of this Court that the deposits are entitled to insurance and demand payment of said insurance proceeds by the defendant. The fourth claim alleges that defendant participated in a fraudulent scheme in the transaction, and, since the funds are in the custody of defendant as receiver of the Bank, a constructive trust should be impressed upon the funds represented by the deposits. The final claim is that defendant, by its unreasonable and unjustifiable refusal to pay plaintiffs the amounts demanded, is liable for 12 1/2 per cent attorney's fees in accordance with Section 59-a(4) of the New York Insurance Law, McKinney's Consol.Laws, c. 28. *fn2" Jurisdiction of this Court is based on Section 9 of the Federal Deposit Insurance Act, 64 Stat. 881 (1950), 12 U.S.C. § 1819 (1964), *fn3" and 28 U.S.C. § 1346 (1964). *fn4" The amounts claimed by the named plaintiffs were deposited in approximately sixty separate accounts in the sum of approximately $565,000.00.

 On July 21, 1966, pursuant to stipulations of the parties, I ordered the dismissal of this action with prejudice as it related to plaintiffs Matz, Solomon, Wolfson and Schwartzapfel. In addition, the action was dismissed as to certain of the DeLorenzo claims. On July 25, 1966, also pursuant to stipulation, I dismissed the action with prejudice as to the Levmore accounts. The reason for these dismissals was a finding by the Federal Deposit Insurance Corporation that these accounts were held in a separate right or interest and therefore entitled to the payment of a maximum of $10,000 on each account. Remaining before the Court are seven accounts entitled "Joseph A. DeLorenzo, Trustee for Laundercoin Sales Corp. Tr. A/C #1-7."

 Defendant claims that this Court has no jurisdiction because the amount in controversy does not exceed ten thousand dollars ($10,000.00) exclusive of interest and costs as required by 28 U.S.C. § 1331(a) (1964). It is defendant's contention that plaintiffs, by aggregating their several claims so as to exceed $10,000.00, cannot confer jurisdiction on this Court. Defendant argues that plaintiffs' action amounts only to a so-called "spurious" class action under Rule 23(a)(3) of the Federal Rules of Civil Procedure, *fn5" and that in such an action the claims of the several plaintiffs cannot be aggregated. Indeed, there is ample authority for this contention. *fn6" Defendant goes on to great lengths to prove this principle and, in so doing, practically sloughs off the central issue presented to the Court: Whether each individual plaintiff can aggregate his claims to satisfy the jurisdictional amount.

 It is well settled that where plaintiff, by stipulation, affidavit or amended pleading, reduces his claim below the requisite jurisdictional amount, the district court is not deprived of jurisdiction. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292, 58 S. Ct. 586, 82 L. Ed. 845 (1938). Stated in other terms, events subsequent to the filing of the complaint which reduce the amount recoverable will not affect Federal jurisdiction that has been initially properly invoked. United Steelworkers v. International Tel. & Tel. Corp., 133 F. Supp. 602, 604 (D.Minn.1955); Loveless Mfg. Co. v. Roadway Exp., Inc., 104 F. Supp. 809, 811 (N.D.Okla.1952); 1 Barron & Holtzoff, Federal Practice & Procedure § 24, at 119 (Wright ed. 1960).

 Under Rule 18(a) of the Federal Rules of Civil Procedure (as amended July 1, 1966), a plaintiff may join as many claims - either legal, equitable or maritime - as he may have against his adversary. See generally 2 Barron & Holtzoff, op. cit. supra § 504, at 74. A plaintiff may aggregate all his claims against a defendant to fulfill the Federal jurisdictional monetary requirement. Alberty v. Western Sur. Co., 249 F.2d 537 (10th Cir. 1957); Kimel v. Missouri State Life Ins. Co., 71 F.2d 921 (10th Cir. 1934); Snyder v. Wylie, 239 F. Supp. 999 (W.D.N.C.1965); Cooper v. Camp Pinecrest, Inc., 175 F. Supp. 817 (E.D.N.Y.1959); McKnight v. Halliburton Oil Well Cementing Co., 20 F.R.D. 563 (N.D.W.Va.1957); Johnston v. Oregon Elec. Ry., 145 F. Supp. 143 (D.Or.1956); Green v. Fluor Corp., 122 F. Supp. 224 (S.D.N.Y.1954); Louisville & N.R.R. v. United States, 106 F. Supp. 999 (W.D.Ky.1952), aff'd, 221 F.2d 698 (6th Cir. 1955); 2 Barron & Holtzoff, op. cit. supra § 503, at 74. See Crawford v. Neal, 144 U.S. 585, 12 S. Ct. 759, 36 L. Ed. 552 (1892).

 It should be noted that although the party alleging compliance with the jurisdictional prerequisites of the district courts has the burden of proving them (McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135 (1936)), only if it appears from the face of the pleadings to a legal certainty that plaintiff cannot recover the jurisdictional amount will the suit be dismissed. St. Paul Mercury Indem. Co. v. Red Cab Co., supra, 303 U.S. at 289, 58 S. Ct. 586; Indiana Limestone Co. v. Branna Constr. Corp., 252 F. Supp. 959 (W.D.Pa.1966). Keeping this in mind, the pertinent statutory provision should be considered.

 Section 3(m) of the Federal Deposit Insurance Act, 64 Stat. 875 (1950), as amended, 12 U.S.C. § 1813(m) (1964) provides:

 
(m) The term "insured deposit" means the net amount due to any depositor for deposits in an insured bank * * * less any part thereof which is in excess of $10,000. * * * [In] determining the amount due to any depositor there shall be added together all deposits in the bank maintained in the same capacity and the ...

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