The opinion of the court was delivered by: LEVET
This court, sua sponte, raised the question of subject-matter jurisdiction and defendant moved to dismiss the complaints of plaintiffs Wilfred C. Rompe, Jr. and Donald Rompe upon the ground that jurisdiction under Section 1332(a) of Title 28 U.S.C.A. is not here present.
The three plaintiffs in a complaint filed in this court on March 13, 1963 each separately sued for personal injuries. The plaintiff Wilfred C. Rompe, Jr., sued in addition for property damage to his automobile.
On July 5, 1966, a pretrial order was entered to which both plaintiffs' attorney and defendant's attorney consented in writing. With reference to the claims of Donald Rompe and Wilfred C. Rompe, Jr., paragraph 7 is as follows:
"7. The following are all of the claims for damages or for the other relief asserted by the plaintiffs in this action, as of the date of this conference
ON BEHALF OF DONALD ROMPE
Wages lost during the period May 7, 1960 to August, 1960: $1,000.00
Physician's services and medical supplies, approximately, $ 200.00
Pain and suffering $5,000.00
ON BEHALF OF WILFRED C. ROMPE
Physician's services and medical supplies, approximately $ 35.00
Property damages, approximately $ 140.00"
By the said pretrial order it appears that the total damages claimed by Donald Rompe are $6,200 and that the total claim of Wilfred C. Rompe, Jr., is $175.
At a hearing before this court on November 6, 1967, counsel for plaintiff Donald Rompe conceded that the sum of $5,000 claimed for pain and suffering would be fair and reasonable under all of the circumstances (SM 8). No claim was asserted for any further treatment or medical expense, nor was any motion made to amend the pretrial order.
Rule 16 of the Federal Rules of Civil Procedure in its pertinent part provides as follows:
"The court shall make an order * * * which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. * * *"
"The pre-trial order supersedes the pleadings and becomes the governing pattern of the lawsuit." Murrah, Chief Judge, in Case v. Abrams, 352 F.2d 193, 195 (10th Cir. 1965).
Where the pretrial order contains agreement upon the extent of damages, it is controlling over any assertion in the pleadings. Olson v. Shinnihon Kisen K.K., 25 F.R.D. 7 (E.D.Pa.1950); Montgomery Ward & Co. v. Northern Pacific Term. Co., 17 F.R.D. 52 (D.C.Oregon 1954).
Rule 20 of the Federal Rules of Civil Procedure, providing for permissive joinder of plaintiffs in certain cases, does not support the claim of jurisdiction here of plaintiff Wilfred C. Rompe, Jr., or plaintiff Donald Rompe. See Smith v. Abbate, 201 F. Supp. 105 (S.D.N.Y.1961). "* * * joinder of parties and causes of action under the Federal Rules is permissive only where the court has jurisdiction based upon a federal question or upon diversity of ...