amount in controversy from the plaintiff's perspective only. See generally, e.g., Coleman v. Southern Norfolk, 734 F. Supp. 719 (E.D. La. 1990); Kennard v. Harris Corp., 728 F. Supp. 453 (E.D. Mich. 1989).
Although both parties presume that the amount in controversy should be measured from the Windeyer's perspective, only the Windeyers offer some justification for this approach. They argue that measurement from their perspective is appropriate because, by removing the case to this court, they are the party that invoked federal jurisdiction. Indeed, some courts hold that the amount in controversy for diversity purposes should be measured from the perspective of the party that invokes federal jurisdiction, whether that be the plaintiff (as is ordinarily the case) or the defendant who removes the case to federal court. See, e.g., McLaughlin, Piven, Vogel, Inc. v. National Ass'n of Sec. Dealers, Inc., 733 F. Supp. 694, 697 (S.D.N.Y. 1990) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936); Kheel, 457 F.2d at 49). This theory would allow defendants (such as the Windeyers) who remove cases to federal court to invoke federal jurisdiction based upon their own stake in the litigation, without regard to the amount in controversy with respect to the plaintiff. See Solna, Inc. v. American Printing Equip., Inc., No. 89-715- CV-W-5, 1989 U.S. Dist. LEXIS 11173 (W.D. Mo. Sept. 20, 1989) (applying perspective of defendant invoking federal jurisdiction); Bedell v. H.R.C. Ltd., 522 F. Supp. 732, 735-36 (E.D. Ky. 1981) (same).
The Second Circuit has not yet had an opportunity to instruct district courts on whether the jurisdictional amount should be measured from the perspective of the party removing the case to federal court. In the absence of binding authority providing some guidance to the contrary, this court is persuaded by well-settled axioms of jurisdictional analysis to reject that approach. This court abides by the rule that damages are measured strictly from the plaintiff's perspective, even in cases which have been removed by the defendant to federal court.
Two premises compel this conclusion. First, contrary to defense counsel's assertion at oral argument, "it is generally well recognized that a plaintiff may avoid diversity jurisdiction by pleading below the jurisdictional amount." Kliebert v. Upjohn Co., 915 F.2d 142, 146 (5th Cir. 1990), reh'g granted en banc, 923 F.2d 47 (5th Cir.), appeal dismissed, 947 F.2d 736 (5th Cir. 1991) (catatonias omitted). By allowing a defendant to remove a case to federal court based upon the amount in controversy from its own perspective, the rule allowing a plaintiff to avoid federal jurisdiction by pleading damages below the jurisdictional threshold would be defeated. See Kleibert, 915 F.2d at 146-47. In the interest of preserving the settled rule that a plaintiff may chose to avoid diversity jurisdiction, the court should limit its inquiry to the pleadings set forth in plaintiff's complaint.
Second, determination of jurisdiction is generally based upon the rights asserted by the plaintiff, without regard to the defendant's pleading. E.g. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 153, 53 L. Ed. 126, 29 S. Ct. 42 (1908) (federal question jurisdiction); Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d 323, 327 (2d Cir. 1982), aff'd sub nom, Arcudi v. Stone & Webster Engineering Corp., 463 U.S. 1220, 77 L. Ed. 2d 1405, 103 S. Ct. 3564 (1983) (same). "Whether [a suit] could have been brought in federal court depends 'on the (truthful) allegations of the complaint rather than on an issue that might be-- even one that certainly would be-- injected later by the answer or some other subsequent pleading.'" Lang v. American Electr. Power Co., Inc., 785 F. Supp. 1331, 1992 U.S. Dist. LEXIS 2732 *3 (N.D. Ind. Feb. 27, 1992) (citation omitted); accord Leher v. Consolidated Papers, Inc., 786 F. Supp. 1480, 1992 U.S. Dist. LEXIS 3448 *8-9 (W.D. Wis. 1992). Because the amount in controversy is a jurisdictional prerequisite to diversity cases, this too should be measured based upon rights asserted by the plaintiff. If a plaintiff asserts rights that place into controversy an amount less than $ 50,000, then the court does not have jurisdiction, notwithstanding what defenses the defendant might raise. As a corollary, since a case may be removed only if the court would have had original jurisdiction over the claim in the first place, see 28 U.S.C. § 1441, a defendant cannot rely upon the removal statute to "bootstrap" a federal claim based upon the damages that it may suffer as a result of plaintiff's claim. See Rollwitz v. Burlington Northern R.R., 507 F. Supp. 582, 585-87 (D. Mont. 1981) (general discussion as to why amount should be measured from plaintiff's perspective, even in removal cases); Bull v. Big Three, Inc., 379 F. Supp. 41, 43 (E.D. Okla. 1974).
This conclusion follows the rationale articulated by the Ninth Circuit in Snow v. Ford Motor Co., 561 F.2d 787 (9th Cir. 1977). In Snow, the plaintiff brought a class action suit alleging deceptive advertising and sought, inter alia, an injunction against the defendant's future sale of a given product and approximately $ 5,011.00 in compensatory and punitive damages. The defendant removed the case to federal court on the basis of diversity of citizenship, asserting that the requisite jurisdictional amount (then $ 10,000) was met by the value to defendant of the business right which the plaintiff sought to enjoin. See Snow, 561 F.2d at 788. The Ninth Circuit rejected the defendant's argument for federal jurisdiction and ordered that the case be remanded to state court. The court based its holding in part on its view that "the proper focus [in measuring the amount in controversy] . . . depends upon the nature and value of the right asserted" in the case. Id. at 790 (citations omitted). The right asserted in Snow was the plaintiff's right to be protected from deceptive advertising, which did not place into controversy the jurisdictional minimum. Id. at 790-91. Plaintiff's failure to allege the jurisdictional minimum was fatal to defendant's removal because "in the absence of a specific statutory exception, a federal court can exercise removal jurisdiction over a case only it would have had jurisdiction over it as originally brought by the plaintiff." Id. at 789; see, e.g., Kheel, 457 F.2d at 48-49 (damages are regularly viewed from the plaintiff's perspective; defendants damages are irrelevant); Myers, 623 F. Supp. at 1078 (same). The fact that Snow was brought as a class action does not affect its applicability to the present case: the court still refused to consider the amount in controversy vis-a-vis the removing party, instead deciding to limit its inquiry to the amount at stake for the plaintiff. Accord Coleman, 734 F. Supp. at 720-21; Kennard, 728 F. Supp. at 454; Ferris, 645 F. Supp. at 1361 & n.7.
Measuring the amount from the plaintiff's perspective presents a problem in this case, however, because neither party has set forth any allegations of the amount in controversy with respect to the plaintiff. Rather, they concentrate their efforts on arguing whether the amount in controversy from the Windeyers's perspective exceeds $ 50,000.00. The effect of this shortcoming is that neither party has alleged facts sufficient to invoke this court's jurisdiction under the diversity statute.
Since the Windeyers have not plead sufficient facts to invoke this court's jurisdiction under the diversity statute, the case must be remanded to state supreme court for want of subject matter jurisdiction. 28 U.S.C. § 1447(c); see R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1981) ("burden falls squarely upon the removing party to establish its right to a federal forum"); Sfirakis v. Allstate Ins. Co., No. 91-3092, 1991 U.S. Dist. LEXIS 10374 *4 (E.D. Pa. July 23, 1991) ("Because federal jurisdictional statutes are to be strictly construed, in cases where jurisdiction is questionable, doubts are to be resolved against federal jurisdiction").
The court lacks subject matter jurisdiction over this case. Therefore, the case is remanded to the New York State Supreme Court, Franklin County, pursuant to 28 U.S.C. § 1447(c).
IT IS SO ORDERED.
DATED: June 17, 1992
Syracuse, New York
Neal P. McCurn
Chief, U.S. District Judge