The opinion of the court was delivered by: LEWIS A. KAPLAN
LEWIS A. KAPLAN, District Judge.
This motion for summary judgment presents the question whether plaintiff, who claims to have been injured on a cruise ship, is barred from recovery by his failure to sue within the time period required by a provision of his ticket, or passage contract.
The evidence most favorable to the plaintiff establishes that on June 10, 1993, plaintiff Alan Cygielman slipped and fell in the kiddie pool aboard the Crown Jewel, a ship owned and operated by defendant Commodore Cruse Line Ltd. ("Commodore"), while en route from St. Thomas to Nassau. Shortly after the accident, two uniformed crew members came to his aid and took him to the ship's doctor, who applied an elastic bandage and sent him on his way. Upon returning to port, plaintiff saw an orthopedic surgeon, who determined that plaintiff had sustained fractures of his tarsal bone but nevertheless discharged plaintiff as ambulatory. The fractures were not set or reduced, nor was a hard cast applied.
The passage contract pursuant to which plaintiff boarded the Crown Jewel contained a time limitation on the commencement of actions such as this. Article 21 states in substance that any suit to recover against the company for loss of life or bodily injury "shall be instituted . . . within 1 year from the day when the loss of life or bodily injury occurred . . . ."
Notwithstanding the one year contractual time limitation, suit was not commenced for at least sixteen months after the alleged accident. On November 1, 1994, plaintiff filed a complaint against Commodore and Cunard Line Ltd. ("Cunard") in the New York Supreme Court, New York County seeking $ 5 million in damages. Cunard was served by the delivery of copies of the summons and complaint to the New York Secretary of State, pursuant to N.Y. BUS. CORP. L. § 306 (McKinney 1986 & Supp. 1995), on November 28, 1994. Commodore was served on January 9, 1995 by personal delivery of copies of the summons and complaint in Coral Gables, Florida.
On or about February 2, 1995, Cunard and Commodore served and filed in this Court an answer and a notice of removal. They now move for summary judgment dismissing the complaint on the ground of untimeliness and, in Cunard's case, on the ground that there is no conceivable basis of liability against Cunard, which merely acted as Commodore's agent in selling the ticket to plaintiff.
Subject Matter Jurisdiction
In an effort to avoid an adverse ruling on the merits, plaintiff claims that this Court lacks subject matter jurisdiction and that the case therefore should be remanded. Notwithstanding his demand for damages of $ 5 million, he now asserts that he cannot possibly recover more than the $ 50,000 jurisdictional amount.
It of course is offensive for a plaintiff to file a complaint for $ 5 million and then, finding himself hoist by his own petard into a forum not to his liking, to have him assert in an effort to escape that he has no realistic hope of recovering even one percent of that amount. Indeed, "offensive" is too mild a term. But this is a court of limited jurisdiction, and jurisdiction may not be conferred upon it by agreement or estoppel. Kokkonen v. Guardian Life Ins. Co. of America, 128 L. Ed. 2d 391, 114 S. Ct. 1673, 1675 (1994); Bender v. Williamsport Area School District, 475 U.S. 534, 89 L. Ed. 2d 501, 106 S. Ct. 1326 (1986). Hence, the Court must determine whether the jurisdictional amount is present.
In order to justify dismissal, "it must appear to a legal certainty that the claim is really for less than the jurisdictional amount . . . ." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 82 L. Ed. 845, 58 S. Ct. 586 (1938). In this Circuit, the damage allegations in the complaint ordinarily must be taken at face value "even where those allegations leave grave doubt about the likelihood of a recovery of the requisite amount. . . ." Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982). This is particularly so where the plaintiff is seeking unliquidated tort damages. Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 785 (2d Cir. 1994).
Here it is perfectly plain that plaintiff has no hope whatever of recovering anything approaching $ 5 million. Nevertheless, the Court is not prepared to conclude to a legal certainty that plaintiff's recovery, if the case went to trial, could not exceed $ 50,000. ...