BIGGS, Circuit Judge.
This appeal is taken from a pretrial order entered by the court below dismissing the plaintiff's, Jaconski's, case, based on diversity and jurisdictional amount for "lack of jurisdiction."
The operative facts as they appear from the record follow. On January 23, 1962, Jaconski brought suit to recover damages for personal injuries allegedly sustained by him on the afternoon of August 1, 1961, while he was employed as a pipefitter and welder for Bechtel Corporation.
In March 1962 Avisun and Pangborne served separate but similar interrogatories requiring Jaconski to furnish information regarding the nature and extent of his injuries. On July 26, 1962, Jaconski filed answers to Pangborne's
On December 28, 1964 the plaintiff's pretrial memorandum, then filed, alleged a permanent partial disability and listed as special damages in the amount of $58,500, for loss of past earnings and estimated loss of future earnings, and $200, for medical bills. Avisun, on March 1, 1965, filed a motion to compel the plaintiff to furnish to it up-to-date information regarding the claimed injuries. At a hearing held on March 17, 1965, the plaintiff's attorney agreed to furnish such information before the pretrial conference or be barred from showing additional damages at the trial.
Avisun's answer and the pretrial memoranda of both Pangborne and Avisun raised the defense of lack of necessary amount in controversy. 28 U.S.C. § 1332(a). On April 8, 1965, the pretrial conference was held, but no stenographic
The problem of ascertaining the "sum or value" of the matter in controversy in a suit based on diversity jurisdiction has puzzled the courts for many years.
An uncontroverted allegation that the requisite jurisdictional amount exists is deemed sufficient ordinarily to comply with Rule 8(a)(1). See 2 Moore, Federal Practice § 8.11 at 1666 (2d ed. 1965). However, where the amount in controversy is challenged, the burden of proving the matter in controversy exceeds the jurisdictional minimum rests upon the party alleging the sufficiency of the amount in controversy. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189-190, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Wade v. Rogala, 270 F.2d 280, 284 (3 Cir. 1959). Moreover, in McNutt the Supreme Court stated that even if the jurisdictional amount is not challenged by an adversary "the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence." See 298 U.S. at 189, 56 S.Ct. at 785.
There is small difficulty in applying this rule when the damages claimed are liquidated, but when the damages are unliquidated, as in the instant case, there is no exact yardstick to measure recovery even when most, if not all the operative facts are known. One of the tools developed for determining the intangible factors relating to the amount in controversy is the requirement that a plaintiff must claim the necessary amount in "good faith". Norwood Lumber Corporation v. McKean, 153 F.2d 753 (3 Cir. 1946).
On its face, the phrase "good faith" would seem to imply that the relevant consideration is the plaintiff's state of mind and that, therefore, it is a subjective test. In fact one of the expressions of the rule, whether the demand is colorable and laid for the purpose of giving jurisdiction to the federal court, would suggest this conclusion. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Barry v. Edmunds, 116 U.S. 550, 561, 6 S.Ct. 501, 29 L.Ed. 729 (1886). But it is obvious that the plaintiff's actual mental state can never be satisfactorily measured without recourse to objective facts. Thus the basic criterion for determining "good faith" is that "It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 288-289, 58 S.Ct. 590 (1938). See also Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961); Brough v. Strathmann Supply Co., Inc., 358 F.2d 374 (3 Cir. 1966). The test then is not what amount the plaintiff claims in the ad damnum clause of his complaint, but rather, whether it appears to a "legal certainty" that he cannot recover
We entertain no doubt that a trial judge has the power to determine whether the facts requisite to jurisdiction exist. Wetmore v. Rymer, 169 U.S. 115, 18 S.Ct. 293, 42 L.Ed. 682 (1898). However, the determination of jurisdictional issues must always be such as to enable a reviewing court to ascertain whether the evidence supports the trial court's finding. Id. at 121-122, 18 S.Ct. 293; Shaffer v. Coty, Inc., 183 F.Supp. 662, 665 (S.D.Cal.1960).
The record before us is meager, and the court below did not state the basis for its conclusion that the jurisdictional amount does not exist. Moreover, our review of the record does not permit us to conclude that it is apparent to a "legal certainty" that Jaconski could not recover sufficient damages to constitute the requisite amount.
We are not unmindful of the mounting caseloads in our heavily burdened metropolitan courts and of the very substantial number of cases awaiting trial. In fact the attempt to limit these burgeoning caseloads was one of the major reasons for increasing the jurisdictional amount. S.Rep. 1830, U.S.Code Cong. and Admin.News, 85th Cong.2d Sess. pp. 3099, 3101 (1958). But despite that increase in the jurisdictional amount the statistics published by the Director of the Administrative Office of the United States Courts show that no reduction in private civil litigation, including tort cases, has been effected.
We are dissatisfied with the record here. Counsel for Jaconski was lax. The judge presiding at the March 17th hearing, who was not the judge who presided at the actual pretrial hearing, pointed out to Jaconski's counsel clearly that it was his duty to bring up to date the operative facts relating to his client's damages. Jaconski's counsel replied: "That's my responsibility and I accept that responsibility." He failed in that clearly stated obligation. Jaconski's deposition was taken on April 11, 1963. The deposition was not filed until May 3, 1965, more than two years later. This was a long delay. May 3, 1965 was the day on which the notice of the appeal was filed. But the court below did not inform Jaconski's counsel that it would dismiss the action if information concerning the nature, character and extent of Jaconski's injuries were not brought up to date by the time of the pretrial conference on April 8, 1965, though Jaconski's counsel could, and perhaps should have drawn an inference that since the court was of the view that the record as constituted then and now
If it were not for the unusual procedural difficulties presented by this case we would deem it unnecessary to comment further. We point out, however, that the court below on remand should determine the issue as to whether or not Jaconski's attorney's failure to update the answers to the interrogatories or otherwise to bring up to date on this record the operative facts as to the extent of Jaconski's injuries should limit Jaconski's proof as to the extent of those injuries.
The order of the court below will be vacated and the cause will be remanded with instructions to proceed in accordance with this opinion.
"Mr. Adler (counsel for Jaconski): Your Honor when they furnished their interrogatories I submitted the answers to Pangborne which were almost identical interrogatories, sworn to and —
"Mr. Heckscher: No question about that, we don't care which interrogatories are up to date, but the pretrial memorandum has alleged damages which did not appear to be supported by the previous answers filed, and we would like up-to-date, whether they are our interrogatories that are answered or whether up-to-date information is supplied in answer to Pangborne's interrogatories.
"The Court: Well, at the time of the pretrial conference it will be up to the parties concerned to have their interrogatories up to date. If not up to date at the time of the pretrial conference plaintiff will be limited —
"Mr. Adler: That's right.
"The Court: — and you won't be able to prove it.
"Mr. Adler: That's my responsibility and I accept that responsibility.
"The Court: I don't think you need more than that.
"Mr. Heckscher: Thank you, Your Honor.
"The Court: So that the second order in the petition [sic.] will not be signed.
"Mr. Heckscher: Nor need it be listed as I understand it from what Your Honor has said.
"The Court: No, because the responsibility is on plaintiff's attorney to amend if he chooses to go forward on some phase of damages that are not in the original pretrial memorandum."
The second order requested by Avisun's motion, referred to by the court below as a "petition" is not relevant here.