Often litigants want to have their cake and eat it, too. For example, in an individual tort case, a plaintiff may want the right to try to ring the bell with punitive damages, and yet she also wants to stay in state court to take advantage of perceived procedural or other advantages offered by the state court system. Thus, there is a tension between maximizing recoveries and limiting the amount at issue to something below the $75,000 jurisdictional minimum for federal court.
But when you are straddling the pleading fence, you sometimes can injure yourself. In Green v. The Dial Corporation, 2011 WL 5335412 (E.D. Mo. Nov. 4, 2011), the plaintiff alleged that she suffered personal injuries to "her skin and all of the anatomical structures thereof" from using one of Dial's body washes. The complaint prayed for "more than TWENTY FIVE THOUSAND DOLLARS ($25,000) but which sum when aggregated with sums prayed for in all other counts herein does not exceed SEVENTY FIVE THOUSAND DOLLARS ($75,000), for punitive damages, expenses and her costs, together with such other further relief as this Court shall deem appropriate under the circumstances." Id. at *1.
Dial removed the case to federal court, arguing that the wording of the complaint makes it obvious that the plaintiff is seeking punitive damages in addition to less than $75,000 in compensatory damages, thus making the amount at issue over the jurisdictional minimum. The plaintiff resisted, claiming that what she intended her complaint to mean was that she only sought less than $75,000.
The court -- applying precedent that the plaintiff is the master of her own complaint -- decided to allow the plaintiff to go back to state court, with a catch: the court would tolerate no funny business whereby the plaintiff, once released back to state court, would seek punitive damages on top of $75,000.
Thus, the court made its remand order conditional on plaintiff -- and her lawyer -- signing and submitting to the federal court a "binding affidavit" attesting to the fact that "Plaintiff does not and will not seek or accept damages in excess of $75,000, exclusive of interests and costs in this case." In other words, plaintiff could return to state court, but only upon finally establishing once and for all that she would not ever obtain more than $75,000 in the lawsuit.
This Dial opinion can come in handy when plaintiffs have engaged in cagy pleading and seek remand to state court. Which reminds me of the advertising campaign from the 1970s: "Aren't you glad you use Dial? Don't you wish everyone did?"