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04/24/74 Michael James, v. Gregory Lusby

April 24, 1974

MICHAEL JAMES, APPELLANT

v.

GREGORY LUSBY, ET AL. REHEARING DENIED AUGUST 19, 1974.



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia. 1974.CDC.87

APPELLATE PANEL:

Bazelon, Chief Judge, Wright, Circuit Judge and Wyzanski,* United States Senior District Judge for the District of Massachusetts.

PER CURIAM DECISION

This is an appeal from an order of the District Court of January 11, 1973, which certified the case before us to the Superior Court of the District of Columbia. Appellant urges us to reverse that order and find jurisdiction in the District Court. We decline, and hereby affirm the order of January 11, 1973. I.

This case arose out of events which occurred on December 21, 1971. Appellant, at that time a college student in Michigan visiting his mother for the holidays, and a friend were window shopping near the intersection of 13th and F Streets, N.W. While they were crossing that intersection under the direction of a traffic patrolman, a policeman on a scooter drove close to them and shouted for them to get out of the way. It is undisputed that appellant responded to the warning with an obscenity. The policeman, appellee Lusby, parked his scooter and proceeded to question appellant and his companion who were standing on the sidewalk. After a short interrogation, during which appellant cursed several times, Officer Lusby arrested him for disorderly conduct, *fn1 handcuffed him, and went to telephone for a patrol car.

The appellant was transferred by patrol car to the Fifth Precinct police station. Appellant's mother, who had been informed of her son's whereabouts by his companion, arrived shortly and posted a $10.00 collateral bond to obtain his release. Appellant returned to college in Michigan before the date set for his court appearance, thereby forfeiting his collateral and incurring a criminal record for "disorderly conduct."

On May 12, 1972, appellant filed this action, seeking compensatory and punitive damages of $25,000 each for false arrest and imprisonment, assault and battery, and deprivation of civil rights. The complaint alleged that the action arose under the Constitution and Laws of the United States, specifically, the Civil Rights Act of 1871. *fn2 Jurisdiction in the District Court was asserted under both 28 U.S.C. §§ 1331,*fn3 because it was alleged that the amount in controversy exceeded $10,000, and 1343(3) and (4)*fn4 (1970).

Appellee filed an answer on June 29, 1973, denying both the allegation of the amount in controversy and all factual allegations supporting the claimed violations of civil rights. Depositions by both parties were ordered and taken. An amended complaint was filed on December 21, adding diversity of citizenship as a basis for jurisdiction in the District Court *fn5 and naming as additional defendants the appellee's supervisors and the District of Columbia on the grounds that their negligence in training, instructing and supervising Officer Lusby was a proximate cause of the injuries sustained by appellant. On January 11, 1973, the District Court certified the case to the Superior Court, sua sponte, "upon consideration of the record in this case." Appellant's motion for reconsideration was denied. II.

Appellant's first argument is that the District Court failed to afford him an opportunity to demonstrate that the amount in controversy satisfies the jurisdictional requirement. *fn6 The District Court did not hold a hearing before ordering the certification, nor does appellant request a full evidentiary hearing at this time. He does argue that more of an opportunity must be afforded plaintiffs than was given in this case to justify their claim of jurisdiction.

Appellant refers to a provision of local law, 11 D.C. Code § 922(b)*fn7 as a Congressional mandate that certification be permitted only "at or after a pretrial hearing." The relevant statutory language is reproduced in the margin. Although the phrase "at or subsequent to a pretrial hearing" appears in predecessor statutes to those in question here, *fn8 there has been no definitive judicial interpretation of that phrase in this Circuit requiring a hearing before certification. It is well-established law in this jurisdiction that exercise of the general authority to certify cases to courts of local jurisdiction rests in the sound discretion of the District Court. Gray v. Evening Star Newspaper Co., 107 U.S. App. D.C. 292, 277 F.2d 91 (1960). The standard of review, therefore, is whether the trial court abused that discretion. Block v. District of Columbia, 160 U.S. App. D.C. 380, 492 F.2d 646 (1974).

The issue before the District Court was whether or not the record before it showed that the amount in controversy exceeded $10,000. The determination of this issue is preliminary to the assumption of jurisdiction in the case; it is the affirmative duty of the trial court to inquire into this issue, whether or not it is raised by the parties. McNutt v. General Motors, 298 U.S. 178, 186-87, 80 L. Ed. 1135, 56 S. Ct. 780 (1936). The standard to be applied by the trial court in certifying a case is similar to that in dismissal, and was clearly stated in St. Paul Mercury Indemnity Co. v. Red Cab. Co., 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845 (1938):

The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justiy dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to ...


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