Bochenek v. Germann

KAESS, District Judge.

Three damage suits were filed and later consolidated arising from the same incident. After a trial by jury Michael Bochenek, by next friend Joseph Boche-nék, who had sued for damages totalling $100,000, recovered $4,000; Anna Boche-nek, who had sued for damages totalling $15,000, recovered $1,000; Joseph Boche-nek, who had sued for damages totalling $25,000, did not recover any amount due to a mistrial, as the jury could not agree on a decision. The last mentioned ease has been reset for trial in this court.

Defendant asks that plaintiffs’ costs be denied and that defendant’s costs be awarded under 28 U.S.C. § 1332 (b), which provides:

“Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $10,000, computed without regard to any set-off or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.”

The purpose and effect of this statute is clarified by its legislative history, which states (1958 U.S.Code Congressional and Administrative News, page 3099) that:

“In deciding whether to deny costs and/or impose costs on the plaintiff, the court will undoubtedly take into consideration whether the amount claimed was made in good faith or whether it was made simply to get into Federal court.”

This court believes that the plaintiffs did act in good faith when they claimed an amount in excess of the jurisdictional minimum of $10,000.

It Is Therefore Ordered that defendant’s motion Be Denied.