Giffin v. Smith

ORDER DAUGHERTY, District Judge.

Upon consideration of the motion of defendant to dismiss for want of jurisdiction, the Court finds that said motion should be denied.

The Complaint seeks recovery on a foreign judgment for child support in the amount of $22,185.00 plus interest. The defendant by answer pleads the statute of limitations as to a part of this amount sought to be recovered herein by the plaintiff. Then by Motion to Dismiss for Want of Jurisdiction the defendant urges dismissal herein for a lack of the required jurisdictional amount being involved, because the application of the statute of limitations bars such of plaintiff’s claim to the point that the maximum amount recoverable by plaintiff would be considerably below the required jurisdictional amount.

The statute of limitations is an affirmative defense. 28 U.S.C.A., Rule 8(c), Federal Rules of Civil Procedure. If not pleaded, this defense is waived. Wagner v. Fawcett Publications, 7 Cir., 307 F.2d 409 (1962), certiorari denied, 372 U.S. 909 , 83 S.Ct. 723 , 9 L.Ed.2d 718 .

The fact that a cause of action might be barred by a statute of limitations does not remove jurisdiction from the federal court to hear the action if the jurisdictional amount was sued for . and would be due and owing but for the defense of the statute of limitations. And if the statute of limitations reduces the amount sued for to an amount lower than the jurisdictional minimum, the' Court still has jurisdiction to adjudicate ■ the rest of the claim. 1 Moore, Federal Practice, Section 0.92(1), pages 836-837.

, Accordingly the Motion to Dismiss for Want of Jurisdiction of the defendant is denied.