• September 19, 2013

EIGHTThe square-dance step called “Dosey Do,” Do Si Do, or Dosado, derives from the french dos-à-dos, or back-to-back.  Dancers approach one another, pass one another (partner to your right), are back-to-back, and then return (partner to your left) to where you started.

The dance step is a metaphor for courtship, where we start apart, we grow closer, we’re B2B — almost as close as can be, but, at the same time, tantalizingly apart — and then we’re further apart, again, facing one another.

Sometimes, in human relationships, we find ourselves facing in opposite directions than you would expect — like when a personal injury plaintiff argues that “to a legal certainty” her damages are for less than $75,000 and a personal injury defendant argues that the damages alleged against it more likely than not exceed $75,000.  This is the do-si-do step in the jurisdictional jig where civil plaintiffs and defendants bicker over which courthouse to go to in order to consummate their relationship.

In the diversity jurisdiction pas-de-deux, if a plaintiff makes a settlement demand of $50,000, does that suggest that “the amount in controversy” is less than $75,000 or that it is more tha $75,000?

I would have thought less.  If a plaintiff makes a $50,000 demand, it would seem to me that a defendant could, with a fair degree of certainty, resolve the action for less than $75,000.

But the issue is not whether the defendant could settle for less than $75,000.  The question is how much is “at stake,” as in how much would be argued as damages at trial. And courts have held (and, this past week the U.S. District Court for the District of Minnesota (Ericksen, J.)) that a settlement demand of $50,000 or $60,000 “implies that the stakes at trial comfortably exceed” the $75,000 jurisdictional minimum.  Such a settlement demand is taken as evidence supporting the defendant in the diversity jurisdiction dance.

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