Kosofsky et al v. Byler et al
ORDER denying 11 Motion to Dismiss for Lack of Jurisdiction. Signed by Honorable Jimm Larry Hendren on June 10, 2013. (lw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DAVID KOSOFSKY and
CASE NO. 13-3020
MELVIN BYLER and
Now on this 10th day of June, 2013, the above referenced matter
comes on for this Court’s consideration of Defendants’ Motion to
Dismiss For Lack of Subject Matter Jurisdiction (document #11).
The Court, having reviewed the pleadings of the parties, and all
sufficiently advised, finds and orders as follows:
The plaintiffs commenced this lawsuit on January 30,
plaintiffs are the rightful owners of two tracts of real property
located in Searcy County, Arkansas, and that the defendants have
not acquired ownership of that property by adverse possession. The
plaintiffs also asserts claims for trespass and ejectment.
In the instant motion, the defendants seek to dismiss
this action pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure for lack of subject matter jurisdiction.
argue that the plaintiffs cannot meet the amount in controversy
requirement found in 28 U.S.C. § 1332.
Under 28 U.S.C. § 1332(a)(1), diversity jurisdiction is
conferred on the federal courts in civil actions between citizens
of different states, in which the jurisdictional amount of greater
than $75,000, exclusive of interest and costs, is met.
According to caselaw, “a complaint that alleges the
jurisdiction, but the complaint will be dismissed if it ‘appear[s]
to a legal certainty that the claim is really for less than the
jurisdictional amount.’” Larkin v. Brown, 41 F.3d 387, 388 (8th Cir.
1994)(quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 289 (1938)).
The following facts appear to be undisputed for the
purposes of this motion:
* In April of 2006, the plaintiffs purchased approximately 70
acres of real property in Searcy County, Arkansas for $86,500.
This portion of the real property at issue is referred to as Tract
comprising of approximately 8 acres, adjacent to Tract 1 for
#13,000. This portion of the real property at issue is referred to
as Tract 2.
The defendants own real property adjacent to Tract 1 and
defendant Melvin Byler met concerning a prior grant of written
permission allowing the Bylers’ cattle to enter Tract 1 and Tract
2 to drink from the creek on the property.
Plaintiffs commenced this lawsuit on January 30, 2013.
The defendants state they wish to continue to use a
portion of the property – which they measure at approximately 15
The plaintiffs measure the portion of the property upon
which the Bylers’ cattle previously entered at approximately 26.6
As stated above, in this motion, the defendants argue
requirement for diversity jurisdiction.
Defendants argue that the
portion of the tracts of land upon which the cattle enter – whether
measured at 15 acres or 26.6 acres – is valued at well below
In their response to the motion to dismiss, plaintiffs argue
that the amount in controversy exceeds $75,000 because this action
seeks a declaration that the plaintiffs are the rightful owners of
the entire two tracts of real property – totaling 78 acres – which
Plaintiffs allege that during the January 19 meeting, the
defendant Melvin Byler indicated that he owned all of both tracts
of property by virtue of adverse possession.
Plaintiffs further allege that even if the defendants only
assert that they own, or are entitled to use, a portion of the
property, eliminating or encumbering that portion of the property,
an area which contains a creek, damages the whole.
* Finally, plaintiffs allege that the smaller portion of the
property which the defendants now assert is at issue is valued, by
itself, in excess of $75,000.
Usery v. Anadarko Petroleum Corp., 606 F.3d 1017, 1018
(8th Cir. 2010) establishes that “in a suit for declaratory or
injunctive relief the amount in controversy is the value to the
plaintiff of the right that is in issue.”
[t]he question is not how a plaintiff subjectively values
a right or even what his or her good-faith estimate of
its objective value is: The question is the actual value
of the object of the suit.
In a quiet title action . .
. a district court must determine what the property
interest at issue is worth in the marketplace, which is
a matter of objective fact.
Id. at 1019.
Here, the plaintiffs seek a declaratory judgment that
they are the rightful owners to the entirety of two tracts of real
defendants have not acquired ownership of those two tracts by
The two tracts of property were purchased by
the plaintiffs in 2006 and 2008 for a total of $99,500.
Based on this evidence, the Court finds that plaintiffs have
met their burden to prove that the amount in controversy is
sufficient for diversity jurisdiction by a preponderance of the
Although defendants claim that the actual property at
issue is less than the entire two tracts named in the complaint,
the defendants have not established to a legal certainty that the
claim is for less than the jurisdictional minimum.
See Bell v.
Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009).
The defendants’ motion, therefore, should be denied.
IT IS, THEREFORE, ORDERED that Defendants’ Motion to Dismiss
For Lack of Subject Matter Jurisdiction (document #11) is denied.
IT IS SO ORDERED.
/S/JIMM LARRY HENDREN
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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