Opinion
Where ad damnum clauses to various counts set forth figures for unliquidated damages demanded, the District Court, Weber, J., would intervene, in exercise of its discretion, to refuse to sign orders authorizing service until offending material had been expunged.
So held. MEMORANDUM TO COUNSEL
WEBER, District Judge.
Two newly filed actions have been brought before me for certain ex parte action which required me to review the Complaint which had not yet been served. In each instance the ad damnum clauses to the various counts or causes of action set forth very large, very round and very easily remembered figures for the unliquidated damages demanded.
There is no requirement of federal pleading that this be done. The only allegations necessary are that the claim exceeds the jurisdictional amount, where such is required, and the items of special damages shall be specifically stated.
Being unnecessary for the purposes of federal pleading the only motive for insertion of such demands in a pleading is to bring such figure to the attention of prospective jurors. A high figure demand in a Complaint is always prominently publicized, as well as the name of the corporate defendant and any prominent facts alleged. This publicity occurs not only at the time of filing, but at subsequent stages of the litigation before trial.
In Pennsylvania practice it is highly improper for counsel to bring such demands to the attention of the jury at trial [ Joyce v. Smith 269 Pa. 439, 112 A. 549], and the United States District Courts in this state follow that rule [ Stein v. Meyer, 150 F.Supp. 365, E.D.Pa. 1957]. If it is improper to do so by argument, it is also improper to do so by gratuitous statements in a Complaint. The Pennsylvania state practice forbids this, Pa. Rule of Civil Procedure 1044(b) 12 P.S. Appendix. In setting such a standard, Pennsylvania has indicated a general standard of ethical practice. While it is not specifically enjoined upon counsel by the Federal Rules or local Rules of this Court, it is a standard that I have found generally observed. The instances where I have found it not observed in this Court have largely involved pleadings prepared by out-of-state counsel. We might remind local counsel that their function in such cases is more than that of a post box, they have a responsibility for insuring compliance with local standards of practice.
I have usually considered such matters on a motion of defendant to strike the pleaded ad damnum clause as surplusage. I have done so following the reasoning of Judge Follmer in Mitchell v. American Tobacco Co., 28 F.R.D. 315 [M.D.Pa., 1961]. However, in such case the evil which this proceeding seeks to avoid has partly come to pass.
In the present actions the Complaints and an accompanying Petition were immediately presented to the Court. There has been no service. We believe that we may properly intervene at this stage, in the exercise of our discretion, to refuse to sign the Orders authorizing service until the offending material has been expunged in the Complaints by the substitution of a page or pages for the original in which the unnecessary and harmful damage claim has been made. There is no need to repeat the jurisdictional amount in the ad dammum clause; it is sufficient to state that damages are claimed for the wrongs suffered.