Dunn

OPINION AND ORDER

In a motion to remand this case to state court, plaintiff raises a question of first impression; namely, whether in a diversity action she can escape federal jurisdiction by limiting her recovery in the ad damnum clause in the prayer of the complaint, filed in a California court, to an amount just below the jurisdictionally required $50,000. Plaintiff claims that, notwithstanding her damage allegations of more than twice the jurisdictional minimum, her ad damnum clause purporting to waive damages exceeding $49,900 should defeat federal jurisdiction. Under California law, however, plaintiffs recovery is limited not by her prayer but by the damages she alleges. Accordingly, plaintiffs motion to remand this case to state court is denied.

I.

On April 5, 1993, Terri Dunn sued Pepsi-Cola Metropolitan Bottling Company, Inc. (“Pepsi”), for breach of covenant and defamation in the San Francisco Superior Court, alleging damages in excess of $100,000. Pepsi removed the action to this Court. Four days later, Dunn voluntarily dismissed the case and filed in Municipal Court a complaint identical to the original in all respects except that the second complaint waived damages…