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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA V. : BANK OF AMERICA, N.A. : MEMORANDUM OPINION This is an attempt to resurrect a dead wolf by dressing it in sheep's clothing, and it will not succeed. The matter is before : : CIVIL NO. S 02-3719

the Court on the defendant's motion to dismiss. Because the issues have been fully and well briefed, no oral hearing need be held. Local Rule 105.6, D.Md. By Memorandum Opinion and Order entered October 7, 2002, in National Union Fire Ins. Co. of Pittsburgh, PA v. Allfirst Bank, ___ F.Supp.2d ___, 2002 WL 31261028 (D.Md. 2002), Judge Nickerson of this Court dismissed, for lack of federal subject matter

jurisdiction, all claims asserted by the plaintiff against this defendant (there were others), by way of subrogation, concerning a check in the amount of $76,142.00, which was one of a series of checks drawn on a checking account maintained by the plaintiff's insured, Kaiser. A thieving employee (one Mack) had supplied

Kaiser with the names of fictitious payees to whose order the checks were drawn. This is not an uncommon practice, and is one See

dealt with expressly with Uniform Commercial Code (U.C.C.). U.C.C. sections 3-404 and 3-405.

Working with a curiously named

accomplice (Venus Baldwin), Mack caused the checks to be deposited in a number of banks, including the present defendant. The check

underlying Count 1 was deposited into the account of a fictitious payee at a Bank of America branch in Jacksonville, Florida. the tale, as to the Bank of America, does not end But

there.

Apparently, the proceeds of this and other checks were subsequently wire transferred, by way of a transfer order in the amount of $113,231.65, from various accounts to a Bank of America account in the name of Venus Baldwin. A subsequent transfer of $75,000 from

the Bank of America account was made to Venus's daughter, Krystal. Count 1 of the present claim attempts to resurrect the claim as to the $76,142.00 check that was dismissed by Judge Nickerson for lack of federal subject matter jurisdiction, National Union Fire Ins. Co. of Pittsburgh, PA v. Allfirst Bank, ___ F.Supp.2d ___, 2002 WL 31261028 (D.Md. 2002). Perhaps recognizing the

collateral estoppel effect of Judge Nickerson's finding regarding the amount in controversy, the plaintiff limits the cash amount sought in Counts 1 and 2 to $71,331.53, which is, of course, below the jurisdictional amount in diversity cases under 28 U.S.C. section 1332. $71,331.53 (Of course, plaintiff's attempt to jack up its to an amount equal to or exceeding the

claim

jurisdictional amount specified by inserting in the claim in Count 1 as "at least $71,331.53" is wholly ineffectual. Jurisdictional

amounts must be claimed in good faith, and, in light of Judge

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Nickerson's ruling, no amount could be claimed as to Count 1 exceeding $71,331.53 in good faith.) The plaintiff goes on, however, to assert four more claims against Bank of America, which, it says, would entitle it to recover more than the jurisdictional amount of $75,000, and seeks to maintain the first count as within the Court's supplemental jurisdiction. The first of these new claims is for "money had and received," because the defendant has not returned to plaintiff (or Kaiser) any of the so-called "ill gotten funds." (Complaint

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