Allen v. R & H Oil & Gas Co.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 94-60444
_______________
BARBARA ALLEN, et al.,
Plaintiffs-Appellants,
versus
R & H OIL & GAS COMPANY, FARRAR OILFIELD SERVICE
AND EQUIPMENT CO., and TRI-STATE OIL SERVICES, INC.,
Defendants,
TRI-STATE OIL SERVICES, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________
(August 29, 1995)
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The 512 plaintiffs of a joint, state-law tort action (the
"Allen plaintiffs" or "plaintiffs") appeal the removal of their
claims to federal court. They contend that the district court
erred in finding federal subject-matter jurisdiction under 28
U.S.C. § 1332 (diversity of citizenship), because it improperly
"aggregated" their claim for punitive damages as a "whole" in
reaching the $50,000.01 amount-in-controversy mark for each
plaintiff. They also claim the district court misapplied the
standard for assessing the amount in controversy when plaintiffs
challenge defendants' assertion of removal jurisdiction. Because
we find that each plaintiff has an undivided claim for the full
amount of the alleged punitive damages, which on the face of the
complaint more likely than not exceeds the jurisdictional amount,
we affirm.
I.
On May 20, 1990, an oil and gas well exploded near the town of
Heidelberg, Mississippi, causing evacuation of the area. According
to the plaintiffs, who are local residents, they suffered property
damage and wide-ranging, physical and mental injuries from the
explosion and release of toxic fumes.
Subsequently, the 512 Allen plaintiffs jointly filed suit in
Mississippi state court against R & H Oil & Gas Company, Farrar
Oilfield Service and Equipment Company, and Tri-State Oil Services,
Inc. (collectively, the "defendants"), which operated the well.
The Allen plaintiffs' individual claims))the suit is not a class
action))are based upon theories of negligence and strict liability,
and they seek compensatory and punitive damages. No specific
amount of damages was pled.
The defendants, which are Louisiana corporations, petitioned
for removal to federal court, asserting that there was complete
diversity of citizenship between the set of plaintiffs and the set
of defendants. See 28 U.S.C. §§ 1441, 1446. They also contended,
in conclusory terms, that the $50,000.01 amount-in-controversy
requirement was met. Removal was granted.
2
The plaintiffs, in the discovery phase of the case before a
magistrate judge, then moved to remand on the ground that the
amount-in-controversy requirement was not met. The gravamen of
their motion was that the defendants had failed to present any
evidence that showed that each plaintiff's claim exceeded § 1332's
$50,000 requirement.
The defendants, in response, made two arguments. First, they
contended that the alleged punitive damage award could be assessed
against each individual plaintiff. In the alternative, they argued
that an exception to the amount-in-controversy's non-aggregation
principle applied, so that each individual plaintiff's potential
punitive damage award could be aggregated and applied to the
$50,000 requirement.
After considering the parties' memoranda, the magistrate
judge, in a "bare bones" order, recommended denying remand. In
upholding the order, the district court reasoned that the aggrega-
tion of the potential punitive damages award was proper, as each
plaintiff shared in a common and undivided interest in the claim.1
The court also considered the plaintiffs' motion to "clarify"
their complaint by amendment to seek explicitly less than the
requisite amount in compensatory and punitive damages. This motion
1
The court's full reasoning is as follows:
The 512 plaintiffs elected to file this case as a single action
against defendants and, while their claims for compensatory
damages are separate and divisible, the court, giving due consid-
eration to the nature and purpose of punitive damages, concludes
that the same cannot be said as to plaintiffs' punitive damage
claim. Punitive damages are sought for a single wrong to the
plaintiffs who thus have a common and undivided interest in any
punitive damages award.
3
likewise was denied on the ground that such post-petition amend-
ments were mooted by the finding that the punitive damages alone
met the requisite amount. Finally, the district court, recognizing
the split among district courts in this circuit on the issue of
aggregation of punitive damages, certified this case for immediate
appeal via 28 U.S.C. § 1292(b).
II.
Removal is controlled by 28 U.S.C. § 1441, which provides, in
relevant part, that "any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants, to
the district court of the United States . . . ." Such original
jurisdiction exists, for example, if there is "diversity of
citizenship," such as where the suit is between citizens of
different states and the amount-in-controversy exceeds $50,000.
28 U.S.C. § 1332. Here, plaintiffs do not dispute diversity but
question the application of the amount-in-controversy standard.2
2
The dissent notes that on its face, the complaint alleges that one
of the defendants, Farrar Oilfield Service and Equipment Co. (Farrar"), has
its principal place of business in Mississippi. If that were so, there would
be no diversity of citizenship. See 28 U.S.C. § 1332(c)(1)(deeming "citizen-
ship" for corporations to be either state of incorporation or state where
defendant has its principal place of business). The defendants, however,
argued in the district court that Farrar's principal place of business is not
Mississippi. And, while making no explicit findings of fact, the district
court implicitly agreed by finding subject-matter jurisdiction. No party
continues to press this issue. Accordingly, while we recognize our duty to
determine jurisdiction sua sponte, if necessary, see Mosley v. Cozby,
813 F.2d 659 (5th Cir. 1987) (per curiam), we see no reason to question this
implicit finding.
4
A.
The Supreme Court has long interpreted § 1332's phrase "matter
in controversy" not to allow multiple plaintiffs to add together
"separate and distinct demands, unite[d] for convenience and
economy in a single suit," to meet the requisite jurisdictional
level. See Snyder v. Harris, 394 U.S. 332, 336 (1969) (quoting
Troy Bank v. A.G. Whitehead & Co., 222 U.S. 39, 40 (1911)); Zahn
v. International Paper Co., 414 U.S. 291, 301 (1973) ("[O]ne
plaintiff may not ride in on another's coattails.") (citation
omitted).3 The general rule is that each plaintiff who invokes
diversity of citizenship jurisdiction must allege damages that meet
the dollar requirement of § 1332.
"Aggregation" of damages allegedly owed to separate plain-
tiffs, however, may be permitted in the limited situation where
"two or more plaintiffs unite to enforce a single title or right in
which they have a common and undivided interest." Snyder, 394 U.S.
at 335.4 Unfortunately, the "common and undivided" test retains an
amorphous quality. In applying this standard, many courts have
3
But see Free v. Abbott Labs. (In re Abbott Labs.), 51 F.3d 524 (5th
Cir. 1995) (holding that under a plain meaning analysis, the Judicial Improve-
ments Act of 1990, as codified in part at 28 U.S.C. § 1367, overrules Zahn in
the class action context), suggestion for rehearing en banc filed.
4
See Pinel v. Pinel, 240 U.S. 594, 596 (1916) (no aggregation of
claims to shares of an estate arising from one will); Troy Bank, 222 U.S. at
39 (aggregation allowed for enforcement of state law vender's lien as that
claim was single and undivided); Clay v. Field, 138 U.S. 464, 479-80 (1891)
(no aggregation for claim of dower and partnership profits arising from one
tract of land); Eagle Star Ins. Co. v. Maltes, 313 F.2d 778, 780 (5th Cir.
1963) (examining general rule); see generally 1 JAMES W. MOORE, MOORE'S FEDERAL PRACTICE
¶ 0.97[3], at 917 (2d ed. 1995) ("Basically, aggregation is allowed when the
plaintiffs unite to assert a 'common,' 'joint,' 'integrated' or 'undivided
right.").
5
failed to eschew labels. And stating the maxim is far easier than
determining the principles that undergird it. The standards that
have developed in this area largely have their origins in pre-
Federal Rules caselaw and take their modern day form by only
judicial application. Accordingly, we address the recognized
guidelines that so far have evolved before applying them to the
punitive damages claim here.
Courts generally agree that the plaintiffs' claims of right
must be "integrated," meaning that their respective rights to
damages arise from the same legal source. See Texas & Pac. Ry. v.
Gentry, 163 U.S. 353, 362-63 (1896) (holding aggregation proper
where plaintiffs "all claimed under one and the same title").5 The
application of this standard depends upon the history-laden notion
of what constitutes an individual cause of action.6 Therefore, a
necessary first step is an examination of the configuration of the
state-law right at issue. See, e.g., Asociacion Nacional de
Pescadores a Pequena Escala o Artesanales de Colombia (ANPAC) v.
Dow Quimica de Colombia S.A., 988 F.2d 559, 563-64 (5th Cir. 1993)
5
See also Insurance Co. of N. Am. v. Chinowith, 393 F.2d 916, 917-18
(5th Cir.) (finding Texas statute on workmen's compensation creates one right
of recovery), cert. denied, 393 U.S. 990 (1968); Kelly v. Hartford Accident &
Indem. Co., 294 F.2d 400, 409 (5th Cir. 1961) (five plaintiffs enforcing
single wrongful-death cause of action), cert. denied, 368 U.S. 989 (1962);
Phillips Petroleum Co. v. Taylor, 115 F.2d 726, 728 (5th Cir. 1940) (multiple
plaintiffs suing to enforce mineral lease), cert. denied, 313 U.S. 565 (1941).
6
Therefore, this rule is not to be confused with that of joinder under
FED. R. CIV. P. 20, which requires that plaintiffs' claims be transactionally
related. The fact that claims arise from the same transaction or occurrence
is an insufficient justification to allow aggregation. See 1 MOORE, supra,
¶ 0.97[3], at 920 ("The appropriateness of aggregation depends upon the nature
of the plaintiffs' claims rather than on the source of the right to sue or
transactional relatedness of the claims.").
6
(examining Texas state law to determine whether fishermen had
common property right in fishing stock harmed by oil spill), cert.
denied, 114 S. Ct. 685 (1994) (hereinafter "ANPAC"). Again, the
purpose of this inquiry is to determine whether the state law claim
creates one right of recovery. Id. at 564.
Another factor that courts long have used to determine whether
a claim is common or separate is the apportionment of the award.
A claim is more likely to be integrated if the defendant has no
interest in the apportionment of an award among the plaintiffs.7
Plaintiffs, of course, may have strong interests in the
eventual distribution of awards, but the ultimate separability of
a claim does not defeat its integrated quality. "Occasionally,
plaintiffs seek to enforce a common interest that is separable
amongst themselves. In such cases, the common nature of the
plaintiffs' interest vis-a-vis the defendant dictates that
aggregation is proper." 1 MOORE, supra, ¶ 0.97[3], at 921.8
7
See Berman v. Narragansett Racing Ass'n, 414 F.2d 311, 316 (1st Cir.
1969) ("[I]t has long been settled that one factor of considerable importance
on the issue of whether the plaintiffs' interests are aggregable is whether
the defendant has an interest in how the fund will be apportioned if plain-
tiffs prevail."), cert. denied, 396 U.S. 1037 (1970). See also Green County
v. Thomas' Executor, 211 U.S. 598, 602 (1909) (finding aggregation proper
where defendant "has no interest or concern in the proper division of the
amount due . . . among those who are entitled to share the proceeds of the
verdict."); Gibson v. Shufeldt, 122 U.S. 27, 30 (1887) ("[T]he test is
whether they claim it under one common right, the adverse party having no
interest in its apportionment or distribution among them . . . ."); The
"Connemara", 103 U.S. (13 Otto) 754, 755 (1881) ("It was a matter of no
consequence to the owners of the property saved how the money recovered was
apportioned among those who had earned it."); Sellers v. O'Connell, 701 F.2d
575, 579 (6th Cir. 1983) ("An identifying characteristic of a common and
undivided interest is that if one plaintiff cannot or does not collect his
shares, the shares of the remaining plaintiffs are increased.").
8
See Bullard v. City of Cisco, 290 U.S. 179, 188-89 (1933) (aggrega-
tion not prevented because recovery from bonds and coupons held in trust
(continued...)
7
B.
Keeping these standards in mind, we must decide whether joint
claims for punitive damages under Mississippi law present a united
claim for a common and undivided interest. This question is an
issue of first impression on the appellate level in this circuit.9
8
(...continued)
ultimately would go to beneficiaries); Clay, 138 U.S. at 479 ("The general
principle observed in all is, that if several persons be joined in a suit in
equity or admiralty, and have a common and undivided interest, though separa-
ble between themselves, the amount of the joint claim or liability will be the
test of jurisdiction.").
9
District courts in this circuit, however, have disagreed over the
question. In Lailhengue v. Mobil Oil Corp., 775 F. Supp. 908, 910-14 (E.D.
La. 1991), the court held that punitive damages arising from a single refinery
explosion could be "aggregated." The court found that the plaintiffs had a
"common and undivided interest" in the damages, as their right to punitive
damages arose from a single event or act of conduct (the explosion), the
defendant's conduct was the same with respect to each plaintiff, and the
plaintiffs had a collective interest in creation of a fund sufficient to deter
any alleged misconduct in the future. Id. at 913. Moreover, if the claims
were treated as a class action, no individual plaintiff would have the right
to assert them individually. Id. at 913-14. Nor would plaintiffs' circum-
stances affect the award. Id. at 914. In sum, that court viewed punitive
damages as a policy-created, public interest owed to the class of plaintiffs
as a whole; the award is aimed at deterring wrongful conduct and is conceptu-
ally different from compensation for harm to any individual plaintiff. See
also In re N. Dist. of Cal. "Dalkon Shield" IUD Prods. Liability Litig., 526
F. Supp. 887, 911 (N.D. Cal. 1981), vacated on other grounds, 693 F.2d 847
(9th Cir. 1982), cert. denied, 459 U.S. 1171 (1983); Martin v. Granite City
Steel Corp., 596 F. Supp. 293, 297 (S.D. Ill. 1984).
A second class of cases treats punitive damages as individual awards
that are owed to each plaintiff in proportion to their total number. In
Granier v. Eparka Shipping Co., No. 94-3990, 1995 U.S. Dist. LEXIS 2569 (E.D.
La. Mar. 1, 1995), the court held that no "common and undivided" interest
existed for a group of plaintiffs even if their punitive damages claims all
arose from the same event, because under state law each plaintiff could raise
a separate claim for punitive damages. Id. at *4. That court also relied
upon a reading of Lindsey v. Alabama Tel. Co., 576 F.2d 593, 595 (5th Cir.
1978), in which we remanded a class action to state court on the ground that
the plaintiff had failed to allege the number of persons in the class, making
it impossible to determine the actual amount sought per plaintiff. Signifi-
cantly, the language of the opinion suggests the court was including the total
of the punitive damages in this calculation. Id.; see also Garrett v.
Blanton, No. 89-4367 1993 U.S. Dist. LEXIS 12196 (E.D. La. Aug. 27, 1993)
(treating punitive damage claims separately and distinguishing Lailhengue and
like cases on the ground that they were class actions where plaintiffs joined
to enforce common interest), appeal dism'd, 32 F.3d 567 (5th Cir. 1994) (per
curiam) (unpublished).
A final class of cases alternatively finds that punitive damages are
(continued...)
8
We begin by examining the nature of punitive damages.
Punitive damages punish. The almost unanimous rule is that
"[p]unitive damages by definition are not intended to compensate
the injured party, but rather to punish the tortfeasor whose
wrongful action was intentional or malicious, and to deter him and
others from similar extreme conduct." City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 267 (1981).10
Mississippi's controlling law on punitive damages follows the
majority rule. According to the Mississippi Supreme Court, a
reasonable instruction on the state's law of punitive damages is as
follows:
Punitive damages are added damages awarded for public
service in bringing a wrongdoer to account, as an example
9
(...continued)
either not a common and undivided right or that the defendant's proof of the
quantum of damages is insufficient. See Chadwick v. Shell Oil Co., 828 F.
Supp. 26, 28 (E.D. La. 1993) (speculating that aggregation might be proper,
but refusing to find jurisdiction because of insufficient proof of supporting
amount); Joseph v. Shell Oil Co., No. 94-3005, 1994 U.S. Dist. LEXIS 18310
(E.D. La. Dec. 16, 1994) (holding that claim for punitive damages under
Louisiana law was not common and undivided and/or amount was speculative);
Clement v. Occidental Chem. Corp., No. 94-1315, 1994 U.S. Dist. LEXIS 12387
(E.D. La. Aug. 26, 1994) (same); Becnel v. Marathon Oil Co., No. 94-1838,
1995 U.S. Dist. LEXIS 4860 (E.D. La. April 10, 1995) (same); Anderson v.
Shell Oil Co., No. 93-2235, 1994 U.S. Dist. LEXIS 17996 (E.D. La. Dec. 14,
1994) (insufficient proof of quantum).
10
See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19 (1991)
(finding that under most states' laws, "punitive damages are imposed for
purposes of retribution and deterrence"); Gertz v. Robert Welch, Inc., 418
U.S. 323, 350 (1974) (Punitive damages "are not compensation for injury.
Instead, they are private fines levied by civil juries to punish reprehensible
conduct and to deter its future occurrence."); RESTATEMENT (SECOND) OF TORTS § 908.
One commentary states that only the decisional law of Connecticut, Michigan,
and New Hampshire recognizes a compensatory function for punitive damages. 1
LINDA L. SCHLUETER & KENNETH R. REDDEN, PUNITIVE DAMAGES § 1.4(B), at 17 & n.3 (2d ed. 1989).
A more recent commentary adds Texas but omits New Hampshire. See 1 JAMES D.
GHIARDI & JOHN J. KIRCHER, PUNITIVE DAMAGES LAW AND PRACTICE, tbl. 4-1, at 4-47 to 4-52 (1994)
(summary table on states' positions on punitive damages). In contrast to the
conclusion reached by Ghiardi and Kircher regarding Texas law, however, this
court in Estate of Moore v. Commissioner, 53 F.3d 712 (5th Cir. 1995), has
held that under Texas state law, punitive damages have no compensatory
purpose.
9
to warn and deter others from repeating the same act.
They are never awarded to benefit the injured party or as
a matter of right, but rather to punish and to compel the
wrongdoer to have due and proper regard for the rights of
the public.
McGowan v. Estate of Wright, 524 So. 2d 308, 310 (Miss. 1988); see
also Wesson v. United States, 48 F.3d 894, 899-900 (5th Cir. 1995)
(examining nature of punitive damages under Mississippi law).
Mississippi's legislature recently codified this view of the law,
fully effective as of July 1, 1994. See MISS. CODE ANN. § 11-1-65
(Supp. 1994).
Punitive damages in Mississippi therefore are fundamentally
collective; their purpose is to protect society by punishing and
deterring wrongdoing. Id.; see 1 SCHLUETER & REDDEN, supra, §§ 2.0 to
2.2 (examining purposes and policies behind punitive damages).
Their focus is not any one individual plaintiff; instead, the award
is tailored to the defendant's wealth and wrongdoing. See Andrew
Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1190 (Miss.
1990) (examining factors that juries may consider in determining
quantum of punitive damages award); see also MISS. CODE ANN. § 11-1-
65(1)(e) (listing factors for jury to consider). The benefits of
the award are meant to accrue to society.
Because punitive damages in Mississippi are not compensatory,
they are individual awards in function only. While separate
plaintiffs may seek an award in separate cases,11 the narrow right
11
These individual suits appear functionally separate, since caselaw,
albeit limited, supports the argument that previous awards would not limit the
ability of subsequent plaintiffs to be awarded further punitive damages. See
ABA SPECIAL COMM. ON PUNITIVE DAMAGES, PUNITIVE DAMAGES: A CONSTRUCTIVE EXAMINATION 71-85 (1986)
(continued...)
10
to seek such damages exists only because public policy as expressed
through state statutes and the common law so dictate. See
generally 22 AM. JUR. 2D DAMAGES § 734, at 787 (1988) ("So viewed,
punitive damages are allowed on grounds of public policy and in the
interest of society and for the public benefit.") (footnotes
omitted). An individual's damages or harm is relevant only to
assessing the defendant's wrongdoing.12
Finally, the general rule is that a plaintiff does not have a
claim of right to punitive damages, and "it is always within the
discretion of the jury or trial judge to withhold them." W. PAGE
KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 2, at 14 (5th ed.
1984); see Wirtz v. Switzer, 586 So. 2d 775, 783 (Miss. 1991)
("The award of punitive damages, along with the amount of such, are
[sic] within the discretion of the trier of fact."). In other
words, a claim for punitive damages is not by itself an independent
tort. Hence, it is only because of the unique nature of these
exemplary awards that they exhibit some of the characteristics of
11
(...continued)
(examining the potential for multiple punitive damage award, "[o]ne of the
thorniest and most hotly contested issues in punitive damages today"); Andrea
G. Nadel, Annotation, Propriety of Awarding Punitive Damages to Separate
Plaintiffs Bringing Successive Actions Arising Out of Common Incident or
Circumstances Against Common Defendant or Defendants ("One Bite" or "First
Comer" Doctrine), 11 A.L.R. 4th 1261 (1994) (collecting cases).
12
The RESTATEMENT (SECOND) OF TORTS § 908(b), for example, states that "[i]n
assessing punitive damages, the trier of fact can properly consider the
character of the defendant's act, the nature and extent of the harm to the
plaintiff that the defendant caused or intended to cause and the wealth of the
defendant." (Emphasis added.) Thus, while punitive damages are assessed in
part by measuring the harm to an individual plaintiff, that focus occurs
because that factor is relevant to the degree of the wrong. No principle
limits the measurement to the harm to one plaintiff where the defendant's
actions harmed many.
11
a separate claim of right.
C.
Accordingly, while punitive damages do not fall neatly into
either the "non-aggregation" caselaw or the "common and undivided
interest" exception, the unique nature of these awards requires, at
least in Mississippi, that the full amount of alleged damages be
counted against each plaintiff in determining the jurisdictional
amount. As punitive damages are collective awards, each plaintiff
has an integrated right to the full amount of an award. An award's
ultimate distribution does not change this result.
Punitive damages are, to use the language of the caselaw,
undivided claims of right with a potentially separable award.
Here, each of the 512 plaintiffs was empowered to bring a claim for
punitive damages separately. The fact that they choose not to
pursue their claims individually does not limit each plaintiff's
alleged entitlement to the award; it only affects its distribu-
tion. The limiting factor here was the plaintiffs' decision to
file jointly.
Of course, a defendant's interest in seeing individual
plaintiffs' cases fail is greatly affected by the procedural
posture of such claims. In class actions or multi-plaintiff suits,
the defendant's potential exposure to a large punitive damage award
is not affected by the failure of individual claims as long as one
plaintiff is successful. Accordingly, in that situation, the
defendant has no interest in the distribution of the award, a fact
12
that has long supported the conclusion that the plaintiff's claims
of right are common and undivided. See, e.g., Berman, 414 F.2d at
316.
Where a defendant faces a series of individual claims, it is
affected strongly by the success or failure of each individual
claim for punitive damages, because the general rule is that
previous awards are not a limiting factor on subsequent awards. We
thus recognize that while plaintiffs generally share an undivided
interest in being awarded punitive damages, that interest is not
common in the sense that there is one and only one award that they
would split equally.
Nonetheless, we do not find that the potential for multiple
liability makes the plaintiffs' claims separate. The seeming
anomaly of multiple exposures for punitive damages arising out of
the same conduct is justified because of its extreme potential to
punish and deter. See Maxey v. Freightliner Corp., 450 F. Supp.
955, 962 (N.D. Tex. 1978) (Higginbotham, J.) (examining Texas state
law), aff'd, 623 F.2d 395 (5th Cir. 1980), reh'g on other grounds,
665 F.2d 1367 (5th Cir. 1982) (en banc).13 Such a harsh, and to
13
In Maxey, the district court examined the problem of punitive
damages in the mass torts and products liability area in some detail:
[W]hen a plaintiff attempts to recover punitive damages urging
willful conduct, a defendant feels the pinch of multiple exposure.
The pinch is that the amount of an exemplary award is not wholly
controlled by the extent of injury suffered by the immediate
plaintiff so that multiple cases can indeed by devastating. See
Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967).
Arguably, substantive right has here outstripped its procedural
brother because there is no available device for distribution of
an exemplary damage award among all injured. But because exem-
plary damages do not have a compensatory function, difficulty in
equitably distributing awards is not the prime problem. In other
(continued...)
13
some absurd, result is "tolerated as a price of private achievement
of a public goal," not because it provides a windfall to individual
plaintiffs. Id. The award is not the plaintiffs' but society's.
Finally, under the accepted view of punitive damages as a
public good, no aggregation))meaning the addition of separate
claims))is necessary, as each plaintiff's share of an award is not
added up to exceed $50,000))just as one award does not subtract
from a future claimant's entitlement. Instead, the claims, while
jointly tried, are treated as belonging to each plaintiff for
jurisdictional purposes. In sum, because of the collective scope
of punitive damages and their nature as individual claims under
Mississippi law, we hold that under Mississippi law the amount of
such an alleged award is counted against each plaintiff's required
jurisdictional amount.
13
(...continued)
contexts, the windfall nature of exemplary awards is tolerated as
a price of private achievement of a public goal of deterrence.
But pointedly those cases are in procedural contexts which have
available devices for preventing deterrence from becoming destruc-
tion. This is not to denigrate the decision of the jury. Each
jury has before it only one case))it is the aggregate effect of
several juries' faithful adherence to the law that poses risk of
ultimate destruction. This is true although each award of exem-
plary damages was by an accurately instructed and wholly fair
jury. The hazards presented by separate awards of exemplary
damages for design defects common to thousands of products are
real and apparent. Understandably, each plaintiff's counsel dons
the robes of the public interest. And the premise of the private
attorney general's role is that private interests of a plaintiff
and the public are parallel. The rub, however, is that after the
first award of exemplary damages, that parallelism is lost.
Present tort law accepts the idea that manufacturers ought to be
checked by deterrent based remedies. Yet we ought not in our
quest for public safety lose sight of the obvious))with no prod-
ucts, there are no consumers.
450 F. Supp. at 962.
14
III.
The plaintiffs also raise the issue of the proper burden of
proof for measuring a defendant's assertion of the jurisdictional
amount. While this issue has not been without some controversy in
this circuit, recent caselaw has settled much of it.
A.
While it is well settled that the removing party bears the
burden of establishing the facts necessary to show that federal
jurisdiction exists, Gaitor v. Peninsular & Occidental S.S. Co.,
287 F.2d 252, 253-54 (5th Cir. 1961), we have applied different
standards of proof depending upon whether the complaint alleges a
dollar amount of damages. Where the plaintiff has alleged a sum
certain that exceeds the requisite amount in controversy, that
amount controls if made in good faith. St. Paul Mercury Indem. Co.
v. Red Cab Co., 303 U.S. 283, 289 (1938). In order for a court to
refuse jurisdiction "it [must] appear to a legal certainty that the
claim is really for less than the jurisdictional amount." Of
course, if a plaintiff pleads damages less than the jurisdiction
amount, he generally can bar a defendant from removal.14 Thus, in
14
We recently have noted that this rule may allow plaintiffs to
manipulate federal jurisdiction if their pleadings do not limit the actual
damages they ultimately may collect. De Aguilar v. Boeing Co., 47 F.3d 1404,
1410 (5th Cir. 1995) (hereinafter "de Aguilar II"). Accordingly, we held that
in cases where an exact amount has been pled, if a defendant can prove by a
preponderance of the evidence that the amount in controversy exceeds the
jurisdictional amount, removal is proper unless the plaintiff shows that at
the time of removal he was legally certain not to be able to recover that
amount. Id. at 1412. In other words, where the plaintiff's claims can be
proved to be of the type that are worth more than $50,000, they can be removed
unless the plaintiff can show he is legally bound to accept less.
15
the typical diversity case, the plaintiff remains the master of his
complaint.
The converse situation to St. Paul Mercury is where a
plaintiff fails to specify the amount in controversy. This
situation))not unusual in this circuit, as both Texas and Louisiana
state civil procedure disallows damage claims for specific amounts,
see TEX. R. CIV. P. 47; LA. CODE CIV. PROC. ART. 893))does not impose
the same "legal certainty" test. Instead, "[w]hen the plaintiff's
complaint does not allege a specific amount of damages, the
removing defendant must prove by a preponderance of the evidence
that the amount in controversy exceeds $50,000." De Aguilar v.
Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993) (hereinafter "de
Aguilar I").
We have never listed explicitly what types of proof are
acceptable under this standard. Some caselaw, however, guides the
district court's analysis. First, a court can determine that
removal was proper if it is facially apparent that the claims are
likely above $50,000. See de Aguilar I, 11 F.3d at 57; cf. ANPAC,
988 F.2d at 566 (holding, in part, that remand was proper where the
amount was not otherwise "facially apparent"). If not, a removing
attorney may support federal jurisdiction by setting forth the
facts in controversy))preferably in the removal petition, but
sometimes by affidavit))that support a finding of the requisite
amount. See Garza v. Bettcher Indus. Inc., 752 F. Supp. 753, 763
(E.D. Mich. 1990).
Removal, however, cannot be based simply upon conclusory
16
allegations. Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir.
1992). Finally, under any manner of proof, the jurisdictional
facts that support removal must be judged at the time of the
removal, and any post-petition affidavits are allowable only if
relevant to that period of time. ANPAC, 988 F.2d at 565.
Here, plaintiffs dispute whether the district court applied
the proper burden of proof necessary to determine the "jurisdic-
tional facts" for removal. This argument is made in two parts.
First, the plaintiffs spill much ink dissecting caselaw in order to
argue that this circuit does not have an established standard.
This argument is meritless, as de Aguilar I established that a
party seeking removal of a claim that does not allege a specific
amount need only prove the jurisdictional facts by a preponderance
of the evidence.
In the alternative, the plaintiffs argue that the district
court erred in applying de Aguilar I by requiring less than
"preponderance" proof. To support this argument, the plaintiffs
read the district court's order denying their motion for remand to
apply implicitly a "possibility of liability" standard. They also
cite language from the defendants' opposition to the remand that
they believe is conclusionary.
The district court did not state explicitly what standard it
was applying, but only stated that "the magistrate judge's implicit
conclusion that aggregated punitive damages could well exceed
$50,000 can certainly not be characterized as 'clearly erroneous'
or 'contrary to law.'" (emphasis added). A "could well" standard
17
sounds more like a "possibility" standard of proof, rather than a
"more likely or not" standard. As such, the district court's
conclusion and, hence, its order are based upon an erroneous view
of the law.
We need not remand the case, however. The application of our
proper standard of review))an issue that we have never directly
addressed))allows us to affirm. The procedural posture of this
case is similar to a FED. R. CIV. P. 12(b)(6) motion or summary
judgment motion. We apply a like standard of review: de novo,
applying the same standard of review as should the district court.15
In this case, where the district court is making the "facially
apparent" determination, the proper procedure is to look only at
the face of the complaint and ask whether the amount in controversy
was likely to exceed $50,000. In situations where the facially
apparent test is not met, the district court can then require
parties to submit summary-judgment-type evidence, relevant to the
amount in controversy at the time of removal.16 We would review
that determination in a fashion similar to our FED R. CIV. P. 56
review.
15
We note that the district court here did not make any explicit
factual findings, because the review it was engaged in focused solely upon the
face of the complaint. Accordingly, FED. R. CIV. P. 52(a) does not apply, and we
are not limited in our review of the record. See Icicle Seafoods, Inc. v.
Worthington, 475 U.S. 709, 714 (1986) (holding that appellate court fact-
finding is not allowed even for determination of de novo question of law;
proper procedure is to remand for correct fact-finding).
16
The efficient procedure is to not require such "summary judgement"
proof until after the initial consideration of the face of the complaint.
This bifurcation of the process is justified under the general mandate of the
rules, FED. R. CIV. P. 1, and the fact that such proof is irrelevant and wasteful
if jurisdiction is facially apparent.
18
In this case, the total claim for punitive damages is more
likely than not to be for $50,000 or more, as it involves three
companies, 512 plaintiffs, and a wide variety of harm allegedly
caused by wanton and reckless conduct. A court, in applying only
common sense, would find that if the plaintiffs were successful in
their punitive damages claim, they would collect more than $50,000.
Accordingly, we hold that the face of the complaint supports the
assertion of federal jurisdiction.
B.
The plaintiffs also sought to amend their complaint in order
to "clarify" the amount in controversy. This argument lacks merit
in light of de Aguilar I, 11 F.3d at 57 (holding that amount in
controversy may be determined from face of the complaint), and St.
Paul Mercury, 303 U.S. at 292 (holding that post-removal events
cannot deprive a court of jurisdiction once it has attached). Once
the district court found that it had jurisdiction, the jurisdiction
is deemed to have vested in the court at the time of removal. An
amendment to the complaint limiting damages for jurisdictional
purposes cannot divest jurisdiction.
IV.
In conclusion, we hold that in Mississippi, a joint claim for
punitive damages by multiple plaintiffs should be assessed against
each plaintiff as a whole in determining the jurisdictional amount.
Here, a claim for punitive damages against three oil companies for
19
wanton and reckless conduct that caused an oil well explosion, the
evacuation of a town, and harm to 512 people is, on its face, more
likely than not for more than $50,000. And, no post-petition
amendment of the complaint can divest the district court of
jurisdiction. We therefore AFFIRM.
20
DeMOSS, Circuit Judge, dissenting:
There is much in the majority opinion with which I agree, but
there is more with which I disagree, particularly the ultimate
conclusions of the majority regarding removability. I write
therefore to register my dissent.
I agree with the majority that the beginning point in
determining the propriety of removal of a case from state court to
federal court is to look at the "face of the complaint" in state
court and apply the "facially apparent" test. Looking at the
amended complaint last filed in state court before the notice of
removal, I conclude that the complaint was on its face not
removable for the following reasons:
a. All of the defendants in this case are corporations.
Under 28 U.S.C. § 1332(c)(1) "a corporation shall be deemed to
be a citizen of any state by which it has been incorporated
and of the state where it has its principal place of busi-
ness". The allegations of the amended complaint state that
each corporate entity is a "Louisiana corporation", but there
is otherwise no allegation as to the state "by which it has
been incorporated". Furthermore, one of the defendants,
Farrar Oilfield Service and Equipment Co., Inc., is expressly
alleged in the amended complaint to have a "principal place of
business in the State of Mississippi". That allegation makes
this corporate defendant a citizen of the State of Missis-
sippi, which breaks the complete diversity between all
plaintiffs and all defendants required under 28 U.S.C. § 1332
21
and violates the requirement of 28 U.S.C. § 1441(b) that none
of the defendants be a citizen of the state in which such
action is brought.
b. The amended complaint shows that it was filed on May
20, 1993, and contains express allegations that the well
blowout and fire which was the source of plaintiffs' damage
claims occurred on the afternoon of May 29, 1990. The
plaintiffs' conclusory allegations of injury and damage on the
face of the complaint must be evaluated through the common
sense filter of the lapse of almost three years of time
between the occurrence of the casualty and the filing of the
complaint.
c. The amended complaint does not contain any express
allegation as to the monetary amount of any damages, either
actual or punitive.
d. Exhibit A to the amended complaint sets forth the
names of all the various plaintiffs, consisting of approxi-
mately 143 family groups of adults and minor children who are
appearing through their mothers and next friends. All of
these plaintiffs are alleged to be citizens of the State of
Mississippi. Other than the grouping of these plaintiffs in
family groups by last name, there are no allegations in the
amended complaint that there is any family relationship
between and among all of the plaintiffs. There are no
allegations establishing any criteria for a class action by
all the plaintiffs. There is no allegation that all of the
22
plaintiffs are joint owners of any property nor that any group
of the plaintiffs are joint owners of any property. There is
no allegation that all of the plaintiffs are partners in any
business activity nor that any group of the plaintiffs are
partners in any business activity. There is no allegation
that any of the plaintiffs are shareholders of any corporate
entity which was the owner of any damaged property. And,
there is no allegation that any of the plaintiffs joined as
plaintiffs in this lawsuit pursuant to an agreement to share
recoveries to which they might individually be entitled with
any other plaintiffs.
On its face, therefore, the original complaint was not removable
because it did not demonstrate complete diversity between plain-
tiffs and defendants and it did not allege that there was at least
$50,000 in controversy in the lawsuit.
I agree with the language of the majority opinion which
indicates (i) that it is well settled "that the removing party
bears the burden of establishing the facts necessary to show that
federal jurisdiction exists," Gaitor v. Peninsular & Occidental
S.S. Co., 287 F.2d 252, 253-54 (5th Cir. 1961); (ii) that when the
original state court complaint does not specify the dollar amount
in controversy, "the removing defendant must prove by a preponder-
ance of the evidence that the amount in controversy exceeds
$50,000"; De Aguilar v. Boeing Co. (De Aguilar I), 11 F.3d 55, 58
(5th Cir. 1993); and (iii) that multiple plaintiffs are not
permitted to add together "separate and distinct demands, united
23
for convenience and economy in a single suit" to meet the requisite
jurisdictional amount, Snyder v. Harris, 394 U.S. 332, 336 (1969).
I turn now to an analysis of whether the removing defendants
satisfied their burden of proving the jurisdictional facts.
The notice of removal in this case was filed by one of the
defendants, Tri-State Oil Services, Inc. In its removal petition
Tri-State made the following allegations:
a. That the case was removable because of complete
diversity between plaintiffs and defendants and because there
was at least $50,000 in controversy;
b. That each of the three corporate defendants "was a
corporation organized under the laws of the State of Louisi-
ana, but had ceased to engage in any business activity" at the
time of filing suit;
c. That "upon information and belief Farrar [one of the
defendants] has not been served with a summons and copy of the
complaint"; and
d. That "R & H [another defendant] is currently
unrepresented by counsel but joins in this notice of removal".
The notice of removal was signed in behalf of Tri-State Oilfield
Service, Inc. by its counsel of record, but contains no signature
blank in behalf of defendant R & H. Likewise, the truth of the
facts alleged in the notice of removal are not attested by any
affidavit. The notice of removal did contain a statement that
defendants "reserve the right to file additional support for this
notice of removal by way of affidavits, memorandum and argument",
24
but, the record does not contain any further affidavits dealing
with jurisdictional facts. The plaintiffs timely filed a motion to
remand to the state court asserting that there was no showing that
the amount in controversy exceeded $50,000. At this point, it
seems to me, that there should have been some tender of evidence
upon which the district court could have resolved the disputed
jurisdictional facts. Both plaintiffs and defendants submitted
memoranda of authorities in support of their respective positions,
but I can find nothing in the way of a transcript of oral testi-
mony, nor are there any affidavits or other summary judgment type
evidence in the record to resolve the disputed jurisdictional
facts. In my view the following jurisdictional facts are unre-
solved:
a. What happened to the defendant Farrar? Was Farrar
ultimately served in the state court proceeding? If so, its
joinder would be required in the notice of removal.
b. What does the allegation in the notice of removal
that all defendants have "ceased to engage in any business
activity" mean? Have these corporate entities been dissolved?
If so, who are the parties to whom assets and liabilities were
passed on dissolution and what is the residence of such
successors? If they have not been dissolved, where is the
principal place of business of each corporation? Proof of
these facts regarding corporate status and activity requires
at the very least an affidavit of a corporate officer. The
general allegations of counsel in the notice of removal are
25
not sufficient.
c. What is the nature and extent of the property damage
and personal injury sustained by each of the plaintiffs?
d. As between the three defendants, which entity had
the operational control and decision-making responsibility of
the well site, which would put that entity under a duty to
conduct its operations with due regard for the safety of
others and render it liable for a gross negligence and
reckless disregard finding? If that entity was Farrar and
Farrar has never been served, then Farrar was not before the
district court and no punitive damages could be awarded.
All of these jurisdictional facts have been left essentially
unresolved. While there was some sort of a "hearing" before the
magistrate judge at which the parties were permitted to argue their
positions, no transcript was made of that hearing and no party
makes reference to any testimony tendered at that hearing. The
magistrate judge made no specific findings of fact nor conclusions
of law, but simply entered an "Order Overruling Motion to Remand"
which stated:
The court having heard and considered the plaintiffs'
motion to remand, briefs and arguments of counsel and
authorities cited finds that each individual plaintiff
maintains a cause of action for punitive damages and that
under the circumstances and authorities the motion to
remand is not well taken and should be denied. (Citing
cases.)
The cases cited in the magistrate judge's memorandum were two
federal district court decisions (one published, one not published)
from the Southern District of Mississippi dealing with jurisdic-
26
tional amounts in declaratory judgment actions by an insurance
carrier against its insured where there is the potential of a
punitive damage claim based on bad faith by the carrier in dealing
with the claim. Allstate Ins. Co. v. Hilbun, 629 F. Supp. 698
(S.D. Miss. 1988), and Atlanta Cas. Co. v. Jones, No. J90-
0459(L) (S.D. Miss. Feb. 11, 1991). The third case cited by the
magistrate judge, Lailhengue v. Mobil Oil Corp., 775 F. Supp. 908
(E.D. La. 1991), has some factual similarities to the present case
(claims for damages from refinery explosion to nearby residents),
but relates to a casualty which occurred in Louisiana and would be
governed by Louisiana punitive damages law.
The plaintiffs applied for review of the magistrate judge's
ruling by the district judge. In deciding not to review the
magistrate judge's order, the district court based its decision on
the following conclusions of law:
a. "That in this case, aggregation of punitive damages
is proper in determining the issue of whether the amount in
controversy requirement for jurisdiction has been satisfied";
b. "While their claims for compensatory damages are
separate and divisible, the court, giving due consideration to
the nature and purpose of punitive damages, concludes that the
same cannot be said as to plaintiffs' punitive damages claim.
Punitive damages are sought for a single wrong to the plain-
tiffs who thus have a common and undivided interest in
punitive damages award"; and
c. That the "magistrate judge's implicit conclusion
27
that aggregated punitive damages could well exceed $50,000 can
certainly not be characterized as ``clearly erroneous' or
``contrary to law'." (Emphasis added.)
The district court offered no statutory or common law support for
any of these conclusions.
During the pendency of this lawsuit, the Mississippi Legisla-
ture adopted a statutory provision dealing with punitive damages,
MISS. CODE ANN. § 11-1-65 (Supp. 1994). The relevant provisions of
that statute were made expressly applicable to this and all other
cases pending as of July 1, 1993. Nonetheless, neither the
magistrate judge's order nor the district court's order evaluates
the impact of the Mississippi statute on jurisdiction in this case.
The majority opinion makes only a passing reference to this statute
stating that it "codified" Mississippi law regarding punitive
damages. The majority, however, gives no substantive consideration
to the terms and provisions of this statute in arriving at its
conclusions that Mississippi regards punitive damages as an
"individual award in function only," and that, without regard to
any showing of compensatory damage, punitives can be relied upon to
satisfy the jurisdictional amount in this case. Because I believe
that Erie requires federal courts to give controlling effect to
state law in cases where our jurisdiction could be based solely on
diversity of citizenship, and because I believe the Mississippi
punitive damage statute cannot possibly be interpreted to support
the conclusion reached by the majority in this case, I turn to a
28
detailed examination of that statute.17
Section 11-1-65 actually changes Mississippi law in at least
two important ways. First and most importantly, the statute
requires proof by "clear and convincing evidence" of the conduct
which is made the subject of punitive damages. While this
heightened proof requirement may not be determinative by itself of
the availability of punitive damages in this case, it clearly
indicates that the recovery of punitive damages will be tested by
proof over and above the previously applicable preponderance of the
evidence test. Second, the Mississippi statute on punitive damages
contemplates a bifurcated process for dealing with actual or
compensatory damages, on the one hand, and punitive damages, on the
other. Note that the statute expressly requires that the trier of
fact "shall first determine whether compensatory damages are to be
awarded and in what amount, before addressing any issues related to
punitive damages". § 11-1-65(1)(b) (emphasis added). It further
states that "if but only if" compensatory damages have been
awarded, the court shall commence an evidentiary hearing to
determine whether punitive damages may be considered. If the court
then determines that punitive damages may be submitted to the trier
of fact, then the trier of fact determines "whether to award
punitive damages and in what amount". § 11-1-65(1)(d). In
addition, the Mississippi statute expressly defines factors which
the trier of fact may consider in determining whether to award
17
See generally John F. Corlew, An Historical Overview of
Punitive Damages in Mississippi, 63 Miss. L.J. 583 (1994).
29
punitive damages and the amounts thereof, which include the nature
and extent of damages sustained by the claimant, as well as the
financial condition of the party against whom punitive damages are
sought. Finally the Mississippi statute on punitive damages calls
for a review by the court to determine the reasonableness of the
punitive damages and requires the court to consider "mitigation" of
punitive damages by considering civil penalties levied against the
defendant for the same conduct in other actions.18
It is important also to note what the Mississippi statute on
punitive damages does not say. Nowhere in the statute is there
anything that says that there shall be only one single claim for
punitive damages arising out of any one set of circumstances.19
There is nothing in the statute that says that if more than one
person sustains compensatory damages from a casualty, all of such
persons shall have a joint or common claim against the party guilty
18
While these last two statutory provisions, specifying
factors to be considered in computing punitive damages, may not
be applicable to this case, they are indeed codifications of
binding Mississippi precedent. See, e.g., C & C Trucking Co. v.
Smith, 612 So. 2d 1092 (Miss. 1992).
19
Interestingly, the original house bill, which ultimately
became § 11-1-65 contained the following provision in Section
3(d)(iii):
(iii) Only one (1) award for punitive damages may
be made against a defendant for the same act, decision,
omission or course of conduct.
(H.B. No. 1270, Regular Session, 1993). But this subpart (iii)
was deleted by the Judiciary Committee and does not appear in the
final bill as passed. To my mind, this is conclusive that the
Legislature intended that there be multiple claims for punitive
damages, such as those allegedly arising out of the well explo-
sion in this case.
30
of punitive damage conduct. Nowhere in the statute is there any
language that says that a punitive damage award would be shared on
a per capita basis nor on a pro rated damage basis between several
parties who each sustain compensatory damage out of a single
casualty. To the contrary, the overall thrust of the Mississippi
statute on punitive damages is that each claimant, who proves that
he suffered compensatory damages and who proves by "clear and
convincing" evidence that a defendant has committed conduct
authorizing the recovery of punitive damages, is entitled to a
submission to the jury of a punitive damage claim; and subject to
the court's review of the reasonableness of the jury's finding,
that individual is entitled to the recovery of those punitive
damages. Furthermore, nowhere does the statute use the words
"joint", "common", "collective", which are the key words relied
upon by the district court and the panel majority to justify
aggregation of all punitive damage claims by all plaintiffs.
Likewise, there is no Mississippi Supreme Court case involving
facts similar to the mass tort situation involved in this case
where the Mississippi Supreme Court has concluded that there is
some jointness, collectiveness or commonality to the claims of the
multiple plaintiffs in such actions. Accordingly, from my review
of the Mississippi cases and statute on punitive damages, I come to
the following conclusions:
a. Under Mississippi law, punitive damages are depend-
ent upon and appurtenant to the existence of a recovery of
31
compensatory damages;20
b. Absent an express holding of the Mississippi Supreme
Court that punitive damage claims of multiple plaintiffs are
to be determined on a joint or common basis, the plain reading
of the Mississippi punitive damage statute contemplates that
the punitive damage claim of each claimant will be separate
and distinct, just as the compensatory damage claims of that
claimant are separate and distinct;
c. Given the bifurcated procedure for first determining
compensatory damages and then determining punitive damages,
which is mandated by the Mississippi punitive damage statute,
each plaintiff in a multi-plaintiff case who was found to have
suffered compensatory damage would be entitled to a separate
submission of his claim for punitive damages, rather than a
blanket submission of a single issue of punitive damages as to
all such plaintiffs; because otherwise, the jury would be
deprived of the opportunity to evaluate the differences in
character and amounts of compensatory damage which would
almost certainly exist between the multiple plaintiffs and
which the Mississippi punitive damage statute requires to be
considered as an element of fixing each claim of punitive
20
This same conclusion was reached by another panel of
this court in the case of Greer v. Burkhardt, Inc., No. 94-60306
(5th Cir. July 20, 1995), 58 F.3d 1070 (5th Cir. 1995), where on
facts and legal proceedings which reached final judgment prior to
the adoption of the Mississippi punitive damages statute, the
panel reviewed several Mississippi Supreme Court cases and
concluded that "in a case of zero actual damages, we believe that
Mississippi law does not allow him any punitive damages."
32
damages. On the other hand, the blanket submission of a
single issue as to all punitive damages, as inferred by the
majority, would result in a lump sum award of a single amount
of punitive damages but with no basis in the statute nor in
Mississippi common law as to the formula by which such lump
sum award would be divided amongst the various multiple
plaintiffs. Some may say that the best policy is to divide a
lump sum punitive damage award on a per capita basis and
others may say that the best way to divide a lump sum punitive
damage award is in the proportion of the amount of each
individual claimant's compensatory damages to the total of all
compensatory damages. But, in any event, the choice is a
legislative choice which the Mississippi Legislature did not
make in the Mississippi punitive damage statute; and it is a
choice which the courts need never reach if they read the
Mississippi statute as requiring separate jury findings as to
the punitive damages of each individual plaintiff in a multi-
plaintiff suit, as it seems to so plainly say.
This is not a class action. Each of the plaintiffs have
joined in the original complaint in each of their respective names
to assert what the majority clearly recognizes are their respective
"separate and distinguishable" claims for compensatory damages.
Had there been no allegations regarding punitive damages, Snyder v.
Harris would clearly be the controlling law and removal from state
court to federal court would be valid only as to each plaintiff
whose compensatory damages were determined to likely exceed
33
$50,000. The face of the original complaint in state court
certainly does not expressly quantify these compensatory damages of
each plaintiff and the burden therefore fell upon the removing
defendants to demonstrate by a preponderance of the evidence the
nature and extent of each plaintiff's injuries and the likely
amount of compensatory damages for such injuries. The defendants
wholly failed to satisfy this burden. Rather, the defendants
focused the attention of the magistrate judge and the district
judge on the general allegations regarding punitive damages. Here
again, the face of the original complaint contained no express
allegation as to the amount of punitive damages which each
plaintiff was claiming; and, therefore, the burden fell upon the
removing defendants again to establish by a preponderance of the
evidence that the quantum of punitive damages which each plaintiff
could reasonably expect to receive would produce an amount in
controversy exceeding $50,000 when added to the compensatory damage
of each respective plaintiff. This burden the defendants wholly
failed to satisfy. Rather, the removing defendants argued and the
district court concluded that punitive damages are not "separate
and divisible" as to each plaintiff, but rather constitutes some
sort of a single claim for a "single wrong" in which all plaintiffs
have "a common and undivided interest". Additionally, the district
court concluded that the "implicit conclusion" of the magistrate
judge "that aggregated punitive damages could well exceed $50,000"
was not "clearly erroneous". All of these determinations were made
by the district court "based simply upon conclusory allegations" in
34
the original complaint or the notice of removal which the panel
majority recognizes was not proper. But brushing aside the trial
court's errors and applying "common sense" to the task of inter-
preting "the face of the complaint", the panel majority concludes:
(1) "the total claim [singular] for punitive damages [plural] is
more likely than not to be for $50,000 or more" and (2) "if the
plaintiffs [plural] were successful in their [plural] punitive
damages [plural] claim [singular], they [plural] would collect more
than $50,000". In my opinion, those conclusions by the majority
are in direct conflict with Mississippi statutory and case law in
that they purport to make all plaintiffs participate in one single
punitive damage claim; and through the semantical device of
labeling a punitive damage claim a collective claim for jurisdic-
tional amount purposes, the panel majority avoids the clear mandate
of the United States Supreme Court that in suits involving multiple
plaintiffs, the jurisdictional amount is to be determined as to
each plaintiff, without aggregating claims among the plaintiffs.
I respectfully dissent.
35