Aggregation of class action claims to meet 28 U.S.C. 1332's amount-in-controversy requirement

by John Pillette
Assistant Editor, Class Action Reports*
© 2001 Class Action Reports. All Rights Reserved.

I. Introduction

Do federal judges really hate class action plaintiffs? Common wisdom holds that the period 1981-2001 has been one of ideological realignment. State and federal court have exchanged position, and it is now the federal courts that are "defendant-friendly." In the polite language of published legal scholarship, federal courts are said to be more "rigorous" or "thorough" or "strict" than their state counterparts-only as a result, you understand, of the impersonal workings of Fed. R. Civ. P. 23. The language used in the CLE lecture hall tends to be more forthright: as a class action defendant, you are told to "get yourself in front of a friendly (i.e., federal) judge."1/ But can we really say that federal judges are defendant-friendly? This article will sidestep (or leave to the legal positivists) the question of scientifically proving bias, and-while noting the obvious fact that there exist federal judges who have "pro-plaintiff" reputations-simply assume that the pro-defendant judge stereotype has at least some basis in reality. Defendants want to get into federal court, plaintiffs want to stay out, and it makes sense to hypothesize a reason for this.2/

Accordingly, some plaintiffs are now choosing to forego federal jurisdiction entirely and instead bring their non-federal question class actions in state court. In response, defendants have focused more of their pre-certification litigation efforts on removing these state court cases to "friendly" federal fora.3/ (The press of litigation aside, corporate interests have proposed that federal jurisdiction be made available for essentially any state court class action. Those supporting the Class Action Fairness Act have criticized the current bright-line diversity of citizenship rule as fostering abusive litigation, and the proposed legislation would relax the current citizenship doctrine, giving a state court class action defendant the option to remove to federal court.)4/

Until class action jurisdiction is "reformed," however, defendants wishing to remove to federal court will have to contend with the central removal hurdle-meeting the $75,000 amount-in-controversy requirement. But the hurdle itself now seems to be bobbing up and down. To an amazing degree, class action defendants have succeeded in altering the seemingly lapidary doctrine of diversity jurisdiction. To phrase it in the CLE seminar vernacular: certain federal judges are really friendly and on the issue of removal will let you into court through the back door.

This article examines satisfaction of the amount-in-controversy requirement through the aggregation of attorneys' fees, punitive damages, and/or equitable relief. Previously a relatively straightforward issue, this is now-thanks to recent decisions in the Fifth, Sixth, Eleventh, and District of Columbia Circuits-rife with confusion. This article maintains that the claims of individual class members are not aggregable and that the newer cases allowing such aggregation conflict with controlling Supreme Court precedent and in fact a number of these decisions have been rescinded recently. Once these anomalous cases are distinguished, the issue of aggregation appears less confusing-or at least appears no more confusing than ever it was.

As a related issue, defendants have had some success in removing cases not with aggregation but rather the Judicial Improvements Act of 1990, 28 U.S.C. ? 1367, arguing that the Act eliminated the requirement-established by Zahn v. International Paper Co., 414 U.S. 291 (1973)-that every single plaintiff in a diversity class action satisfy the amount in controversy. The circuits are split on the issue, with the Fifth and Seventh ruling that the Act has (and the Third, Eighth, and Tenth that it has not) abrogated Zahn.5/

II. Federal Diversity Jurisdiction

The federal diversity statute provides that "the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest or costs, and is between citizens of different states."6/

A. Amount in Controversy

Crosby v. America Online, Inc.,7/ involved a typical amount in controversy dispute. Therein the plaintiffs asserted that "the amount in controversy must exceed $75,000 for each of the 270,000 plaintiffs in the putative class," while the defendant responded "by noting that the Plaintiffs have demanded attorney's fees and punitive damages ÷ [and] that any award of ÷ [such] should be 'aggregated,' so that a total award in this case-including compensatory damages, attorneys' fees and/or punitive damages-exceeding $75,000 would suffice to meet the amount in controversy requirement of 28 U.S.C. ?1332."8/

Thus, Crosby illustrates the simple dispute at the center of the amount in controversy debate: which arithmetic formula is the correct one? In a non-federal question class action such as Crosby a court is confronted with several different figures-a, the individual class member's pro rata share of the compensatory damage award; b, the single class member's pro rata share of the punitive damage award; c, the single class member's pro rata share of the attorney fee award, and combinations thereof. The Crosby plaintiffs asserted that the amount in controversy was a + b + c, while defendants maintained that the proper figure was a + (b x 270,000) + (c x 270,000).9/ Since in a Rule 23 (b)(3) damages action a + b + c will not come close to the $75,000 threshold amount, this arithmetic will effectively control the availability of federal jurisdiction.

B. Non-Aggregation Rule

The amount in controversy in a multiple-plaintiff10/ action is controlled by the non-aggregation rule, which distinguishes between two types of multiple plaintiff actions: "When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests together collectively equal the jurisdictional amount." Troy Bank of Troy, Indiana v. G.A. Whitehead & Co.11/ Class action removal disputes, then, turn on the issue of the nature of the class-wide claims-are they separate and distinct or common and undivided?

As noted, a class action plaintiff in a Rule 23 (b)(3) action will not have an individual claim worth more than $75,000, and it is clear that the compensatory damage claims in a typical consumer class action are separate and distinct, i.e., each individual class member has the right to bring his or her own action.12/ In fact, a right to bring suit individually is a prerequisite for membership in the class.13/ Of course this "right" will, in a rule 23(b)(3) action, be a purely formal one, since the costs of asserting such a right would be prohibitively expensive; hence the class action device, as a method of enforcing what would otherwise be dormant claims.14/ By definition, the class action device is procedural-it is used solely for purposes of convenience and economy and does not work any change in the rights themselves. As a bit of procedure, Rule 23 cannot combine purported class action claims so fundamentally as to require that they be litigated en masse,15/ and the availability of an "opt-out" is illustrative of the individual nature of the claims; Rule 23(b)(3) binds the individual claims together only procedurally.

In contrast, the paradigmatic examples of a common and undivided interest are insurance policies, estates, or pieces of real property. That is, the common and undivided interest is an interest in a single res.16/ Unlike a typical 23(b)(3) class action, litigation over an estate in which several plaintiffs hold a group interest cannot proceed without the presence of all plaintiffs. The difference is that between permissive and compulsory joinder; or, as described by the Court, between "an invitation and a command performance."17/

Troy articulated the non-aggregation rule in the context of joinder. After the enactment of the Federal Rules of Civil Procedure in 1938, the non-aggregation rule was held to apply to Rule 23, and Snyder v. Harris18/ reaffirmed it in the context of the modern (i.e., post-1966) class action. In Snyder, it was argued that the 1966 amendments to Rule 23-which eliminated the old Rule 23 classification system of true, spurious, and hybrid class actions-had removed class actions from the restriction on aggregation imposed by Troy: since the old "true" class action was not subject to the rule against aggregation19/ the new system of classification allowed aggregation in all circumstances. The Court rejected this argument, emphasizing that such an abandoning of the Troy doctrine would work an impermissible enlargement of federal jurisdiction.

The non-aggregation rule, then, distinguishes between two different multi-plaintiff situations. Troy suggests a simple test-could the plaintiffs have brought a number of separate actions rather than litigating as a class? As noted in Snyder, "lower courts have developed largely workable standards for determining when claims are joint and common, and therefore entitled to be aggregated, and when they are separate and distinct and therefore not aggregable".20/ Since the development of these workable standards was accomplished prior to the institution of the class action Rule, why the confusion?

C. Which is Which?

Despite these workable standards, some federal courts have recently experienced difficulty in properly identifying "separate and distinct" from "common and undivided" claims. The confusion may stem from Rule 23 itself-as "a form of permissive joinder", the class action device allows separate claims to be brought together, and the mere bringing together of claims can obscure the underlying justification for bringing them together. "It is linguistically possible, of course, to interpret the old congressional phrase 'matter in controversy' as including all claims that can be joined or brought in a single suit through the class action device."21/ Such was the position argued in Snyder. But as that case holds, such a literal approach has no historical support, and would require not just a revision of the non-aggregation rule in the context of class actions, but as it relates to joinder as well.

Alternatively, the present confusion over what is and what is not a common and undivided claim may stem from the basic amount-in-controversy arithmetic. "Calculation of the amount in controversy in a class action is no simple task, and is determined by ÷ [combining] the plaintiff's compensatory damages along with the plaintiff's pro rata share of attorneys' fees, punitive damages, and the cost of injunctive relief."22/ "Simple task" is of course a relative term. But if the federal courts are (as is routinely asserted) better qualified for this sort of rigorous analysis than state courts,23/ surely even this task cannot be so difficult as to stymie these intellectuals. If class-wide claims for injunctive, declaratory, and/or equitable relief; punitive damages; attorneys' fees; and compensatory damages claims (or variations thereof) are really such a legal knot of Gordian proportions, there are at least long-standing rules by which a court can untangle such a mess. Notably, such a task has not proved impossible in the past.24/

The confusion may instead be the result of certain courts hewing to a political ideology that insists on the availability of federal court jurisdiction for class action defendants-in the face of legal precedent clearly holding otherwise. In any event, a thorough examination of some of these latest "common and undivided interests" shows them to be separate and distinct when evaluated under the workable standards elucidated by Troy and Snyder.

1. Aetna U.S. Healthcare v. Hoechst AG, 48 F. Supp. 2d 37 (D.D.C. 1999) ("Aetna DC")

Aetna DC was one of a number of non-federal question class actions alleging an antitrust conspiracy between the manufacturer of the hypertension drug Cardizem and the would-be manufacturer of its generic equivalent. Specifically, plaintiffs alleged that the defendants artificially inflated the price of Cardizem by collusively keeping the less expensive generic substitute off the market. The measure of plaintiffs' damages was the price differential between the (inflated) price paid for the drug and what the price would have been had the generic drug been available. Plaintiffs worded the claim as one for unjust enrichment and requested that a disgorgement fund be created, from which class members would be reimbursed for the amounts each had been overcharged. Defendants successfully argued that the entire plaintiff class had a common and undivided interest in the disgorgement fund, such that the value of the entire fund constituted the amount in controversy, and were thereby able to establish federal court jurisdiction.

The Aetna DC opinion is seriously flawed. The plaintiffs clearly had alleged injury from an antitrust conspiracy that had inflated the price of Cardizem, as the complaint asserted that "it would be inequitable for [the defendant conspirators] to be permitted to retain any of the plaintiff Class's overpayment for Cardizem CD," thereby stating a "claim for the disgorgement of profits resulting from the overpayments that defendants earned as a result of their allegedly illegal agreement in restraint of trade." Clearly, the damages suffered by plaintiffs were the overpayments; that is, each individual plaintiff had overpaid for the drug, and had been damaged in that amount. The fact that the damages were considered as a collective fund for purposes of litigation did not alter the individual nature of the fund's constituent parts. However, the court missed this crucial point entirely, stating that "plaintiff's complaint claims that, without reference to any actual damages sustained by any individual plaintiff, defendants must disgorge the profits derived from their illegal anticompetitive activities" (emphasis added). But, as acknowledged by the court, the complaint alleged that the plaintiff class had been overcharged. This allegation could only admit of one interpretation-viz., that each plaintiff class member had been overcharged a certain amount-but instead, the court perversely found that what the plaintiffs were asserting was "a claim for disgorgement"25/ in the amount of the global overcharges, i.e., in the amount that all Cardizem customers everywhere had been overcharged, and seemingly failed to consider that such a claim would have no legal basis. Rather, it interpreted the "disgorgement claim" as allowing, if successful, the distribution of global overcharges to a smaller subset of global plaintiffs, and did not pause to consider that the only group of plaintiffs with a right to the entire-global-overcharges would be the entire, global group of all plaintiffs. The court's interpretation of the complaint was a legal impossibility.

The court reasoned that since (in its interpretation at least) the global overcharges were to be distributed to the smaller, sub-global subset of plaintiffs, the size of the fund would not depend on the number of class members. Since the amounts accruing to each plaintiff in the distribution of a kitty or common fund will decrease as the number of plaintiffs increases, and since this is one criterion for a common and undivided claim, the court found that plaintiffs therefore had a common and undivided interest in the disgorgement fund, and the amount in controversy was the entire fund.

The problems with Aetna DC were noted by another court considering identical facts. In Aetna U.S. Healthcare, Inc. v. Hoechst AG ("Aetna Kansas") the Court for the District of Kansas correctly noted that the plaintiffs' collective right to disgorgement was, of necessity, limited to each individual plaintiff's damages. Plaintiffs could not have been requesting the global disgorgement of defendants' conduct, because the plaintiffs' rights to compensation were only as to their own damages. The "disgorgement fund", as requested, was nothing more than a class-wide compensatory damages fund. Since each Cardizem buyer had the ability to bring an identical suit on a separate and distinct claim for recovery of the overcharges, the fund composed of a number of such claims was also necessarily based on separate and distinct claims.26/

Second, the Aetna DC court placed an undue amount of emphasis on the exact wording of the claim,27/ asserting that it had been "led to believe" that the so-called disgorgement claim was what plaintiffs were seeking. In this it seems to have willfully ignored the only possible construction of the complaint-namely, that it asserted separate and distinct claims for unjust enrichment on behalf of a class of Cardizem buyers-and instead substituted its own conception; that of disgorgement as a form of equitable relief in itself. However, the mere formulation of a damages claim as one for injunctive or equitable relief does not change the fact that the asserted rights are separate and distinct, and the use of disgorgement funds to satisfy legal claims has not confused other courts. An identical "disgorgement fund" argument was rejected in Gilman v. BHC Securities,28/ since "disgorge[ment] ÷ [of the payments at issue is] not at all inconsistent with a collective demand by the class members for the disgorgement of ÷ [the payments] received in respect of their individual transactions".29/

2. In re Cardizem CD Antitrust Litigation, 90 F. Supp. 2d 819 (E.D. Mich. 1999)

The Cardizem court blindly followed the Aetna DC court in finding plaintiffs' request for disgorgement of the amounts whereby defendants were allegedly unjustly enriched to assert a common and undivided right. Interestingly, Cardizem managed to crawl even further out on Aetna DC's long thin limb by finding a common and integrated right even though the plaintiffs (presumably chastened by Aetna DC's neo-technical pleading standards) took pains to specify what was apparently left unsaid in Aetna DC-that the entire disgorgement fund was simply each individual plaintiff's disgorgement claim considered collectively; ie., "there is no common, integrated claim because each individual disgorgement claim is tied to the unlawful overcharges paid by each."30/

D. Scope of Injunctive, Declaratory, or Equitable Relief and "Common and Undivided Interests"

When claims for compensatory damages are accompanied by claims for equitable relief, the aggregability inquiry is complicated somewhat. The "viewpoint" rules on valuation of injunctive relief are discussed in more detail at Part II.F, infra. The various viewpoint rules determine from whose perspective the relief is valued. In a class action, implementation of an injunctive relief plan that is worth very little in monetary terms to the individual plaintiffs may cost the defendant a great deal of money; however, since in a class action the "plaintiff's viewpoint is always used, it is what the relief is worth to the individual plaintiff that controls. Therefore, in terms of aggregability, Injunctive (or declaratory or other equitable) relief claims are no different from their underlying compensatory damages. Just as the monetary value of a claim to the individual class members determines the amount in controversy for damage actions, it is the value to the individual class members of any equitable relief that controls, and not the costs of the defendant's compliance therewith: "The test ÷ is the cost to each defendant of an injunction running in favor of one plaintiff; otherwise the non-aggregation rule would be violated."31/

Thus, where class members each possess an individual right to injunctive relief, the mere circumstance of group litigation cannot integrate their claims. As a corollary to this, the scope of class-wide injunctive relief is limited to what an individual plaintiff could request in an individual action, and any relief beyond that must run in favor of the class, as a common and undivided interest.32/ The following three cases illustrate the distinction.

1. Jacobson v. Ford Motor Co., 1999 WL 966432 (N.D. Ill. Sept. 30, 1999)

The plaintiff in Jacobsen alleged on behalf of a class of vehicle owners that the manufacturer's practice of repairing a certain vehicle defect only on a case-by-case basis was a "secret warranty"-a violation of the state consumer law statute. Plaintiffs requested as relief a "declar[ation] that the general practice of providing customers with goodwill service on a case-by-case basis is illegal, not just that defendants illegally refused to provide free ÷ [service] to some purchasers", that defendants "account for all secret warranties and payments", and that the court appoint "an officer to administer and distribute the funds". Such relief was held by the court to constitute a common and undivided interest, since the plaintiff "apparently seeks to have a court declare that the general practice of providing customers with goodwill service on a case-by-case basis is illegal, not just that defendants illegally refused to provide free repaints (or other free service) to some purchasers of 1991 Mercury Sables (or other Ford vehicles)."33/ (Emphasis added).

2. Lhotka v. Ford Motor Co., 98 F. Supp. 2d 984 (N.D. Ill. 2000)

In Lhotka, the plaintiff alleged on behalf of a class of car buyers that the vehicles all had defective head gaskets, in breach of their warranty contracts. The requested relief included "a declaration that the time limitations in Ford's written warranties concerning the head gaskets are unenforceable". The court contrasted this relief with that requested in Jacobsen, making the crucial-if not obvious-distinction is between "undifferentiated equitable relief" (Jacobson) and individualized equitable relief (Lhotka): while Jacobsen had requested "broad relief affecting the class as a whole" in Lhotka, "Ford could grant the relief sought ÷ individually, and the value of such relief would be negligible". The court noted specifically that since the relief was predicated on a breach of each individual plaintiff's purchase contract, "it is difficult, if not impossible, to imagine how the interest to be vindicated could be characterized as a common interest."34/

3. Loizon v. SMH, 950 F. Supp. 250 (N.D. Ill. 1996)

In Loizon, a plaintiff alleged on behalf of a class of wristwatch purchasers that the watches' luminous tritium-isotope dials and hands constituted a health risk, and that the manufacturer's sale of the watches thereby violated the Illinois consumer statute. Plaintiff requested that defendants be required to "account for all sales of th[e] ÷ watches, and 'inform all Plaintiffs' " of the alleged health risks associated therewith. Noting that "only the class, and not individual class members, could request the injunctive relief", the court held that the plaintiff class held a common and undivided interest in it.35/

E. Punitive Damages as Common and Undivided Interests

As discussed supra, the dispositive factor for allowing or disallowing aggregation is the nature of the legal claims themselves, as separate and distinct or common and undivided. Prior to 1995, it was the accepted view that punitive damages, as parasitic claims attached to separate and distinct legal claims, were necessarily separate and distinct themselves. Indeed, the case reaffirming Snyder's non-aggregation principle itself (Zahn) involved claims for punitive damages.

Nevertheless, starting with the Fifth Circuit's 1995 decision in Allen v. R & H Oil & Gas Co.,36/ district courts began to carve out an exception for punitive damages, finding that these claims were common and undivided interests, because of their very "nature". In this, these courts ignored both Snyder and binding precedent. Since under Snyder the relevant question with respect to punitive damages must be: "could a plaintiff have brought a separate action including a punitive damages claim?", the digressions into the nature of punitive damages under state law indulged in by Allen and its progeny are simply irrelevant.

Recent decisions have eliminated the punitive damages exception, recognizing that Fifth and Eleventh Circuit decisions applying the Allen reasoning conflicted with the Fifth Circuit's earlier controlling decision in Lindsey v. Alabama Telephone Co.37/

1. Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995) and H&D Tire and Automotive-Hardware, Inc. v. Pitney-Bowes, Inc., 227 F.3d 326 (5th Cir. 2000)38/

Allen held that because Mississippi punitive damages are "fundamentally collective"39/ they did not fall under the non-aggregation rule. The court did not discuss Lindsey. In denying a petition for rehearing, the court did take pains to specify that it was not reciting a general principle as to the aggregability of punitive damages: "The opinion in this case specifically reflects a result under the Mississippi law of punitive damages and is not to be construed as a comment on any similar case that might arise under the law of any other state"40/-but the reasoning as to the collective nature of punitive damages (that "punitive damages punish") was of course of universal application.41/ Ard v. Transcontinental Gas Pipe Line Corp.,42/ further emphasized that Allen carved out an exception for Mississippi punitive damages only, and so was able to reconcile Allen with Lindsey. Ard disallowed aggregation of punitive damages requested under Louisiana law.

H&D squarely addressed the Allen-Lindsey conflict, holding that "[w]hen panel opinions appear to conflict, we are bound to follow the earlier opinion ÷. Because Lindsey is the earliest, and thus controlling, decision in this circuit, the punitive damages claims of the putative class cannot be aggregated and attributed to each plaintiff to meet the jurisdictional requirement." Significantly, the H&D court did not distinguish between punitive damages sought under Mississippi law and those sought under the laws of other states (H&D itself involved Connecticut law). Therefore, it would appear that the issue is now settled: punitive damages are not aggregable in the Fifth Circuit.

2. Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996), abrogated by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000)

Tapscott applied the Allen rationale-that the underlying purpose of the state law of punitive damages controlled the issue of aggregation-to a claim for punitive damages under Alabama law. Reasoning that "[a]n injured party is not entitled to punitive damages as a matter of right ÷ [but] [r]ather, the state and not the victim is considered the true party plaintiff because punitive damages do not compensate a victim for loss but serve to punish and deter", the Tapscott court found that Alabama punitive damages are aggregable.43/ Lindsey was not discussed.44/ Tapscott itself, in holding that "where punitive damages reflect the defendant's course of conduct towards all of the putative class members, it is entirely appropriate that the damages be considered in the aggregate"45/ demonstrates the incompatibility of this rationale with Snyder-since insofar as a common course of conduct toward all class members is a prerequisite to the maintenance of the lawsuit as a class action, this reasoning would allow aggregation in any circumstance.

Tapscott was thereafter abrogated by Cohen v. Office Depot, Inc.,46/ the court noting somewhat sourly that "Office Depot has belatedly pointed out the tension between the Tapscott decision ÷ and the decision in Lindsey ÷ [and since] where there is an intracircuit conflict of authority, 'the earliest panel decision resolving the issue in question binds this circuit until the court resolves the issue an banc' ÷ we must follow Lindsey".47/

3. Knauer v. Ohio State Life Insurance Co., 102 F. Supp. 2d 443 (N.D. Ohio 2000)

Knauer allowed aggregation of punitive damages on slightly different grounds than the Allen-Tapscott line of reasoning. Knauer involved claims asserted on behalf of a class of insureds, alleging fraud and misrepresentation by the insurer. Since each class member was suing on his or her own contract, there could be no question as to the separate and distinct nature of the claims forming the basis of the action. Nevertheless, the court held that the suit's potential punitive damages claims constituted a common and undivided interest.

Noting that punitive damages had been held to be "fundamentally collective" in Allen (but failing to mention that this determination was limited to Mississippi law), and that Tapscott was in accord (but failing to notice that that case had been rescinded by Cohen four months earlier), the Knauer court first determined that there was "no hard and fast rule" regarding the aggregation of punitive damages. In so holding, the court cited only one case for the (almost universally accepted) rule of non-aggregation, and discussed neither the controlling case of Lindsey, nor its own earlier analysis of the problem in Crosby v. America Online, Inc.48/ Crosby had affirmed that punitive damages were not aggregable, stating: "[p]laintiffs have distinct interests in their claims because ÷ they sue under their individual contracts ÷ [such that] allowing AOL to aggregate compensatory damages, attorney's fees or punitive damages would allow them to circumvent" the non aggregation rule.49/

Despite Crosby, in Knauer the court determined that issue of aggregability would be decided on a case-by-case basis. Since, in its interpretation, the somewhat ambiguous wording of the complaint prayed for "a collective claim", the court found that the claim for punitive damages as pleaded was for an aggregable common and undivided interest. Aside from its extremely weak factual underpinnings-i.e., the collective nature of the complaint was premised only on the fact that the punitive damage award was requested to run to "plaintiffs and the class,"-the obvious problem with this argument is the notion that the wording of the complaint could change the nature of the underlying rights. Even if the plaintiffs had specifically characterized the punitive damages award as "common and undivided", it is impossible to see how this action on the part of one of the parties could control the issue. Finally, the court conclusorily determined that if punitive damages were awarded, "if one plaintiff cannot or does not collect his share, the shares of the remaining plaintiffs will be increased", even though each class member was seeking a fixed sum.50/

The problem is the opinion's obvious inconsistency: each Knauer plaintiff could have brought his or her own action, asserting fraud and making a parasitic request for punitive damages, and in this circumstance each plaintiff would have had a separate and distinct claim. According to the court's rationale, however, by uniting in a class action, the class' punitive damages claims were made common and undivided, even while the individual class members' underlying claims remained separate. As noted by the same court three years earlier in Crosby, such a position cannot be reconciled with Troy: "when based upon such separate claims, attorneys' fees should not be aggregated ÷ [and] [t]he rule is the same for punitive damages."51/

F. Attorneys' Fees as Common and Undivided Interests: In re Abbott Labs., 51 F.3d 524 (5th Cir. 1995)52/

Punitive damages is not the only area of the law where a Fifth Circuit decision has sown confusion-with Abbott, however, the blame lies with removing parties, not with the court itself. Abbott was removed to federal court after it was determined that the peculiar interplay between two state statutes allowed attorneys' fees to be aggregated. It was this contingency and not any sort of "collective nature" aspect that resulted in aggregation.

The first statute in Abbott provided an independent right to attorneys' fees53/ while the Code of Civil procedure54/ meant that those fees were ascribed to the named plaintiffs alone.55/ They could not, therefore be prorated across the class. Absent these two predicates, however, attorneys' fees are not aggregable: "Abbott does not apply to class actions brought pursuant to La. C. Civ. Pro. Art. 595 when another statute ÷ does not mandate an award of attorneys' fees over and above an award of compensatory damages."56/ Once jurisdiction as to the Abbot named plaintiffs was established, the court then exercised supplementary jurisdiction over the entire class-this made possible by the court's affirmative answer to the other big question in the case: "does 28 U.S.C. ? 1367 allow supplementary jurisdiction over the absent class members?". See III, infra.

Predictably, the Fifth Circuit's explicit limitation has been widely ignored by overeager parties. Instead, Abbott has been cited for the proposition that attorneys' fees are generally aggregable. Spielman v. Genzyme Corp.57/ is a typical example of this effort (and its outcome). Despite the opportunity to do so, the court declined to read Abbott as changing the law of aggregation: "Unlike the Louisiana statute examined in Abbott Laboratories, the statutory language ÷ [here] does not controvert the general proposition that attorneys' fees are to be prorated across the putative class ÷."58/ The Abbott situation of aggregable attorneys' fees remains an unusual one and (as of yet) has not been misinterpreted as a call for a new general rule of aggregability.

G. Viewpoint and Aggregation:

Measuring the value of injunctive or declaratory relief for amount in controversy purposes presents a difficulty not present where only claims for money damages are asserted. Whereas "[i]n a suit for damages, the question of whether the amount in controversy exceeds the jurisdictional minimum usually involves a straightforward analysis because the amount the plaintiff stands to gain is the same as the amount the defendant stands to lose," when the relief requested is injunctive or declaratory "the question becomes more complicated and the answer 'may well turn on an initial decision concerning the viewpoint from which the amount in controversy is measured. For example, in an action seeking injunctive relief, a plaintiff may not stand to benefit by an amount in excess of the jurisdictional amount; however, the costs of compliance to the defendant might well be in excess of the jurisdictional amount.' "59/ 60/

The so-called "viewpoint rules" are employed in this situation to determine the perspective used to measure the amount in controversy. The traditional (and still majority) rule is that a claim is valued from the plaintiff's perspective, i.e., "the amount the plaintiff stands to gain." Some jurisdictions have now adopted a "defendant's viewpoint" rule, some an "either viewpoint" rule, and still some others use the viewpoint of the party asserting jurisdiction (we may note that the last two are de facto defendant viewpoints in the removal context). These various rules are formulated, however, with regard to individual actions. The multiple plaintiff situation has an obvious limiting effect on the viewpoint rules, since valuing a multiple plaintiff action from the perspective of the defendant would aggregate the value of the individual claims-the use of the defendant's viewpoint in the class action context would necessarily violate the rule of non-aggregation.

Therefore, even where the use of a defendant's viewpoint would otherwise be allowed (were the action an individual one) the viewpoint rule's aggregation yields to the rule of non-aggregation-in other words, class actions mandate the use of the plaintiff's viewpoint. To do otherwise would circumvent the non-aggregation rule. All cases considering the issue squarely have so held.61/ 62/

In re Cardizem CD Antitrust Litigation, 90 F.Supp.2d 819 (E.D. Mich. 1999)

Under Brand Name,63/ the nature of the claim determines viewpoint. Only where the right asserted is common and undivided may the defendant's viewpoint be used. Accordingly, in Cardizem, the court noted that its use of the "either" viewpoint was made possible only because of its initial finding that the plaintiffs had a common and undivided interest in the injunctive relief. Otherwise, it noted, the plaintiffs' viewpoint would be mandated: "When applying the 'either viewpoint' approach, the Court must be careful to ensure that there is no circumvention of the nonaggregation rule ÷. [Only] where the plaintiff and the class members have a common and undivided interest in the injunctive relief ÷ is [it] appropriate to aggregate the total cost of the requested injunctive relief from the defendant's viewpoint".64/ The Cardizem court erred, however, in finding a common and undivided interest. See Part II.C.2, supra.

III. Zahn and 28 U.S.C. ? 1367

In Zahn v. International Paper Co.,65/ the Court held that in a class action, each plaintiff asserting a separate and distinct claim must satisfy the amount in controversy requirement. The case was brought on behalf of a putative class of some 200 shorefront property owners alleging that discharges from the defendant's pulp and paper mill had polluted Lake Champlain and diminished the value of their properties. While each of the named plaintiffs had asserted damages in excess of the jurisdictional minimum of $10,000, the same could not be said every class member. The court refused to certify the case as a class action and plaintiffs appealed, arguing that Fed. R. Civ. P. 23 only required that the named plaintiff(s) in a class action satisfy the amount in controversy. The Court rejected this argument and determined that allowing a court to exercise pendent jurisdiction over an entire class where only the named plaintiffs met the amount in controversy requirement was impermissible, for the same reasons articulated in Snyder: "The Court of Appeals correct held that this case is governed by the rationale of this Court's prior cases construing the statutes defining the jurisdiction of the District Court.66/ ÷ At this time, we have no good reason to disagree with Snyder v. Harris or with the historic construction of the jurisdictional statutes, left undisturbed by Congress over these many years."67/

The Judicial Improvements Act of 1990 provides that "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III".68/ The statute listed a number of exceptions to the grant of supplemental jurisdiction, but did not include class actions as an excepted circumstance. The question arose then, whether "Congress overruled Zahn and granted supplemental jurisdiction over the claims of class members who individually do not demand the necessary amount in controversy."69/ To date, the Fifth and Seventh Circuits,70/ have answered the question in the positive,71/ while the Third,72/ Eighth,73/ and Tenth Circuits74/ have answered in the negative. The Supreme Court failed to resolve the issue in its affirmation of Abbott Labs,75/ and the split remains.76/

IV. Conclusion

The standards for aggregation of claims are of long standing, as noted by the Supreme Court in Snyder and Zahn. The recent decisions finding separate and distinct interests to be common and undivided are distinguishable from the cases properly applying these standards. The question of aggregability requires an examination of the underlying claims of the individual plaintiffs, with an eye toward the long-standing rules under which Troy and Synder were decided-and in fact, the simple inquiry "can each plaintiff bring his or her own action?" will provide the answer to the question of aggregability of claims. Except in the limited circumstance of a Louisiana class action brought under a statute "mandat[ing] an award of attorneys' fees over and above an award of compensatory damages",77/ a state-court-filed non-federal question class action will not reach the jurisdictional threshold and removal will not lie.

V. Appendix of Cases

What follows is a brief circuit-by-circuit summary of the leading cases on the issue of aggregation. Each section is preceded by a shorthand reference to cases holding (i) that class action claims are not "common and undivided interests"; (ii) that punitive damages and attorney's fees are not aggregable; and (iii) that the "plaintiff's viewpoint" is required in the class action context. Each circuit's position on ? 1367 is also given, where available. Other points of interest in each case are noted by brief tags inserted into the summaries as underlined text.

1. First Circuit

No "Common and Undivided Interest": Freitas; Ferris

Punitive Damages/Attorneys' Fees Not Aggregable: Spielman; Freitas;

Plaintiff's Viewpoint Required in Class Action: Freitas; Hairston; Ferris;

Supplemental Jurisdiction under ? 1367 Not Available: Hairston

Spielman v. Genzyme Corp., 193 F.R.D. 19 (D. Mass. 2000) (Harrington, J) (attorneys' fees not aggregable: "[a]ttorneys' fees generally do not constitute part of the 'amount in controversy' for purposes of determining diversity jurisdiction ÷ [r]easonable attorneys' fees, however, can be included in an assessment of the amount in controversy when provided by statute ÷ [here,] plaintiff contends, and it may be true, that the amount of additional reasonable attorneys' fees to be incurred in this case will be more than the approximately $31,415 needed to meet the jurisdictional minimum of $50,000 ÷ [but] [t]his case ÷ is brought by plaintiff as a putative class action ÷ [and] must, therefore, be provisionally considered a class action"; although "'[m]ost courts that have faced the question have concluded ÷ that the estimated amount of an award of attorneys' fees in a class action must be prorated across the membership of the putative class' ÷ Plaintiff ÷ relies on a case from the Fifth Circuit, which recognized the general rule precluding the aggregation of prospective attorneys' fees for purposes of the jurisdictional amount, but nevertheless concluded that a Louisiana state statute ÷ specifically provided for an award of attorneys' fees to 'representative parties' ÷ [t]he Massachusetts Consumer Protection Statute [here], however, provides for an award of attorneys' fees to the 'petitioner' ÷ [a term] 'historically used in Massachusetts as the equivalent" of the term 'plaintiff' ÷ [while] the term 'representative parties' used in the Louisiana state statute ÷ [is] 'a term of art pertinent to class actions' ÷ [u]nlike the Louisiana statute examined in Abbott Laboratories, the statutory language of Mass.Gen.L. ch. 93A does not controvert the general proposition that attorneys' fees are to be pro rated across the putative class ÷ [and] [a]s such, any reasonable amount of attorneys' fees must be divided pro rata among all members of the putative class"); aff'd, 251 F.3d 1 (1st Cir. 2001).

Freitas v. First New Hampshire Mortgage Corp., 1998 WL 657606 (D.R.I. July 23, 1998) (Lovegreen, Mag.) (interest in contract claims not "common and undivided": "'it is well-settled that in a diversity-based class action, members of the class may not aggregate their claims in order to reach the requisite amount in controversy' ÷ [since] separate and distinct claims cannot be aggregated for purpose of determining amount in controversy unless they have a common and undivided interest ÷ [here,] [t]he claims in the present dispute are plainly separate and distinct ÷ [as] each class member ha[s] [a] separate insurance contract with defendant"; viewpoint yields to non-aggregation rule: "[i]n assessing the value of the injunctive relief sought by plaintiff, the parties disagree as to the viewpoint from which the matter in controversy is to be measured ÷ [f]rom the plaintiff's viewpoint, the value of an injunction that enjoins First New Hampshire from further imposing and collecting such fees in violation of its contracts is merely nominal ÷ because plaintiff is unlikely to obtain financing again from First New Hampshire, and if he did attempt to obtain such financing, the imposition of those fees could no longer be considered deceptive ÷ [and while] there is [presumably] some value to be gained from such an injunction on behalf of future borrowers, ÷ [there is] none from plaintiff's viewpoint ÷ [h]owever, from defendant's viewpoint, the value is likely to be significantly higher, perhaps in excess of $75,000 ÷ [and so] First New Hampshire contends ÷ that the defendant's viewpoint is appropriate in this matter because the 'First Circuit is more disposed toward adopting the 'defendant's viewpoint' test under the right circumstances, than perhaps any other jurisdiction' ÷ [although] [t]his court agrees that the First Circuit might be inclined to adopt the defendant's viewpoint test if the circumstances are right, ÷ the circumstances here are not right"; "Plaintiff ÷ argues that the defendant's viewpoint test is inappropriate in class actions because such a test would eviscerate Supreme Court precedent, namely Snyder and Zahn ÷ [while] First New Hampshire rejects this argument on the grounds ÷ [that] ? 1367 has overruled Zahn ÷ [and] [a]lthough First New Hampshire's argument is supported by some case law in other jurisdictions, this court (without deciding whether Zahn has been overruled by ? 1367) believes that the amount in controversy should be measured from the plaintiff's viewpoint in the present dispute ÷ [s]pecifically, 28 U.S.C. ? 1441 permits removal only where the district court would have original jurisdiction ÷ [so that] if plaintiff were to have brought this suit in federal district court, the amount in controversy would have been 'tested by the value of the suit's intended benefit to the plaintiff' ÷ [but] '[u]nder the defendant's viewpoint rule, if a case originally brought in federal court were dismissed for failure to meet the jurisdictional amount from the plaintiff's viewpoint, it could yet end up in federal court if the plaintiff reinstituted the case in state court and the defendant-from whose point of view the required amount was present-then removed it ÷ it is generally true that if a case could not originally be brought in federal court it may not be removed there ÷ [and] the defendant's viewpoint rule could lead to a situation where the federal court would assume removal jurisdiction where it could not assert original jurisdiction ÷ [b]eing thus contrary to the statutory directive, [that] rule is not a viable interpretation' ÷ [i]n addition, a federal court 'should resolve any doubt in favor of remand, as the removal statute is to be narrowly interpreted'": Abbott Labs distinguished: "[a]ttorneys' fees are generally considered to be a part of the amount in controversy when they are authorized by statute ÷ [and] [t]herefore, this court must take them into consideration in order to calculate properly the amount in controversy ÷ [here,] First New Hampshire argues for the proposition that attorneys' fees be aggregated and not distributed pro rata among class members ÷ [the statute], however, states only that 'the court may award ... reasonable attorneys' fees and costs' [and] does not specify that such an award is to be directed to class representatives or to the prevailing attorneys ÷ [so that] the precedent cited by First New Hampshire is distinguishable on the facts, and is neither controlling upon nor persuasive to this court"; "Plaintiff contends that the proper rule is pro rata distribution of the attorneys' fees among the putative class members ÷ [but] [w]ithout deciding whether attorneys' fees should be aggregated or distributed pro rata, this court believes that First New Hampshire has not met its burden of proving that attorneys' fees are more likely than not to exceed $75,000 ÷ [as it] has failed to proffer any evidence that attorneys' fees will be so great as to satisfy the requisite amount in controversy"; punitive damages not aggregable: "Plaintiff seeks punitive damages as provided in R.I. Gen. L. ? 6-13.1- 5.2(a), and First New Hampshire does not refute that if plaintiff prevails at trial punitive damages may be awarded ÷ [and] [t]he parties also agree that punitive damages are to be considered in calculating the amount in controversy for purposes of diversity jurisdiction ÷ [but] disagree about whether punitive damages can be aggregated for that purpose ÷ First New Hampshire suggests that the punitive damages of every class member be aggregated ÷ [but] [a]lthough the First Circuit has not addressed this issue, the Second Circuit has held ÷ that 'punitive damages asserted on behalf of a class may not be aggregated for jurisdictional purposes where ... the underlying cause of action asserted on behalf of the class is not based upon a title or right in which the plaintiffs share, and as to which they claim, a common interest' ÷ [and here], plaintiff's breach of contract and deceptive trade practices claims in this case ÷ have no common and undivided interest ÷ [so] [t]herefore, punitive damages should be considered pro rata for the purpose of calculating the jurisdictional amount in controversy"; "[f]urthermore, to exceed $75,000 with a punitive damages claim where compensatory damages are to be no greater than $200, is highly unlikely ÷ [in light of BMW of N. Am., Inc. v. Gore's holding] that 'exemplary or punitive damages must bear a 'reasonable relationship' to compensatory damages' ÷ [here,] [i]n order for plaintiff's claims to exceed $75,000, his pro rata portion of any punitive damages award would need to be approximately 375 times his compensatory damages (assessed at $200) ÷ [b]ecause this is not only unlikely, but probably grossly excessive and unreasonable given the facts as alleged, this court finds that plaintiff's share of any possible punitive damages award would not exceed, or even come close to exceeding, $74,800")

Hairston v. Home Loan and Investment Bank, 814 F. Supp. 180 (D. Mass. 1993) (Tauro, J) (plaintiff's viewpoint used to value claim: "[t]he issue as to whether a court may use the perspective of a defendant, as well as a plaintiff's, in determining jurisdictional amount is one that has sharply divided the federal courts ÷ [s]ome courts have followed the "plaintiff viewpoint" rule, ÷ reason[ing] that to do [use the defendant's viewpoint] would circumvent the well-established rule that the claims of class members cannot be aggregated for the purpose of meeting jurisdictional amount"; here, "defendants claim that the income they would have received over the life of the loans would exceed $50,000 ÷ [and] urge, therefore, that this court adopt the 'defendant viewpoint' rule and determine that the jurisdictional amount for removal has been met ÷ [but] [u]nder the circumstances, this court declines to do so ÷ [u]nlike the situations in ÷ [the cases cited by defendants] the potential damage to defendants here is speculative and unpredictable ÷ [so that,] [w]ithout precluding the possibility of adopting the 'defendant's viewpoint' rule in an appropriate situation, this court determines that the jurisdictional amount in this case must be assessed from the plaintiff's viewpoint"; Zahn not overruled by 28 U.S.C. ? 1367:"Defendants contend that under 28 U.S.C. ? 1367, they need only establish jurisdictional amount with respect to the named plaintiffs, as opposed to with respect to each member of the class ÷ [but] section 1367 does not overrule the Zahn requirement that each member of the class in a diversity action assert a claim that meets the jurisdictional amount")

Ferris v. General Dynamics Corp., 645 F. Supp. 1354 (D.R.I. 1986) (Selya, J) (viewpoint yields to non-aggregation rule: "[w]hat is really at issue [here] is the appropriate methodology by which compliance with the amount in controversy benchmark should be calculated ÷ plaintiffs assert that their claims cannot be aggregated to climb over the jurisdictional threshhold ÷ [while] GDC's answer to this imprecation is twofold ÷ asseverat[ing] that it is permissible to assay the amount in controversy from the defendant's viewpoint rather than from the coign of vantage of each separate plaintiff ÷ [and] [a]s a fallback position, ÷ argu[ing] that, even if the amount in controversy must be gauged from the claimants' outlook, this is exactly the type of 'common fund' case where aggregation of the sums claimed by individual plaintiffs is appropriate in order to scale the jurisdictional heights"; "[i]n cases brought to secure the balm of money damages, the redress sought by the plaintiff will be precisely the same as the liability to which the defendant is exposed ÷ [e.g.,] [i]f the plaintiff has a realistic expectation of recovering $50,000, then the defendant is exposed in a like amount-and, since the two outlooks coincide, it makes no jurisdictional difference whose frame of reference is used to assess the dollars in controversy ÷ [d]espite this general congruence of viewpoints, courts have typically looked at things from the plaintiff's standpoint, eyeing the benefit expected to accrue to the plaintiff as the best yardstick for measurement of the amount in controversy ÷ [but] [a] different approach must be taken when plaintiffs, as in this case, seek primarily equitable relief as opposed to money damages ÷ [s]ince suit is not brought to recover dollars as such, some method must be employed to translate the goal of the litigation into an approximate monetary value ÷ [i]n such situations, the 'amount in controversy' has historically been calculated by assessing the value to the plaintiffs of conducting their affairs free from the restriction or imposition which they seek to restrain ÷ [i]n the case at bar, for example, the plaintiffs hope to enjoin GDC from persisting in its refusal to recognize optometric expenses for eye care examinations in the same fashion and to the same extent as the employer recognizes ophthalmologic expenses ÷ [so that] [t]he "value" of such recognition to the plaintiffs is in no single case as much as $10,000-but the "value" to all of the plaintiffs, collectively, is in excess of that amount"; "[o]ver time, a growing number of courts have been willing to discard a strict 'plaintiff's viewpoint' rule where common sense or strong practical considerations dictate utilization of a different modality ÷ [t]hus, in certain instances involving declaratory or injunctive relief, courts have occasionally found diversity jurisdiction if, from the viewpoint of either plaintiff or defendant, more than the statutory amount could fairly be said to be in controversy ÷ GDC seizes on this authority as a cite for sore eyes, urging that it is therefore permissible for this court to measure the amount in controversy from the corporate perspective of General Dynamics ÷ [t]he defendant fails, however, to incorporate a key fact into its presentation: this suit has been instituted and prosecuted as a class action ÷ [and] [i]n the end, that insight ties the court's hands and effectively negates the possibility of calculating the amount in controversy based on the vista from the defendant's viewpoint ÷ [i]n Snyder ÷, the Court held that separate and distinct claims in class actions cannot be aggregated for the purpose of meeting the jurisdictional 'amount in controversy' requirement ÷ [and] [l]ater, in Zahn ÷, the Court elaborated on the conceptual underpinnings first glimpsed in Snyder ÷ [r]ead in the albedo of Snyder, Zahn portends that, in a class action, diversity jurisdiction is defeated so long as there is any member of the class whose separate and distinct claim does not satisfy the jurisdictional requisite ÷ [so that,] [g]round down to its sheerest transparency, GDC's plea is a foredoomed, indeed perverse, attempt to avoid the implications of these two cases"; while "[t]here is no doubt that, in certain circumstances, it makes considerable sense to examine the amount in controversy from the defendant's viewpoint ÷ [i]n the class action setting, however, the prescription is ineffective ÷ [w]here plaintiffs bring a class action, and the claims of the class members can most realistically be viewed as separate and distinct, [and] it would run contrary to established authority to swerve around the forbidden aggregation of plaintiffs' claims by employing a defendant's viewpoint analysis ÷ [t]his court so holds, and thereby aligns itself with a number of sister tribunals which have flatly refused to allow the outlook from the defendant's perch to intrude in circumstances such as these ÷ [a]ny other result would work an usurpation of the established line of precedent derived from Zahn and Snyder"; interest in equitable relief not "common and undivided": "[i]n a last-ditch effort to establish the existence of diversity jurisdiction, the defendant argues that, even if the amount in controversy is visualized from the viewpoint of the plaintiffs, it nevertheless suffices on these facts ÷ serv[ing] up a cleverly constructed theorem in support of that menu ÷ [which] contends that the 'associational standing' of the plaintiff Rhode Island Optometric Association (RIOA) creates a special situation permitting aggregation of claims where members seek to enforce a 'single title or right' ÷ [and] that aggregation is both allowable and particularly appropriate in this case because these plaintiffs, as a group and presumably as class representatives, seek to lay claim to a 'common fund'"; "[c]lever though it may be, the construct does not withstand close perscrutation ÷ [t]o argue that 'associational standing' is the crux of this matter-that is, that RIOA's joinder as a party plaintiff suffices in and of itself to save the day-is to exalt a mirage' ÷ [while] there are circumstances where a trade organization or other special interest group may have standing solely as the representative of its members, even in the absence of injury to itself ÷ an abstract concept of 'standing' confers neither jurisdiction nor a right to aggregate members' claims to reach a jurisdictional threshold; if the law were otherwise, then Synder and Zahn could facilely be undercut by the cosmetic expedient of forming a so-called 'association' to embrace the (individually insufficient) claims of putative class members and agglomerating those claims to exceed the limit required for the amount in controversy ÷ [s]uch a handy detour simply does not exist ÷ [t]he Supreme Court has insisted on distinguishing associational suits from class actions ÷, and the case at bar plainly falls into the latter classification"; "[w]hat the defendant sees as the distinctive feature of RIOA's involvement is the contention that the trade group and the remaining plaintiffs do not assert disparate claims, but rather sue to enforce a single, uniform right to the behoof of all optometrists and employee-consumers ÷ [t]he case at bar is, however, a square peg which cannot easily be squeezed into the rolling contours of the Zahn exception ÷ [t]he difficulty rests with the fact that the 'integrated right' exception permits aggregation only when (i) some discrete fund or kitty is involved, and (ii) as among the petitioning plaintiffs, the claim is both 'common' (all sue by virtue of a like right) and 'undivided' (the suitors make no specific claims for individual allocation of the fund) ÷ [i]n the present matter, this model plainly fails to fit. There is no "fund" as such-no finite amount of dollars which awaits distribution ÷ [t]here is, to the contrary, a variable liability depending on how many of GDC's employees (and their dependents) avail themselves of vision care and what the prevailing charges for eye examinations may be from time to time ÷ plaintiffs do not purport to sue by virtue of an integrated right: each optometrist and each consumer-employee has his or her own lenses to grind, arising out of his or her particular circumstances ÷ [a]nd, most telling of all-each of the plaintiffs (named and unnamed) seeks specific, individualized relief")

2. Second Circuit

No "Common and Undivided Interest": Gilman; Greenberg; Steinberg; Colon

Punitive Damages/Attorneys' Fees Not Aggregable: Gilman; Mehlenbacher; Zahn; Greenberg

Plaintiff's Viewpoint Required in Class Action: Colon; but see: Steinberg

Supplemental Jurisdiction under ? 1367 Not Available: Greenberg; Colon

Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291 (2d Cir. 2000) (Calabresi, J, w/ McLaughlin and Mukasey, JJ) (diversity requirement considered nostra sponte) (punitive damages not aggregable: "plaintiffs' complaint did not specify the particular amount of damages sought; its ad damnum clause merely requested that plaintiffs recover 'the damages determined to have been sustained by them,' together with an unspecified sum of punitive damages ÷ and [i]n its petition for removal, Akzo claimed that the amount in controversy was satisfied 'given the multiplicity of plaintiffs and their claim for punitive damages' ÷ seemingly assum[ing] that the damages sought by plaintiffs could be aggregated to satisfy the statutory figure ÷ [but] such an assumption was unwarranted ÷ [as] [t]he Supreme Court has long held that separate and distinct claims raised by different plaintiffs may not be aggregated to satisfy the jurisdictional amount in controversy ÷ [and] [t]he claims raised by the plaintiffs here are separate and distinct from one another, as they seek recovery for their losses only, and not collectively"), aff'd in part sub nom. Integrated Waste Services, Inc. v. Akzo Nobel Salt, Inc., 216 F.3d 1072 (2d Cir. 2000)

Gilman v. BHC Securities, Inc., 104 F.3d 1418 (2d Cir. 1997) (Jacobs, J w/ Newman and Chatigny, JJ) (interest in class fund not "common and undivided": "BHC argues that the class members-each of whom may have suffered only a trivial loss-'assert a common and undivided interest,' and that such claims, under 'long established principles of diversity jurisdiction,' may be aggregated to satisfy the jurisdictional amount in controversy ÷ [while] [i]t is true that claims may be aggregated to reach the jurisdictional minimum 'when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest' ÷ that rule is inapplicable here, because the class members' claims are 'separate and distinct' and therefore cannot be aggregated, and because aggregation is not justified by the manner in which order flow payments originate or by the demand for punitive damages ÷ 'the well-established rule [is] that each of several plaintiffs asserting separate and distinct claims must satisfy the jurisdictional-amount requirement if his claim is to survive a motion to dismiss' ÷ [and] [a]n equally well-established principle is that 'when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount' ÷ [c]ourts apply the common fund doctrine, and permit aggregation of claims to satisfy the jurisdictional amount, 'only when several parties have a common, undivided interest and a single title or right is involved' ÷ [a]s one court expressed the principle, the 'paradigm cases' allowing aggregation of claims 'are those which involve a single indivisible res, such as an estate, a piece of property (the classic example), or an insurance policy. These are matters that cannot be adjudicated without implicating the rights of everyone involved with the res' ÷ [here], Gilman's claims regarding the impropriety and misuse of order flow payments do not implicate a 'single indivisible res', and could be adjudicated on an individual basis, because the putative class members have no 'common and undivided interest' in those payments ÷ [t]he common fund exception therefore is inapplicable in this case"; "BHC argues that the class members 'jointly seek the benefits that accrued to BHC from aggregated order flow' ÷ [such that] 'the amount in controversy is based on a common right in which each putative class member has a common and undivided interest' ÷ [but] [b]ecause the class members in this case do not in any sense possess joint ownership of, or an undivided interest in, a common res, their claims based on order flow payments are separate and distinct ÷ [p]laintiffs in paradigm 'common fund' cases assert claims to a piece of land, a trust fund, an estate, an insurance policy, a lien, or an item of collateral, which they claim as common owners or in which they share a common interest arising under a single title or right ÷ [here, the] putative class have no joint interest other than a shared appetite for a money judgment payable by a single defendant-which is not the type of 'common and undivided interest' that warrants an exception to the rule against aggregating claims ÷ [a]ll of BHC's customers allegedly suffered similar losses due to BHC's handling of their securities trades; nonetheless, though their claims are asserted together in a class action, the plaintiffs never possessed anything in common prior to the litigation ÷ [and] [t]he only right or title allegedly held by the customers is the right to sue BHC for the undisclosed extracontractual benefit that BHC derived from their securities trades; that right is distinct to each plaintiff, and is based on BHC's handling of that person's separate transactions ÷ [h]ad this case proceeded to the stage of class certification in either the state or federal court, it seems clear that each class member would have had the right to opt out of the class ÷ [while] [t]he facts that BHC pooled the plaintiffs' trading orders to receive benefits, and that the market makers conferred such benefits on the basis of the monthly volume of orders that they received, does not mean that the plaintiffs held joint title to the total volume of their orders or to the aggregate of the allegedly wrongful order flow payments generated by such volume ÷ [o]n the face of the complaint, ÷ the plaintiffs' suit alleges that BHC's receipt of order flow payments harmed each individual customer in the conduct of that customer's individual securities transactions ÷ [and] [n]ot coincidentally, the SEC regulations requiring disclosure of order flow payments compel brokers to disclose to their customers (in confirmation of securities transactions) not only 'whether payment for order flow is received by the broker or dealer for transactions in [that type of] securities' ÷ but also-upon an individual customer's written demand-'the source and nature of the payment for order flow that is received in connection with the particular transaction' of that individual customer ÷ [i]n short, although the class action device allows the plaintiffs to combine their claims for convenience, neither that form of action nor the nature of order flow payments permits the aggregation of the plaintiffs' separate and distinct claims so as to satisfy the amount in controversy"; interest in disgorgement fund not "common and undivided ": "BHC's second major argument in support of federal jurisdiction is that the class members have a 'common and undivided interest' in recovering from a 'fund', and that the total value of that fund should be used to determine whether the jurisdictional minimum has been reached ÷ BHC bases this argument on its assertion that the plaintiffs 'seek disgorgement of all benefits of payments for order flow' received by BHC, 'whether identifiable to a particular transaction or not' ÷ [and] [b]ecause this right to disgorgement (BHC contends) necessarily depends on the theory that BHC breached a fiduciary duty to the class as a whole, the object of the plaintiffs' suit can only be to 'share in the fruits of BHC's breach based on the total amount of disgorgement', and not on the basis of individual plaintiffs' trades with BHC ÷ thus conclud[ing] that the claims to recover its order flow payments are 'held jointly by the plaintiffs,' and the 'entire amount of the benefits should be considered for jurisdictional purposes' ÷ [but] [p]reliminarily, BHC's reading of the complaint overstates the contentions and goals of the class ÷ [t]he complaint (1) alleges that 'plaintiff and the other members of the class are entitled to recover any monies paid as kickbacks or commercial bribes to BHC on customer transactions; and (2) seeks a judgment 'requiring BHC to pay to plaintiff and the members of the class the amount of kickbacks and other inducements received from market makers for the execution of customer orders' ÷ [w]hile BHC views these passages as a 'specific claim' that BHC disgorge all order flow payments that it received for all of its customer transactions, 'whether identifiable to a particular transaction or not', ÷ we think this reading adds considerable gloss ÷ [t]he quoted sections of the complaint are not at all inconsistent with a collective demand by the class members for the disgorgement of order flow payments received in respect of their individual transactions, as accurately as that amount can be calculated ÷ [and] [e]ven if BHC's reading of the complaint were sound, the plaintiffs' claims still cannot be aggregated because the class members have no common and undivided interest in the 'fund' of damages that they might receive ÷ BHC's argument-that its disgorgement of order flow payments would produce a common fund in which all class members would have a common and undivided interest-proceeds from the wrong point: the disgorgement of the payments to create the 'fund' ÷ [s]uch a 'fund' is created to facilitate the litigation process in virtually every class action, and has nothing necessarily to do with whether the plaintiffs shared a pre-existing (pre-litigation) interest in the subject of the litigation ÷ [u]nder the classic 'common fund' cases, what controls is the nature of the right asserted, not whether successful vindication of the right will lead to a single pool of money that will be allocated among the plaintiffs ÷ [t]o call any recovery that a class might win a 'fund' to which the class plaintiffs are jointly entitled is 'merely added verbiage ÷ [as] [t]here is no fund ÷ [and] [t]he claim remains one on behalf of separate individuals for the damage suffered by each due to the alleged conduct of defendant' ÷ [i]n summary, BHC points to certain unitary characteristics of the plaintiffs' claims in order to avail itself of the 'common fund' doctrine: the aggregation of the stock transactions on which order flow payments are made; the overall benefit that BHC derives from those payments (and that Gilman seeks to capture); and the single pot that would be created to receive and distribute damages ÷ [b]ut these features of the case do not demonstrate a unitary claim; they merely reflect the problems of theory and proof in this case, and the named plaintiff's efforts to solve or plead around them ÷ [i]t is of course commonplace to collect class action damages wholesale, put the proceeds in a single fund, and distribute the proceeds retail upon a showing of specific entitlement in accordance with the judgment ÷ th[is] aggregation of transactions and the pooling of damages are simply expedients of litigation and pleading that facilitate Gilman's efforts: (a) to show the existence of a duty to him and the other class members; (b) to demonstrate causation sufficient to justify reallocating the order flow payments from BHC to its customers; and (c) to collect damages for any or all of the claimants"; punitive damages not aggregable: "BHC's third argument is that it 'believes' that the plaintiffs as a class will seek punitive damages exceeding $50,000, and that this full amount should be deemed the amount in controversy for jurisdictional purposes because 'claims for punitive damages are, by their nature, collective and should be treated as a common and undivided claim for jurisdictional purposes' ÷ [for its position] BHC relies on a line of authority that has developed for the proposition that where multiple plaintiffs file a joint claim for punitive damages, the total sum claimed should be attributed to each individual plaintiff in determining whether each has satisfied the $50,000 jurisdictional minimum ÷ [but] [w]e decline to adhere to that principle ÷ [w]e decline to join the courts holding that punitive damages claims are by nature 'common and undivided' and therefore aggregable for jurisdictional purposes ÷ [as] [w]e think that the rule in Snyder, Zahn, and other cases bars the aggregation of punitive damages claims absent a prior determination that the underlying claim-the basis on which such damages are sought-asserts a single title or right ÷ BHC's common fund argument on punitive damages is substantially similar to its common fund argument on the underlying claim, which we have rejected ÷ Gilman and the putative class members may indeed share an interest in receiving damages, but that has nothing to do with whether-prior to litigation-they jointly held a single title or right in which each possessed a common and undivided interest ÷ [i]t is irrelevant whether successful vindication of claims would create a single pool of recovery to be allocated among multiple plaintiffs; a common interest in a pool of funds is not the type of interest that permits aggregation of claims under the 'common fund' doctrine ÷ [and] to hold that ''all plaintiffs have a collective interest in the creation of a fund sufficient to punish and deter any alleged misconduct on the part of the defendant' is clearly not what the Supreme Court had in mind in Snyder and Zahn''"; "[o]ne feature of 'common and undivided' interests in a single title or indivisible res is that the rights to such interests cannot be determined without implicating the rights of every other person claiming a similar entitlement ÷ [and] [m]anifestly, punitive damages do not work that way ÷ punitive damage claims entail the 'potential for multiple liability' ÷ [so] [i]t cannot be denied that Gilman and his putative class members could 'sue separately for punitive damages, and, whether they prevailed on the merits or not, whether they were awarded punitive damages or not, the rights of subsequent plaintiffs would remain unaffected' ÷ [p]unitive damages claims thus cannot be deemed the type of single, indivisible res in which-under the classic 'common fund' analysis- multiple plaintiffs share a common and undivided interest that justifies aggregation ÷ [as], like claims for compensatory damages, [they] are 'brought together in a class action only for the convenience of the plaintiffs' ÷ [w]e hold, therefore, that punitive damages asserted on behalf of a class may not be aggregated for jurisdictional purposes where, as here, the underlying cause of action asserted on behalf of the class is not based upon a title or right in which the plaintiffs share, and as to which they claim, a common interest ÷ [t]o hold otherwise, and aggregate punitive damages even when the actual damages could not be aggregated, 'would eviscerate the holdings of Snyder and Zahn and would run counter to the strict construction of the amount-in-controversy requirement those cases mandate")

Steinberg v. Nationwide Mutual Ins. Co., 91 F. Supp. 2d 540 (E.D.N.Y. 2000) (Spatt, J) (plaintiff's viewpoint used to value injunctive relief: "[i]n 1911, the Supreme Court stated that 'when two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount' [and] ÷ [y]ears later, in Zahn ÷, the Supreme Court stated that 'this distinction and rule that multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional-amount requirement for suit in the federal courts were firmly rooted in prior cases dating from 1832, and have continued to be the accepted construction of the controlling statutes, now ?? 1331 and 1332. The rule has been applied to forbid aggregation of claims where none of the claimants satisfies the jurisdictional amount' [while] the Second Circuit [has] stated that the claims of several plaintiffs against a common defendant can only be aggregated where 'several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest' ÷ [and] [s]uch 'common fund' cases typically involve 'a common interest arising under a single title or right and are matters that cannot be adjudicated without implicating the rights of everyone involved with the res' ÷ [here,] [t]he defendants have failed to meet their burden of demonstrating that the plaintiffs claims can be aggregated in order to meet the $75,000 threshold ÷ [since] each member of the class would be entitled to damages based upon their individual breach of contract and the specific loss incurred as a result of the betterment charges that were paid or incurred ÷ [and] [a]s such, the Court will not aggregate the potential value of the class"; viewpoint and nature of claim analyses distinguished: "[t]his finding, however, does not end the Court's analysis as the defendants also argue that the injunctive relief sought by the plaintiffs furnishes the basis for federal jurisdiction ÷ the Second Circuit [has] stated that 'where the plaintiff seeks injunctive relief, the value of his claim is generally assessed with reference to the right he seeks to protect and measured by the extent of the impairment to be prevented by the injunction ÷ [and] [i]n calculating the impairment, the court may look not only at past losses but also at potential harm' ÷ [here, defendant] confirms that an order prohibiting the practice of recognizing 'betterment' charges and the use of remanufactured parts would have an economic impact exceeding $75,000 ÷ [and] [i]n fact, the plaintiff's complaint itself states that Nationwide is saving 'millions of dollars annually by ÷ [so doing; therefore] [t]he Court finds that, with reasonable certainty, the imposition of an injunction would cause economic harm in excess of $75,000 to the defendant ÷ [and] that the plaintiff's request for injunctive relief meets the jurisdictional minimum of $75,000")

Greenberg v. Trace Int'l Holdings, Inc., 1999 WL 587935 (S.D.N.Y. Aug. 4, 1999) (Stein, J) (interest in contract claims not "common and undivided": "[c]laims of several plaintiffs against a common defendant may be aggregated only 'when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest' ÷ [and] [s]uch 'common fund' cases typically involve 'claims to a piece of land, a trust fund, an estate an insurance policy, a lien, or an item of collateral, which the plaintiffs claim as common owners or in which they share a common interest arising under a single title or right' and are 'matters that cannot be adjudicated without implicating the rights of everyone involved with the res' ÷ [and] [t]hat is not the case here"; Zahn still valid: "[n]either the U.S. Supreme Court nor the U.S. Court of Appeals for the Second Circuit has addressed the issue of whether ? 1367 overrules the holding in Zahn ÷ [h]owever, the courts of this district which have considered the issue have uniformly determined that ? 1367 does not overrule Zahn by permitting district courts to exercise supplemental jurisdiction over the claims of class members that do not meet the jurisdictional amount ÷ [t]hus, pursuant to the precedent in this district, even if one of the plaintiffs met the amount in controversy requirement, Zahn would prohibit this Court from exercising supplemental jurisdiction over putative class members' claims of less than $75,000 and would require dismissal of those claims"; attorney fees not aggregable: while "'[a] potential award of attorneys' fees may be considered by the court when determining whether a case involves the jurisdictional minimum' ÷ a court can consider attorneys' fees only if they are reasonable and are provided for by contract or state statute ÷ [and] the total amount of fees may not be aggregated for jurisdictional purposes, but must be attributed pro rata to individual class members ÷ [w]hile New York law grants a court discretion to award attorneys' fees to representatives of a prevailing class, see N.Y. C.P.L.R. ? 909, it would be premature to add such fees at this time in determining the amount in controversy requirement ÷ [as (1)] the class has not yet been certified-indeed, no motion for class certification has even been made ÷ [(2)] plaintiffs are entitled to an award of reasonable fees pursuant to the N.Y. C.P.L.R. only if they ultimately prevail in the action, and there is no reasonable method to gauge the plaintiffs' likelihood of success on their breach of contract claim at this point in the litigation [and (3)], there is no way to know what fees are going to be incurred over the course of the litigation or their reasonableness")

Colon v. Rent-a-Center, Inc., 13 F. Supp. 2d 553 (S.D.N.Y. 1998) (Sand, J) (plaintiff's viewpoint used to value claim: "[i]n a suit for damages, the question of whether the amount in controversy exceeds the jurisdictional minimum usually involves a straightforward analysis because the amount the plaintiff stands to gain is the same as the amount the defendant stands to lose ÷ [w]here, as here, there is a request for injunctive relief, however, the question often becomes more complicated and the answer 'may well turn on an initial decision concerning the viewpoint from which the matter in controversy is measured' ÷ [i]n this case, no member of the class has stated a claim for over $75,000 ÷ [but] Rent-A-Center nevertheless argues that the jurisdictional minimum is satisfied insofar as the Plaintiff seeks an injunction requiring Rent-A-Center to lower its cash price on merchandise to the prevailing prices charged by retailers for comparable goods ÷ submit[ting] that 'reducing cash prices to prevailing retail prices would result in a reduction of payments by Rent-A-Center's customers in New York by more than $5 million per year' ÷, [i.e.,] that this prospective injunctive relief must be valued as a whole-thereby satisfying the jurisdictional minimum-since, if such prospective relief is available to one member of the class, then it must be available to all ÷ [i]n this sense, the Defendants argue, the Plaintiff is actually seeking to enforce a single, 'integrated' right on behalf of all of the members of the putative class ÷ [however,] [i]n the Second Circuit, the amount in controversy is measured strictly from the plaintiff's viewpoint, without regard to the amount at stake for any other party ÷ [t]his is the majority rule, and it applies to removal actions just as it does to actions filed originally in federal court ÷ [m]oreover, 'when this viewpoint is employed, it is used regardless of the nature of the action; it applies both to declaratory and equitable relief actions' ÷ [i]ndeed, 'the Second Circuit measures the value of the controversy in injunction actions by reference to the property right that plaintiff seeks to protect by invocation of an equitable remedy' ÷ [a]s one commentator explained ÷ 'if the defendant's viewpoint is to be considered, the rule of nonaggregation may be circumvented ÷ [so] [f]or this reason, courts have been reluctant to adopt any approach other than the plaintiff's viewpoint in class actions' ÷ [a]ccordingly, we will view the present controversy from the perspective of the Plaintiff, and reject any argument that would, as a practical matter, undermine this rule of law"; interest in injunctive relief not "common and undivided": "Rent-A-Center argues that, even if the Court views the amount in controversy from the perspective of the Plaintiff, the jurisdictional minimum is still met because the injunction must be valued as a whole ÷ [t]hat is, because the class members have a 'common and undivided interest' in the prospective injunctive relief, aggregation of the entire $5 million purported value of injunctive would be appropriate ÷ [but] [t]his argument suffers from three principal flaws ÷ [(1)], the case at bar is 'a square peg which cannot easily be squeezed into the rolling contours of the Zahn exception' ÷ [t]he difficulty 'rests with the fact that the 'integrated right' exception permits aggregation only when (i) some discrete fund or kitty is involved, and (ii) as among the petitioning plaintiffs, the claim is both 'common' (all sue by virtue of a like right) and 'undivided' (the suitors make no specific claims for individual allocation of the fund)' ÷ [i]ndeed, the Second Circuit has referred to this as the 'common fund' exception ÷ [t]hus, 'the 'paradigm cases' allowing aggregation of claims 'are those which involve a single indivisible res, such as an estate, a piece of property (the classic example), or an insurance policy ÷ [i.e.,] matters that cannot be adjudicated without implicating the rights of everyone involved in the res'' ÷ [c]learly, this is not such a 'paradigm case' ÷ [(2)], regardless of the merits of the foregoing general framework, we find that the particular facts present here counsel against treating the value of the injunctive relief as a single, integrated unit ÷ [t]hat is, on these facts, aggregating the proposed injunctive relief is inappropriate, just as it would be inappropriate to aggregate the Plaintiff's claims for compensatory damages ÷ [a]s the Seventh Circuit stated in an analogous context involving the question of whether defendant drug companies could continue to charge what the plaintiffs alleged was an illegal price for certain prescription products: '[w]hatever the form of relief sought, each plaintiff's claim must be held separate from each other plaintiff's claim from both the plaintiff's and the defendant's standpoint ÷ [t]he defendant in such a case is deemed to face multiple claims for injunctive relief, each of which must be separately evaluated ÷ [t]he question then becomes whether each plaintiff is asserting an individual right or, rather, a right to an undivided interest in something ÷ [i]n this case it is the former ÷ [as] [e]ach plaintiff has a right to be free from the indirect effects of collusive pricing' ÷ Judge Posner emphasized that 'the test, we repeat, is the cost to each defendant of an injunction running in favor of one plaintiff; otherwise, the nonaggregation rule would be violated' ÷ [t]his prohibition on aggregating claims for prospective injunctive relief in class actions has been followed by numerous other courts ÷ [with] the Ninth Circuit us[ing] language that resonates today: ''[t]otal detriment' is basically the same as aggregation ÷ [t]he only reason the injunction is worth more than $10,000 to Ford is that it would affect all of Ford's future trailer package sales to thousands of other individual consumers' ÷ [(3)], even if Rent-A-Center were correct that the prospective injunctive relief should be viewed as a whole, the substantial problem of valuation would still remain ÷ [a]s one court explained recently: '[m]erely because an injunction is valued as a 'whole' does not mean that this case will necessarily remain in federal court ÷ [t]he value of the injunction must still meet the jurisdictional requirement of the court ÷ [t]he Eleventh Circuit recently explained how this injunction is to be valued: from the viewpoint of the Plaintiff ÷ [but], the court finds itself somewhat baffled by the prospect of valuing a future injunction in a case where the plaintiffs are a class of former consumers of the defendant ÷ [i]t is not the court's job to speculate what that value may be, however ÷ [as] [i]t is the Defendant's job to show the court that the value of the prospective injunctive relief clearly exceeds the jurisdictional limit"; [ii] attorney fees not aggregable: "[p]ositing jurisdiction on the Defendants' second theory involves two steps ÷ [f]irst, the Court must accept Rent-A-Center's contention that under N.Y. C.P.L.R. ? 909, all attorneys' fees, which Rent-A-Center predicts will exceed $75,000 here, should be awarded to the class representative ÷ [a]nd second, having thus established primary jurisdiction over the named Plaintiff, the Court can then exercise supplemental jurisdiction over the remaining class members pursuant to 28 U.S.C. ? 1367 ÷ [however,] [w]e reject both prongs of this particular jurisdictional theory ÷ [and] [i]n doing so, we join the well-reasoned holdings of at least two other courts in this Circuit ÷ [w]ith regard to the first prong of the Defendants' argument, Rent-A- Center correctly observes that 'a potential award of attorneys' fees may be considered by the court when determining whether a case involves the jurisdictional minimum' [s]uch consideration is appropriate, however, only if the attorneys' fees are reasonable, and 'only if they are provided for by contract or state statute' ÷ [here,] N.Y. C.P.L.R. ? 909 ÷ 'provides for two contingencies: first, the court can award attorneys' fees and order that they be taken out of the judgment; second, the court can award attorneys' fees to be paid by the class opponent ÷ [and] [i]t is only the latter which augments the amount in controversy' ÷ [as another court held, while] 'it [is] within my discretion in the present case to award attorneys' fees to the representatives of a victorious class ÷ I must certainly decline at this early stage of the litigation to find that 'justice requires' attorneys' fees, if awarded, should be awarded from the class opponent rather than taken out of the judgment ÷ [as] [t]o do so now would be premature ÷ [w]ithout certification, of course, it is impossible to award fees under ? 909 ÷ [and] [e]ven if a class was certified, there is no factual predicate to estimate reasonably the representative plaintiff's own damages, other than to assume, given the nature of the case, that they are small ÷ [i]t does not appear that ? 909 of the C.P.L.R. was intended to serve as such an easily invoked jurisdictional hook"; Zahn not overruled by 28 U.S.C. ? 1367: "we find that, contrary to Rent-A-Center's assertion, the passage of 28 U.S.C. ? 1367 did not overrule, impliedly or otherwise, the core holding of Zahn ÷ [while] Defendants place heavy emphasis on In re Abbott Labs., ÷ a case that held that the 1990 legislative enactment of 28 U.S.C. ? 1367 effectively overruled Zahn, thereby permitting federal courts to exercise supplemental jurisdiction over the unnamed class members whose claims did not reach the jurisdictional minimum ÷ [and] [o]ther courts, we note, have sanctioned this approach as well ÷ Defendants' position, however, is 'the minority view and has not been followed in this Circuit' ÷ [t]hat is, although the Court of Appeals has yet to rule on this specific question, the district courts in the Second Circuit 'ha[ve] not embraced the idea that 28 U.S.C. ? 1367 overrules Zahn' ")

3. Third Circuit

No "Common or Undivided Interest": Meritcare, Pohl; Pierson

Punitive Damages/Attorneys' Fees Not Aggregable: Packard, Dorian; Lauchheimer

Plaintiff's Viewpoint Required in Class Action: Packard; Dorian; Pierson

Supplemental Jurisdiction under ? 1367 Not Available: Meritcare

Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214 (3d Cir. 1999) (Weis, J, w/ McKee & Rendell, JJ) (multiple plaintiff action) (community of interest does not make for "common and undivided" claims: "There is no dispute that Meritcare's claims exceed $50,000, and if combined with Quinlan's, would total more than $50,000, the minimum required by the diversity statute at the time ÷ [but] the rule is 'long?standing and seemingly well?settled that the claims of several plaintiffs, if they are separate and distinct, cannot be aggregated for purposes of determining the amount in controversy' ÷ [and] [t]he rule applies even if the plaintiffs have a community of interest, but fall short of establishing a single title or right in which they have a common and undivided interest ÷ [here] [a]ggregation based on the total of the claims asserted by Meritcare and Quinlan in this case cannot be used to satisfy Quinlan's jurisdictional amount ÷ [for] [a]lthough their claims stem from the same cause??the roof "collapse" and shared insurance coverage??they are separate and distinct. Quinlan alleges damages that differ from those of Meritcare and are not of an undivided interest"; no supplemental jurisdiction under ? 1367: "[t]he proper construction of Section 1367 is squarely presented by this appeal, and we must therefore stake out our position ÷ [o]ur reading of the statute, particularly the limitations placed on diversity cases in subsection (b) as contrasted with the broad scope of supplemental jurisdiction granted in other instances of federal jurisdiction in subsection (a), convinces us that Section 1367 was not intended to substantially expand diversity jurisdiction ÷ [and] [s]etting aside the holding in Zahn and Clark would have such an effect ÷ [o]ur review of the text, legislative history, and origins of Section 1367 leads us to hold that it preserves the prohibition against aggregation outlined in Zahn v. International Paper Co. and Clark v. Paul Gray, Inc., and thus maintains the traditional rules governing diversity of citizenship and the amount in controversy under 28 U.S.C. ? 1332")

Packard v. Provident National Bank, 994 F.2d 1039 (3d Cir. 1993) (Nygaard, J, w/ Sloviter and Cowen, JJ) (plaintiff's viewpoint used:"[i]n a diversity-based class action seeking primarily money damages, allowing the amount in controversy to be measured by the defendant's cost would eviscerate Snyder's holding that the claims of class members may bnot be aggregated ÷ [w]e will not permit plaintiffs to do indirectly that which they cannot do directly ÷ [m]oreover, we have stated that a plaintiff may not turn what is essentially a legal claim into an equitable one merely by demanding an injunction requiring the payment of money"), cert. denied sub nom. Upp v. Mellon Bank, N.A., 510 964 (1993)

Dorian v. Bridgestone/Firestone, Inc., 2000 WL 1570627 (E.D. Pa. Oct. 19, 2000) (Waldman, J) (no aggregation of punitive damages or attorneys' fees: "[i]n calculating the amount in controversy, the separate claims of each class member cannot be aggregated to meet the jurisdictional amount ÷ [while] [i]n determining the amount in controversy, attorney's fees and punitive damages must be distributed pro rata to all class members"; interest in disgorgement fund not "common and undivided": "Defendants ÷ contend that plaintiff's prayer for disgorgement creates a common and undivided interest of a type which may permit aggregation ÷ [but] [t]his contention has been persuasively rejected ÷ [t]here is no suggestion by plaintiff that he seeks other than a recovery by each class member of the profit realized on the sale of tires to that class member ÷ [and] [s]hould the class prevail on the legal claims asserted, each member would recover an amount which necessarily included any profit and this amount is already reflected in the court's calculation of the amount in controversy"; plaintiff's viewpoint used to value injunctive relief: "Defendants similarly contend that the cost of their compliance with the injunctive relief plaintiff seeks should be considered part of the amount in controversy ÷ [but] [t]hat proposition has been rejected in this circuit ÷ [as] 'in a diversity-based class action seeking primarily money damages, allowing the amount in controversy to be measured by the defendant's cost would eviscerate the rule that claims of class members may not be aggregated in order to meet the jurisdictional threshold")

Pohl v. NGK Metals Corp., Inc., 117 F. Supp. 2d 474 (E.D. Pa. 2000) (Bartle, J) (mass tort negligence action with plaintiffs alleging respiratory disease caused by defendant metal fabricator's beryllium dust, fumes, and particle matter; interest in fund created to pay for equitable relief not "common and undivided": "[i]n their core prayer for relief, plaintiffs request that the court ÷ 'create a trust fund, paid for by defendants, under Court supervision, to finance medical monitoring services, including, but not limited to, testing, preventative screening, care and treatment of conditions resulting from, or potentially resulting from, exposure to beryllium dust and particulates' ÷ [and] [t]he parties have stipulated [that] '[t]he total sum sought on behalf of all members of the putative class to establish a trust fund to finance medical monitoring for members of the putative class exceeds $75,000 ÷ [t]he cost to establish a trust fund to perform medical monitoring during the lifetime for each individual plaintiff would be less than $75,000' ÷ [d]efendants contend the size of the trust fund in the aggregate is the proper jurisdictional benchmark while plaintiffs maintains that we must look to the cost for each individual class member without aggregation ÷ [i]f plaintiffs are correct, we must remand this action"; the Supreme Court has held that "'[w]hen two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount' ÷[and] has continued to reiterate the distinction between cases which involve 'separate and distinct' claims and those in which the plaintiffs have a 'common and undivided interest'"; test for divisibility of claims: "had plaintiffs sought to establish individual trust funds for each class member or to obtain individual damage awards, the requisite amount in controversy clearly would not have been satisfied ÷ [and] we do not believe that the jurisdictional hurdles ÷ can be circumvented when plaintiffs seek the establishment of one common fund, rather than individual trust funds for or individual payments to each plaintiff ÷ [therefore,] [s]ince it is stipulated that none of the claims of the individual class members exceeds the sum of $75,000 exclusive of interest and costs, we will remand this action" ; interest in equitable relief not "common and undivided": here, "we are convinced that the claims here are separate and distinct ÷ each putative class member here has suffered a distinct harm from the defendants' alleged negligence ÷ [and] [w]hile the harm may have emanated from the same source ÷ any duty owed is owed to the plaintiffs individually ÷ [p]laintiffs here do not have a common and undivided interest in land or other property ÷ [and][t]he adjudication of the claim of each putative class member could be accomplished in a separate action without adversely affecting the right of any other class member in a 'single indivisible res' ÷ [i]f the plaintiffs had a common and undivided interest in an existing trust, it would be a different matter ÷ [h]owever, no trust exists or has ever existed ÷ [i]nstead, plaintiffs are requesting as a remedy that the court compel defendants to create and fund a trust to compensate plaintiffs for their individual injuries and to give each class member a common and undivided interest in it ÷the plaintiff class members have simply 'united[d] for convenience and economy in a single suit' ÷ [and] [c]onsequently, we cannot aggregate the value of all the claims of the class members in order to meet the amount in controversy required under 28 U.S.C. ? 1332(a)"; plaintiff's viewpoint used to value claim: "defendants are seeking to have us measure the requisite sum based on the total cost to the defendants rather than on the separate harm to each plaintiff ÷ [but] this we cannot do ÷ [since] the claims in this action are primarily ones for money damages, although cloaked in equitable parlance for the establishment of a trust fund ÷ [p]laintiffs, in essence, seek money from defendants to monitor and treat their medical conditions into the future ÷ [and] demanding an injunction requiring the payment of money" does not "turn what is essentially a legal claim into an equitable one")

Lauchheimer v. Gulf Oil, 6 F. Supp. 2d 339 (D.N.J. 1998) (Chesler, Mag.) (attorney fees not aggregable: "[d]efendant makes the argument that attorney's fees should be considered a unitary amount in controversy above the jurisdictional minimum provided for in 28 U.S.C. ? 1332 ÷ cit[ing] to a recent Northern District of Florida case [Howard v. Globe Life Ins. Co.] in which the court held that a claim for attorney's fees in a class action suit should be considered in aggregate to determine the amount in controversy ÷ [a]lthough Howard supports Defendant's argument that the amount in controversy requirement has been satisfied in the case at bar, this Court finds its reasoning unpersuasive ÷ [rather], this Court agrees with the line of cases holding that attorney's fees cannot be aggregated when determining the amount in controversy in a class action"; "Defendant's third and final argument is that this Court should attribute the attorney's fees that would be awarded under the New Jersey Consumer Fraud Act to the named Plaintiff and then extend supplemental jurisdiction, under 28 U.S.C. ? 1367, to the claims of class members who have failed to satisfy the jurisdictional amount in controversy ÷ [but] Defendant's argument fails in this instance primarily for the reasons outlined above ÷ [u]nder Defendant's theory, as long as the named Plaintiff satisfies the $75,000 amount in controversy requirement, federal supplemental jurisdiction would exist as to the remainder of the class members regardless of whether their claims met the jurisdictional minimum ÷ [t]he Court has already established, however, that attorney's fees, whether granted pursuant to a federal or state statute, and punitive damages cannot be aggregated so as to satisfy the jurisdictional minimum ÷ [and while] [i]t is clear ÷ that both attorney's fees and punitive damages may be added pro rata into calculating a named plaintiff's amount in controversy ÷ the named Plaintiff would need to meet the jurisdictional minimum of $75,000 through his own compensatory damages (trebled), his own share of attorney's fees, and his own share of punitive damages in order for this Court to have subject matter jurisdiction over the claims of any class member who did not individually meet the amount in controversy requirement ÷ [and] [i]t is mathematically impossible for the named Plaintiff to have an amount in controversy that exceeds $75,000"; punitive damages not aggregable: "Defendant ÷ argues that the total amount of potential punitive damages should be attributed to each member of the class ÷ cit[ing] to Tapscott v. MS Dealer Serv. Corp. ÷ and Allen v. R & H Oil & Gas Co., ÷ [and] [w]hile both Allen and Tapscott lend support to Defendant's argument that the amount in controversy requirement has been satisfied in the case at bar, this Court agrees with the line of cases which hold that punitive damages cannot be aggregated to satisfy the jurisdictional minimum ÷ [f]irst, as in the attorney's fee context discussed above, adopting this rule is proper because it is consistent with the policy of construing removal statutes narrowly ÷ [s]econd, the holdings of both Snyder and Zahn proscribe the aggregation of punitive damages unless a prior determination has been made that the underlying claim asserts a single title or right ÷ [c]ases that deal with such indivisible res are those involving an estate, a piece of real property, or an insurance policy ÷ [but] [t]he case at bar does not involve any such common or undivided interest because each individual class member could have filed suit for compensatory and punitive damages without affecting the rights of any other class member ÷ [and] [t]he putative class in the instant case did not sue to enforce common and undivided interests ÷ [t]o allow the Defendant to aggregate the potential award of punitive damages without establishing this prerequisite 'would eviscerate the holdings of Snyder and Zahn and would run counter to the strict construction of the amount-in-controversy requirement those cases mandate' ÷ [f]inally, it would be inconsistent for this Court to hold that aggregation of punitive damages is permitted to satisfy the amount in controversy requirement when the Third Circuit has previously held that attorney's fees may not be aggregated to meet the jurisdictional minimum ÷ [since] [i]t is reasonable to construe the Third Circuit's case law as not being restricted to merely attorney's fees 'but for the broader proposition that class members, whose 'claims fall short of the amount in controversy requirement cannot satisfy the requirement by aggregation of claims'' ÷ [t]his Court believes that this reasoning is sound with respect to punitive damages and concludes that the aggregation of the class members' potential punitive damages claims for the purpose of establishing diversity of citizenship jurisdiction is not permitted")

Pierson v. Source Perrier, S.A., 848 F. Supp. 1186 (E.D. Pa. 1994) (Giles, J) (interest in disgorgement fund "common and undivided": "Perrier does not argue that the total value of the relief available to each putative plaintiff could possibly amount to more than $50,000 ÷ [i]nstead, it argues that an exception to the 'non-aggregation' rule, which permits aggregation of claims 'when class members sue jointly to enforce a common title or right in which they have common and undivided interest' ÷ applies in the instant case ÷ [however,] [a] 'common and undivided interest', allowing plaintiffs to aggregate their claims, exists only when plaintiffs' claims 'derive from rights which they hold in group status' ÷ [and] [e]ven if plaintiffs' claims present common questions of law and fact, as they must if they are to be certified as a class, it does not necessarily imply that their rights are held in group status ÷ [a]ggregation is not allowed where each class member claims an individual injury, such as a unique amount, that in theory must be proved separately ÷ [but] Perrier argues that plaintiffs' request for disgorgement of profits and punitive damages creates a 'common and undivided interest' in the instant case' ÷ [t]he court disagrees ÷ [t]he proper focus should not be upon the type of relief that plaintiffs seek, but rather upon the nature and value of the rights that they have asserted ÷ [and] plaintiffs' claims cannot be aggregated simply because they frame their prayer for damages as equitable, rather than legal, relief ÷ Plaintiffs seek disgorgement of profits as a means of obtaining money damages [and] [t]o allow the amount in controversy to be measured by defendant's cost simply because the prayer for relief is partially phrased in terms of an equitable remedy 'would eviscerate the rule that the claims of class members may not be aggregated in order to meet the jurisdictional threshold'"; aggregation of punitives a question of state law: "the request for punitive damages cannot be aggregated ÷ [as] Pennsylvania law requires that the amount of punitive damages awarded to each plaintiff must 'be reasonably related to the amount of actual damages suffered' ÷ [and] [t]hus, each member of the putative class holds a separate and distinct interest in a punitive damages award"; plaintiff's viewpoint used to value injunctive relief: "the longstanding rule in this circuit is that, for purposes of determining the amount in controversy, the value of equitable relief must be determined from the viewpoint of the plaintiff rather than the defendant, [so] we reject Perrier's argument that the cost to them of complying with the injunction should be considered ÷ [and] the rule in this circuit has long been that 'in a suit for an injunction, the amount in controversy is determined by the value of the object to be gained by the plaintiff' ÷ [t]he ninth circuit has considered an injunctive claim similar to the one made by plaintiffs in the instant case ÷ [i]n Snow v. Ford Motor Co., [it] found that 'the right asserted by plaintiffs is the right of individual future consumers to be protected from Ford's allegedly deceptive advertising which is said to injure them in the amount of $11.00 each' ÷ [w]ere it to decide otherwise, the court proclaimed, 'All that plaintiffs would need to do to avoid the non-aggregation rule of Snyder and Zahn would be to pray for an injunction' ÷ [s]imilarly here, the object sought by each putative plaintiff is to be free from deceptive advertising ÷ [and] [t]o allow the amount in controversy to be measured by the cost to the defendant of complying with requested injunctive relief would be the same as allowing aggregation of the plaintiff's claims ÷ [b]ecause we have already determined that the claims in this case are not common and undivided, aggregation will not be allowed, and the value of the requested injunctive relief must be calculated from the point of view of each member of the putative class")

4. Fourth Circuit

No "Common and Undivided Interest": Williams; McCoy

Punitive Damages/Attorneys' Fees Not Aggregable: Mattingly

Plaintiff's Viewpoint Required in Class Action: Mattingly; but see McCoy, Microsoft

Supplemental Jurisdiction under ? 1367 Available: Williams; Chiartas

In re Microsoft Corp. Antitrust Litigation, 127 F.Supp.2d 702 (D. Md. 2001) (Motz, J) (injunctive relief not proratable: "Thirty?eight of the actions pending before me were originally filed in state court and removed to federal court by Microsoft on the basis of the parties' diversity of citizenship ÷ Plaintiffs have moved to remand those actions, contending that each of them claims less than $75,000 and that ÷ their individual claims cannot be aggregated to determine whether the $75,000 jurisdictional amount has been satisfied ÷ [so] [t]he primary issues presented by the motion to remand the cases removed on the basis of diversity are whether a request for injunctive relief or a request for disgorgement of profits is sufficient to meet the jurisdictional amount in controversy"; seventh circuit "viewpoint" adopted: "[i]n the final analysis, 'in actions seeking declaratory or injunctive relief, ... the amount in controversy is measured by the value of the object in litigation' ÷ [and] [i]n my view, common sense compels the conclusion that 'the value of the object' of the requested injunctive relief in these cases, which could not be effected without the expenditure of millions of dollars if granted even to one plaintiff, exceeds $75,000 ÷ [t]hat is also the conclusion dictated by application of the either viewpoint rule, as refined by the Seventh Circuit, and I will apply that rule here to uphold jurisdiction in the cases in which injunctive relief is claimed")

Williams v. Potomac Electric Power Co., 115 F. Supp. 2d 561 (D. Md. 2000) (Messitte, J) (riverfront property owners sued utility for damage caused by oil pipeline leak; defendant removed, and plaintiffs moved for remand; interest in "right of use and enjoyment" not "common and undivided": "[f]aced with Zahn ÷ which held that separate and distinct claims by class members cannot be aggregated for jurisdictional purposes, PEPCO argues that aggregation is appropriate in the present case because certain claims of the proposed class are not separate and distinct but are held in common and based on a 'single, unitary, undivided right' ÷ [s]pecifically, says PEPCO, Plaintiffs invoke two rights in which all members of the class would have a common and undivided interest-first, the claim for damages to shorelines and, second, the right to enjoy and use the Patuxent River ÷ however ÷ under Maryland law any claim that an individual proprietor of land bordering on navigable waters may have regarding his use and enjoyment of the waters and to have them remain free of unreasonable pollution is an individual right ÷ [m]oreover, it seems virtually certain that the riparian owners, to recover such damages caused by the pollution, would have to allege special injury different from that of the public generally ÷ [and] [t]he mere fact that several riparian owners may have sustained damages of a similar nature would not ipso facto convert the case into one involving a 'common undivided interest' for purposes of amount in controversy jurisdiction"; punitive damages not aggregable: "PEPCO's argument that punitive damages should be aggregated to satisfy the amount in controversy requirement is no[t] ÷ persuasive ÷ [their] suggestion is that a punitive damage award would arise from the common interest in the environment and from social welfare concerns ÷ [and] [w]hile there is some authority to this effect ÷ there is also contrary authority which characterizes punitive damages claims as "separate and distinct," making aggregation impermissible ÷ [w]ithout delving into that debate, however, some practical considerations remain ÷ [viz.,] [e]ven if the claim for punitive damages were viewed as common and undivided, there would still be no basis other than sheer speculation for determining what that amount might be ÷ [and] as PEPCO itself has argued in companion cases to the present litigation, there is considerable doubt whether punitive damages are even recoverable with regard to most if not all of the state law claims in the case"; Zahn overruled by 28 U.S.C. ? 1367: "the final proposition submitted by PEPCO ÷[is that] 28 U.S.C. ? 1367, overruled the Zahn decision at least insofar as Zahn prohibited a federal court from exercising ancillary jurisdiction over the state law claims of individual class members who do not meet the amount in controversy requirement ÷ [in deciding] this [question], the Court is not obliged to write on an entirely clean state ÷ [since although] the Supreme Court and the Fourth Circuit have yet to decide the matter, the Fifth and Seventh Circuits have ÷ concluded that Section 1367 effectively did overrule Zahn ÷ [and] [t]his Court stands with the Fifth and Seventh Circuits ÷ [therefore the court] holds that it has supplemental jurisdiction over all other prospective members of Plaintiffs' class whether or not each individual member meets the minimum amount in controversy")

Chiartas v. BMW, 106 F. Supp. 2d 872, 875 (S.D.W. Va. 2000) (Haden, J) (Supplemental Jurisdiction under ? 1367 Available: "? 1367 abrogates Zahn to the extent the latter is inconsistent with the statute", such that "[t]he unambiguous terms of ? 1367 ÷ permit exercise of supplemental jurisdiction over the claims fo class members who do not meet the jurisdictional minimum, as long as one fellow class member satisfies the amount in controversy requirement")

Mattingly v. Hughes Electronics Corp., 107 F. Supp. 2d 694 (D. Md. 2000) (Chasanow, J) (no aggregation of punitive damages: "members' claims for actual damages in this action are separate and distinct demands arising from the imposition of late fees ranging from $2.81 to $5.00 per billing cycle ÷ [i]t is clear that no individual satisfies the amount in controversy requirement with regard to actual damages, and Defendant correctly recognizes that the claims for actual damages cannot be aggregated to meet the jurisdictional amount ÷ [but] Defendants argue that each class member has 'an undivided claim for the full amount of the punitive damages because the purposes of punitive damages is not to vindicate a particular individual's rights or to compensate an individual plaintiff, but to protect society by punishing and deterring wrongful conduct' ÷ [t]herefore, Defendants contend, the punitive damages claims of the class plaintiffs should be aggregated for jurisdictional purposes ÷ [however,][a] similar argument was considered and rejected by Judge Davis of this court ÷ [quoting Gilman v. BHC Securities] '[p]unitive damages asserted on behalf of a class may not be aggregated for jurisdictional purposes where, as here, the underlying cause of action asserted on behalf of the class is not based upon a title or right in which the plaintiffs share, and as to which they claim, a common interest ÷ [t]o hold otherwise, and aggregate punitive damages even when the actual damages could not be aggregated would eviscerate the holding of Snyder and Zahn and would run counter to the strict construction of the amount-in-controversy requirement those cases mandate ÷ [h]ere, each class member's claim for punitive damages arises out of conduct on the part of Defendants that allegedly injured each class member separately and individually ÷ [t]he claim for punitive damages, like the claim for compensatory damages, was brought together in a class action only for the convenience of the plaintiffs, and not to vindicate a single undivided right"; Abbott Labs rejected:"[m]ost courts addressing the issue have concluded that potential attorneys' fees in a class action should be attributed pro rata to each class member when determining whether the amount in controversy requirement is met ÷ Defendants, however, ÷ contend that potential attorneys' fees should be attributed to the named plaintiff only ÷ [however,] [t]he Abbott court recognized the general rule that fees must be attributed on a pro rata basis ÷ but attributed all potential attorneys' fees to the named plaintiffs because the relevant Louisiana statute specifically provided for an award of fees to the representative parties' ÷ [i]n this case, the statute under which plaintiffs are claiming attorneys' fees ÷ does not provide that the fees should be awarded exclusively to the named plaintiffs in a class action ÷ [and] [t]he holding of Abbott, therefore, is inapposite, and the rule against aggregation applies to the request for attorneys' fees"; interest in injunctive relief not "common and undivided": "Defendants next argue that the value of the injunctive relief sought by Plaintiffs 'is far greater that $75,000' and should not be pro rated among the class because the class members have a common, undivided interest in the injunctive relief sought ÷ [t]he court, however, must look to the individual pro rata value of the injunction to determine whether there is jurisdiction"; no aggregation of civil penalties: "[f]nally, Defendants argue that the amount in controversy requirement is satisfied because plaintiffs are seeking civil penalties in excess of $75,000 under the Maryland Consumer Protection Act that are payable as an aggregated sum to the State ÷ [but] [t]his argument fails for two reasons ÷ [f]irst, and foremost, is that plaintiffs are not authorized under the Maryland Consumer Protection Act to seek civil penalties on behalf of the State of Maryland ÷ [a]lternatively, even assuming Plaintiffs could pursue civil penalties, the non-aggregation rule of Snyder and Zahn would apply and preclude Plaintiffs from satisfying the jurisdictional amount")

McCoy v. Erie Ins. Co., __ F. Supp. 2d __, 2001 WL 689542 (S.D. W. Va. June 18, 2001) (Haden, J) (no "common and undivided interest" in alleged damages: defendant "Erie urges the Court to find the unjust enrichment cause of action and disgorgement request form an 'integrated claim' with the r