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 required single title or right in a common and undivided interest", but "class members' damage claims, whether for unjust enrichment, disgorgement, or otherwise, may not be aggregated", because "[t]he class members are asserting rights arising from their individual insurance policies and stand to recover only the amount of excessive premiums each paid under ÷ her own policy"; either viewpoint rule utilized in putative class action: based on defendant employee's affidavit "Erie has established by a preponderance of the evidence that the pecuniary result it would suffer as a result of a judgment in McCoy's favor" on the injunctive and declaratory relief "would well exceed the jurisdictional minimum")

5. Fifth Circuit

No "Common and Undivided Interest": Dixon; but see: Roberson

Punitive Damages/Attorneys' Fees Not Aggregable: H&D; Ard; Lindsey; Ryder; Jones; Johnson;

Bryceland; but see: Abbott Labs

Plaintiff's Viewpoint Required in Class Action: Jones; Dixon

Supplemental Jurisdiction under ? 1367 Available: Abbott Labs

H&D Tire and Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326 (5th Cir. 2000) (Gibson, J w/ Poltz & Higginbotham, JJ) (punitive damages not aggregable; aggregation of punitive damages a question of state law: on the question of "whether the punitive damages of the class can be aggregated and attributed to each plaintiff to meet the amount in controversy requirement ÷ our earlier decisions seem to conflict ÷ [i]n Lindsey v. Alabama Telephone Co., we held that the district court did not have subject matter jurisdiction over a removed class action where the plaintiff requested $2000 in compensatory damages and $1 million in exemplary damages on behalf of the class ÷ [t]he complaint did not allege the number of class members, and thus we could not mathematically ascertain the amount in controversy for each member ÷ [and] [i]mplicit in this reasoning is that a claim for punitive damages must be allocated pro rata among class members to determine whether the jurisdictional requirement is met ÷ [since] [o]therwise, the number of members would have been irrelevant, the district court would have had jurisdiction, and removal would have been appropriate ÷ [w]e later addressed a nearly identical issue in a case brought jointly by 512 plaintiffs for damages related to an explosion ÷ Allen v. R&H Oil & Gas Co. ÷ [and] held that the full amount of alleged punitive damages must be counted against each plaintiff to determine the amount in controversy because punitive damages, under Mississippi law, are fundamentally collective ÷ Lindsey's reasoning did not rely on a characterization of punitive damages under Alabama law, but was instead based on the principle that 'the claims of several plaintiffs, suing as members of a class, cannot be aggregated for the purpose of satisfying the jurisdictional predicate' ÷ [a]fter Allen was decided, we followed Lindsey and held that punitive damages should not be aggregated and attributed to each plaintiff for purposes of determining the amount in controversy ÷ [in] Ard v. Transcontinental Gas Pipe Line Corp. ÷ [w]hen panel opinions appear to conflict, we are bound to follow the earlier opinion ÷ [and] [b]ecause 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"; aggregation of attorney fees a question of state law: "[w]hen a statutory cause of action entitles a party to receive attorneys' fees, the amount in controversy includes those fees ÷ [and] [i]f the statute awards attorneys' fees to the named plaintiffs in a class action, the fees are attributed solely to the class representatives ÷ [h]ere, the plaintiffs sought attorneys' fees under the Connecticut Unfair Trade Practices Act ÷ [and] [t]he use of the word 'plaintiff' in this statute does not dictate that any fee award must be attributed solely to the representative party in a class action ÷ [t]he fee award could also be attributed to the plaintiff class as a whole and therefore allocated pro rata among its members for purposes of determining the amount in controversy ÷ [b]ecause the Connecticut statute does not specifically provide that attorneys' fees are awarded to the class representatives, we decline to attribute the attorneys' fees solely to the named plaintiffs to determine whether the amount in controversy is sufficient"), reh'g and reh'g en banc denied, 250 F.3d 302 (5th Cir. 2001).

Ard v. Transcontinental Gas Pipe Line Corp., 138 F.3d 596 (5th Cir. 1998) (Davis, J, w/ Jones & Dennis, JJ) (no aggregation of punitive damages; holding in Allen limited: "[a]lthough the Supreme Court has never considered whether punitive damage claims from separate plaintiffs may be aggregated for determinations of jurisdictional amount, it has considered whether claims in general can be aggregated ÷ [and] [t]he circuits have not taken a consistent position on this question of whether the punitive damages claimed by multiple plaintiffs can be aggregated, and the entire amount allocated to each plaintiff, for the purpose of determining jurisdictional amount ÷ [and] [t]wo panels in our own circuit took different approaches to deciding whether to aggregate punitive damages and reached different results ÷ [i]n Lindsey ÷ [i]n holding that the plaintiffs had failed to allege jurisdictional amount, the panel stated 'significantly, the complaint nowhere alleges the number of persons in the class, an allegation that would have permitted the court to ascertain what dollar amount represents the amount in controversy for each member of the class' ÷ [and] concluded that the defendant could not show that the class was small enough to result in a division of the damages that would result in each plaintiff meeting the jurisdictional amount, and that the district court therefore had no jurisdiction over the claim ÷ appl[ying] Snyder's reasoning that compensatory damage claims cannot be aggregated for jurisdictional purposes to the context of punitive damage claims ÷ [but] [i]n Allen v. R & H Oil & Gas ÷, this court held that the nature of punitive damages under Mississippi law required that the punitive damage claim of all plaintiffs should be aggregated, and the entire amount allocated to each plaintiff, to determine the jurisdictional amount ÷ emphasiz[ing], however, that its decision was driven by the peculiar nature of punitive damages under Mississippi state law ÷ [i]t is therefore clear to us that Allen departs from Lindsey solely because of the peculiar nature of punitive damages under Mississippi law, and does not purport to establish a precedent for aggregation of punitive damage claims asserted under federal law or the law of any other state ÷ [i]n summary, Lindsey holds that ordinarily the punitive damage claims of multiple plaintiffs may not be aggregated for purposes of determining jurisdictional amount ÷ [and while] [i]t is unclear to us what Mississippi law regarding punitive damages drove the Allen panel to depart from Lindsey's rule, but we find no principle in Louisiana law regarding the nature of punitive damages that permits us to depart from Lindsey"), reh'g and reh'g en banc denied, 145 F.3d 361 (5th Cir. 1998).

In re Abbott Laboratories, 51 F.3d 524 (5th Cir. 1995) (Higginbotham, J w/ Smith & Parker, JJ) (combination of two La. statutes gave named plaintiffs a "common and undivided interest" in attorneys' fees: "[t]he distribution of attorney's fees centers on two Louisiana statutes ÷ [t]he first, Article 595 of the Louisiana Code of Civil Procedure, provides: '[t]he court may allow the representative parties their reasonable expenses of litigation, including attorney's fees, when as a result of the class action a fund is made available, or a recovery or compromise is had which is beneficial, to the class ÷ [and] [t]he second ÷ is Section 51:137 of the Louisiana Revised Statutes, which provides: '[a]ny person who is injured in his business or property by any person by reason of any act or thing forbidden by this Part may sue in any court of competent jurisdiction and shall recover threefold the damages sustained by him, the cost of suit, and a reasonable attorney's fee'"-thus all attorneys' fees are attributed to the named plaintiffs; and while "plaintiffs argue that construing Article 595 to attribute the fees to the named plaintiffs-rather than to distribute them among all the plaintiffs-renders the statute unconstitutional ÷ [as] the federal courts have generally held that Zahn forbids attributing the fees of class members to class representatives ÷ [t]hat a state chooses a set of rules that result in an award in excess of $50,000 frustrates no policy of Zahn ÷ [and] under the law of Louisiana the class representatives were entitled to fees ÷ [t]heir rights of recovery were not created by a judge's summing the discrete rights of class members"; Zahn overruled by 28 U.S.C. ?1367: "[w]e turn now to the question of supplemental jurisdiction over the class members, confronting at its threshold Zahn 's current vitality ÷ [s]upplemental jurisdiction over the unnamed plaintiffs' claims has been an open question since Congress passed the Judicial Improvements Act of 1990 ÷ [and] [d]efendants argue that Congress changed the jurisdictional landscape in 1990 by enacting ? 1367 ÷ [it] grants district courts supplemental jurisdiction over related claims generally, and ? 1367(b) carves exceptions ÷ [s]ignificantly, class actions are not among the exceptions ÷ [and] [s]ome commentators have interpreted this silence to mean that Congress overruled Zahn and granted supplemental jurisdiction over the claims of class members who individually do not demand the necessary amount in controversy"; "[w]e cannot search legislative history for congressional intent unless we find the statute unclear or ambiguous ÷ [and] [h]ere, it is neither ÷ [since] [t]he statute's first section vests federal courts with the power to hear supplemental claims generally, subject to limited exceptions set forth in the statute's second section ÷ [c]lass actions are not among the enumerated exceptions ÷ [and while] [o]mitting the class action from the exception may have been a clerical error÷ the statute is the sole repository of congressional intent where the statute is clear and does not demand an absurd result"), Reh'g and suggestion for reh'g en banc denied, 65 F.3d 33 (5th Cir. 1995), remanded, 982 F.Supp. 1211 (M.D.La. 1997), aff'd in part; question certified, Free v. Abbott Laboratories, Inc., 164 F.3d 270 (5th Cir. 1999), certified question denied, 739 So. 2d 216 (La. 1999), aff'd, 176 F.3d 298 (5th Cir. 1999), cert. granted, 528 U.S. 1018 (1999), aff'd, 529 U.S. 333 (2000) (per curiam).

Lindsey v. Alabama Telephone Co., 576 F.2d 593 (5th Cir. 1978) (Tuttle, J w/ Gee and Fay, JJ) (no aggregation of punitive damages: plaintiffs alleged compensatory and punitive damages; "[o]ne of the jurisdictional requirements in any civil action in which the district court's original jurisdiction is invoked under the diversity statute is that 'the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs' ÷ [and] [o]f course, the claims of several plaintiffs, suing as members of a class, cannot be aggregated for the purpose of satisfying this jurisdictional predicate ÷ [here,] [w]e construe the complaint to claim: 1) $2,000 compensatory damages for the named plaintiff; 2) compensatory damages for "other class members" of the same categories as claimed by the plaintiff on his own behalf; and 3) $1,000,000 exemplary damages on behalf of the class ÷ [so that] [t]he demand for judgment, totalling $1,002,000, represents the total claim for the benefit of the plaintiff and the class to cover his compensatory damages, as well as his and the class' exemplary damages ÷ [but] the complaint nowhere alleges the number of persons in the class, an allegation that would have permitted the court to ascertain what dollar amount represents the 'amount in controversy for each member of the class")

Ryder v. Gilbert Southern Corp., 2000 WL 1499274 (E.D. La. Sept. 21, 2000) (Sear, J) ("defendant makes two arguments in support of federal jurisdiction ÷ [(1)] that in class action suits, jurisdictional amount is determined by the total sum demanded by the plaintiffs on behalf of all class members ÷ [(2)], that the claims of the class representatives, once swelled by attorney fees, exceed $75,000, creating jurisdiction pursuant to In re Abbott Laboratories"; interest in class fund not "common and undivided": "[i]n class actions, the compensatory claims of each plaintiff may not be aggregated in order to meet the requisite jurisdictional amount in controversy"; Abbott Labs distinguished: while Abbott held that "[t]he supplemental jurisdictional statute, 28 U.S.C. ? 1367 ÷ altered the Zahn rule under certain circumstances ÷ [d]efendant relies on ÷ [it] for the principle that attorneys fees and costs are attributable to the class representatives under La.Code Civ.P art. 595"; "[t]he Fifth Circuit said in In re Abbott Laboratories that attorneys' fees may properly be added to the amount of damages that the named plaintiff may recover to meet the required amount in controversy for federal jurisdiction ÷ [h]owever, as I and other judges in this district have noted, Abbott involved not only La.C.C.P. art. 595, but also a claim pursuant to La.R.S. 51:137" aggregation of attorney fees a question of state law: "in Abbott Labs, "the Fifth Circuit considered La.R.S. 51:137 'key' in its decision to include attorneys' fees when determining the jurisdictional amount ÷ mean[ing] that the addition of attorneys' fees to the amount in controversy in a class action is not appropriate unless plaintiffs' claims are based on a specific statute-independent of La.C.C.P. art. 595-that provides for recovery of attorneys' fees ÷ [and] [d]efendant's attempts to persuade me that this is not the proper interpretation of Abbott are unavailing")

Roberson v. Jim Walter Homes, Inc., 2000 WL 798826 (N.D. Miss. June 2, 2000) (Davidson, J) (interest in real estate "common and undivided": "[i]n suits involving multiple plaintiffs, each plaintiff's claim must individually meet the jurisdictional requirement; the law does not generally permit aggregation of damages ÷ [a]ggregation of damages is permissible, however, where 'two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest' ÷ [and] [s]uch appears to be the case in the instant cause of action as both Plaintiffs are seeking to enforce their joint interest in the subject contract ÷ [b]ased on the pleadings before the court, it appears Plaintiffs' combined out of pocket expense is $37,260.05, the total purchase price paid for the home")

Jones v. The Valvoline Co., 1999 WL 319215 (E.D. La. May 20, 1999) (Barbier, J) (Abbott distinguished: "[d]efendants first argue that the amount in controversy is met based on the aggregation of attorney fees ÷ [h]owever, under the holding in [Abbott Labs], only if the class claims are brought under a statute that contains a provision for the award of attorney's fees as an element of damages is the entire class fee award imputed to the class representative(s)"; "defendant's viewpoint" unavailable: "[d]efendants also argue that the value of the injunctive relief sought by plaintiffs meets the required amount in controversy ÷ contend[ing] that plaintiffs are seeking to prevent defendants from doing any sort of advertising which would result in a pecuniary loss that exceeds the federal jurisdictional amount ÷ [but] under the plaintiff's viewpoint rule, the amount in controversy is measured by the benefit to the plaintiff as opposed to the cost to the defendant")

Johnson v. Cytec Industries, Inc., 1999 WL 212753 (E.D. La. Apr. 13, 1999) (Vance, J) (Zahn overruled by 28 U.S.C. ? 1637: "[to remove] class actions such as this, the defendant's burden is limited to the named plaintiffs ÷ [such that if] the defendant shows that the class representatives meet the required amount in controversy, the court may exercise supplemental jurisdiction over the other class members"; Abbott Labs distinguished: "[a]s a general rule, attorneys' fees are distributed to both named and unnamed class members on a pro rata basis ÷ [h]owever, the Fifth Circuit established a different rule for class actions in Louisiana ÷ [holding in Abbott] that the court must attribute the attorneys fees only to the named parties, and not pro rata to all members of the class"; Abbott "based its decision on two Louisiana statutes", La. C. Civ. Pro. Art. 595 and La. R.S. 51:137; Art. 595 "states that the court may allow "representative parties" of class actions to recover attorneys' fees ÷ [and Abbott therefore] noted that Louisiana law therefore entitles class representatives, and not all class members, to attorneys' fees ÷ [while] [t]he second statute relied upon in Abbott was a provision of Louisiana antitrust law-La. R.S. 51:137-that provides injured parties with an independent right to recover attorneys' fees ÷ [such that] [d]istrict courts have held that Abbott does not apply to class actions brought pursuant to La. C.C.P. Art. 595 when another statute such as La. R.S. 51:137 does not mandate the award of attorneys' fees over and above an award of compensatory damages ÷ [i.e.,] Article 595 does not mandate the award of fees, and it does not establish attorneys' fees as a legal element of damages")

Dixon v. Ford Motor Credit Co., 1998 WL 440304 (E.D. La. July 31, 1998) (Sear, J) (interest in disgorgement fund not "common and undivided": "even assuming plaintiffs properly pursue disgorgement and/or unjust enrichment claims, I find no authority for aggregating such claims to meet the jurisdictional amount ÷ [t]he cases cited by plaintiffs in support of aggregation are inapposite, as they deal with aggregation of punitive damage claims where such claims may be found to represent a single collective right in which the putative class has a common and undivided interest ÷ [c]ontrary to plaintiffs' argument, neither disgorgement nor unjust enrichment claims are punitive in nature ÷ [r]ather, they are remedial in the sense that they are designed to compensate and make whole the victims of defendants' wrongdoing ÷ [t]o the extent possible, disgorged funds should be apportioned among the individual claimants rather than being treated as a single collective right in which putative class members have an undivided interest"; "Plaintifffs do not argue that it is impossible to apportion the disgorged profits among the individual plaintiffs according to the amount by which they were overcharged for credit life insurance ÷ [so] Plaintiffs' aggregation argument fails ÷ [n]either do plaintiffs make any attempt to demonstrate that each putative class member's claim for disgorgement/unjust enrichment exceeds the jurisdictional amount ÷ [and] [a]ccordingly, I find, that plaintiffs have failed to establish the amount in controversy based on their claims for disgorgement and/or unjust enrichment"; interest in injunctive relief not "common and undivided": "Plaintiffs also argue that the jurisdictional amount is satisfied based on the value of the injunctive relief they seek ÷ [a]ccording to plaintiffs, their claim for declaratory and injunctive relief may fairly be read to include the costs of notifying all interested persons of defendants' violation of the LMVSFA and remedying the violation by rewriting the retail installment contracts, the cost of which may be assumed to exceed the jurisdictional amount ÷ [and] submit an affidavit in which two accountants opine that the cost of providing notice to the class would exceed $75,000"; plaintiff's viewpoint used to value claim: "[t]he amount in controversy, in an action for declaratory or injunctive relief, is the value of the right to be protected or the extent of the injury to be prevented ÷ [while] Plaintiffs seek to measure the value of the declaratory and injunctive relief solely by what it will cost the defendants"; ÷ [h]owever, the Fifth Circuit follows a plaintiff's viewpoint rule, that is, the amount in controversy is measured by the benefit to the plaintiff as opposed to the cost to the defendant ÷ Plaintiff cites one of my rulings in In re Ford Motor Company Bronco II Product Liability Litigation ÷ [but] [t]hat ruling is distinguishable, however, because there I applied Eighth Circuit law, which recognizes a mixed viewpoint standard, and I further limited my holding to the situation where a defendant removes a case to federal court ÷ [w]here, as here, the plaintiffs invoke the court's jurisdiction over a putative class action, I am persuaded that the Fifth Circuit's approach is to measure the relief sought from the plaintiffs' viewpoint"), reconsideration denied, 1998 WL 485694 (E.D. La. Aug. 14, 1998)

Bryceland v. AT&T Corp., 122 F. Supp. 2d 703 (N.D. Tex. 2000) (Kaplan, Mag.) (punitives not aggregable; aggregation of punitives a question of state law: while "[i]t is well-settled that 'separate and distinct claims of two or more plaintiffs cannot be aggregated in order to satisfy the jurisdictional amount requirement' ÷ the Fifth Circuit has held [in Allen v. R & H Oil & Gas Co.]that damages can be aggregated 'where two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest' ÷ [t]he issue in Allen was whether joint claims for punitive damages under Mississippi law satisfied this test ÷ not[ing] that Mississippi followed the almost unanimous rule that 'punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct' ÷ [the court held that] punitive damages are 'fundamentally collective' under Mississippi law ÷ [and] allowed the 512 plaintiffs in that case to aggregate their punitive damage claims in order to satisfy the jurisdictional amount in controversy requirement"; in a later case, however, the Fifth Circuit found "no analogous principle in Louisiana law regarding the nature of punitive damages ÷ [here], AT&T relies on Allen as authority for aggregating punitive damages to meet the amount in controversy requirement ÷ [but while] [t]he Allen court emphasized that punitive damages in Mississippi 'are never awarded to benefit the injured party as a matter of right, but rather to punish and to compel the wrongdoer to have due and proper regard for the rights of the public' ÷ punitive damages have a compensatory element under Louisiana law ÷ [t]hus, the Court must look to the purpose of punitive damages under Texas law to determine whether it gives rise to the same collective right found in Allen or merely creates an individual right ÷ [t]he critical inquiry under Allen is whether punitive damages under state law are designed to punish the wrongdoer rather than benefit the injured party ÷ [i]n Texas, it is clear that exemplary damages are awarded as a penalty or by way of punishment ÷ [and] at least four other federal district courts have found that the Texas law governing punitive damages meets the Allen test ÷ However, the Fifth Circuit has recently spoken again on this issue ÷ [honding] that it was bound to follow [Lindsey v. Alabama Telephone Co.] as the 'earliest, and thus controlling, decision in this circuit' ÷ [and] [t]hus, punitive damages cannot be aggregated under current Fifth Circuit law")

6. Sixth Circuit

No "Common and Undivided Interest": Farkas; Crosby; Mcintire; but see: Knauer; Cardizem

Punitive Damages/Attorneys' Fees Not Aggregable: Farkas; Knauer; Nelson; Crosby

Plaintiff's Viewpoint Required in Class Action: Nelson; Cardizem; Crosby; Mcintire

Supplemental Jurisdiction under ? 1367 Not Available: Knauer; Crosby

Farkas v. Bridgestone/Firestone, Inc., 113 F. Supp. 2d 1107 (W.D. Ky. 2000) (Heyburn, J) (interest in injunctive relief not "common and undivided": "aggregation ÷ analysis begins with the default rule preventing aggregation ÷ [i.e.,] that 'separate and distinct claims may not be aggregated, [but] aggregation is permissible when two or more plaintiffs unite to enforce a single title or right in which they have an undivided interest' ÷ [here,] [t]he gravamen of Plaintiffs' complaint is Firestone's alleged threat to discontinue reimbursement to customers who replace their defective tires with competitors' brands ÷ [and] Plaintiffs would possess no common and unified interest in th[is] relief ÷ [f]irst, Firestone's obligation would vary directly with the number of class members notified and reimbursed ÷ [s]econd, class members would each stand to collect the same amount of money regardless of the number of their cohorts ÷ [i]f one plaintiff does not collect his share, the shares of the remaining plaintiffs are not increased, thus there is no 'common and unified whole'"; "[i]n most cases, it is impossible to draw a practical distinction between injunctive relief and a class-wide finding of liability for money damages ÷ [a]t least in class actions involving numerous, small, uniform claims, money damages flow essentially as a matter of course from a finding of liability ÷[e.g.], had plaintiffs here sought and received a class-wide finding that their fuel pumps are defective and asked for money damages instead of replacement, each would almost assuredly receive substantially the same fixed cost of replacing the pump ÷ [t]hat money payment clearly could not be aggregated, and this court cannot conclude that an in-kind equivalent should be treated differently"; attorneys' fees not aggregable: "Firestone urges this Court to adopt the Fifth Circuit's holding that courts should aggregate attorneys fees in proposed class actions ÷ [t]he Kentucky statute at issue, however, differs from the Louisiana statute in Abbott Laboratories because it does not attribute attorneys fees specifically to the class representatives ÷ [and] [i]n the view of this Court, that difference is a significant one ÷ [t]hese statutory differences have led several other courts to distinguish Abbott Laboratories in a similar way ÷ [and] [a]llowing aggregated attorneys fees to determine the amount in controversy seems quite contrary to the clear mandate of Sellers and Snyder, unless the plaintiffs have common and undivided interest in that relief ÷ [o]therwise a defendant could properly remove to federal court almost any class action with diverse parties ÷ effectively render[ing] moot much of the current law on aggregation")

McIntire v. Ford Motor Co., 142 F. Supp. 2d 911 (S.D. Ohio 2001) (Rice, J) (plaintiff's viewpoint required: court is bound by rule in (non-class action), Goldsmith v. Sutherland, that amount in controversy must be determined from the plaintiff's perspective; no common and undivided interest: even if court was free to apply the defendant's viewpoint rule (which it was not), "Ford would have had the burden of establishing, by the preponderance of the evidence, that the cost of the injunction, prorated among the members of the putative class, either alone or when combined with other aspects of the Plaintiffs' prayer for relief, exceeded $75,000"; "[i]f Plaintiffs had sued for compensatory damages, rather than only injunctive relief, each Plaintiff would have been required to prove the amount of damages that ÷ she incurred due to Ford's alleged misrepresentation that ÷ she was required to submit to Ford's informal dispute resolution process"; "[s]uch claims would not be common and undivided and ÷ Plaintiffs would not have been able to aggregate their claims"; "[t]hus, to allow them to aggregate their claims when only injunctive relief has been sought, due to the injunctive nature of the relief, would allow Plaintiffs to circumvent the rule of Snyder and Zahn")

Knauer v. Ohio State Life Ins. Co., 102 F. Supp. 2d 443 (N.D. Ohio 2000) (Katz, J) (interest in contract claims not "common and undivided: "[i]n this case, each Plaintiff has asked for relief including the rescission of an insurance policy with a face value of $100,000 ÷ [and [w]here a plaintiff's complaint includes a claim for rescission of an insurance policy, the face value of the policy is considered in determining whether the jurisdictional amount is met under ? 1332 ÷ [t]herefore, more than $75,000 is in dispute in this case"; Zahn not overruled by 28 U.S.C. ? 1367: "[t]he Circuits are split as to whether the supplemental jurisdiction statute, 28 U.S.C. ? 1367, permits a Court to exercise pendent party jurisdiction in diversity class actions where at least one class member satisfies the amount in controversy requirement ÷ [because while] the plain language of the supplemental jurisdiction statute permits pendent party jurisdiction over the claims of class members who do not satisfy the amount in controversy requirement in class actions where federal jurisdiction is predicated on diversity of citizenship ÷ [i]t is clear from the legislative history of the supplemental jurisdiction statute ÷ that Congress did not intend to allow pendent party jurisdiction in any diversity cases, including class actions ÷[and] [t]he statute's failure to include class actions among those types of cases in which there is no pendent party jurisdiction appears to be a clerical error"; "[i]n this unusual situation-where the plain language of the statute directly contradicts Congress's evident intent-the Circuits are divided as to which should be controlling ÷ [with] [t]he Fifth and Seventh Circuits ÷ [holding] that since the statute itself is unambiguous, the plain language of the statute must control ÷ [and] [t]he Third and Tenth Circuits, on the other hand, ÷ [holding] that the statute should be construed to effectuate Congress's evident intent, notwithstanding the statute's inartful phraseology ÷ [t]he Sixth Circuit has not addressed the issue ÷ [and] [t]he sole reported opinion from the Northern District of Ohio has adopted the view that the supplemental jurisdiction statute should be construed to effectuate Congress's intent, so that each member of the putative class must satisfy the amount in controversy as a prerequisite to federal subject matter jurisdiction ÷ [t]his Court believes that the better policy is to avoid intra-district splits wherever possible, and will follow Judge Oliver's holding in Crosby ÷ [so], this Court has jurisdiction only over the claims of putative plaintiffs whose claims, exclusive of interest and costs, exceed $75,000"; punitives not aggregable: "Defendant has certified that the average face value of the insurance policies issued to the 23,509 putative class members is $72,510.04 ÷ [and] Since many, if not most, putative class members have insurance policies worth $75,000 or less, those plaintiffs will meet the jurisdictional amount only if punitive damages and/or attorney fees are substantial enough to bring their claims over the $75,000 threshold"; "[b]oth sides agree it is unlikely, in light of the putative class size of 23,509, that a given plaintiff's pro rata share of any foreseeable punitive damage and/or attorney fee award will be substantial ÷ [e.g.,] [e]ven a punitive damage award of $23,000,000 would raise each plaintiff's pro rata share of the recovery by less than $1,000 ÷ [such that] [i]t is virtually certain that a class member holding an insurance policy worth $50,000 or $60,000 will be unable to meet the amount in controversy requirement on the basis of the value of the insurance policy plus a pro rata share of any foreseeable punitive damage and/or attorney fee award ÷ [thus,][p]unitive damages and attorney fees would have to exceed $587,725,000 before a plaintiff holding a $50,000 insurance policy would have a high enough pro rata share of the proceeds to meet the amount in controversy requirement ÷ [an] amount represent[ing] roughly 1/10 the gross domestic product of either Iceland or Laos"; test for common interest: "[a]ggregation of a damage award is permitted only where the plaintiffs 'unite to enforce a single title or right in which they have a common and undivided interest' ÷ [and] [s]uch an interest exists when 'if one plaintiff cannot or does not collect his share, the shares of the remaining plaintiffs are increased'"; no per se rule on aggregation of punitives: "[c]ourts are divided on the issue of whether punitive damage awards in class actions may be aggregated ÷ [with] [s]ome courts hold[ing] that punitive damages are fundamentally collective because they 'are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct' ÷ [so that] the full amount of foreseeable punitive damages should be counted for each plaintiff in determining the jurisdictional amount ÷ [and] [o]ther courts hold that since each class member has a separate and distinct interest in a portion of the total punitive damages, the amount claimed must be apportioned among all class members ÷ [but] [t]his Court believes that neither position should be a per se rule for all class actions involving punitive damage claims"; complaint determines nature of right: "the Court must look to the complaint itself to see if the punitive damages claimed are collective or individual in nature ÷ [and here], Plaintiffs' complaint prays for an order '[a]warding Plaintiffs and the Class punitive damages in an amount to be determined at trial' ÷ [t]he claim, as made, is a collective claim ÷ [since] [i]f one plaintiff cannot or does not collect his share, the shares of the remaining plaintiffs will be increased ÷ [so that] [o]n the complaint as written, the Court finds that it is proper to attribute the full amount of any foreseeable damages award to each putative plaintiff ÷ [therefore, since] [b]oth sides agree that a reasonable punitive damages award could exceed $75,000 in this case ÷ the Court finds that the amount in controversy requirement is met as to each putative class member")

Nelson v. Associates Financial Services Co. of Indiana, Inc., 79 F. Supp. 2d 813 (W.D. Mich. 2000) (Bell, J) (plaintiff's viewpoint required in class action context: plaintiff "seeks a judgment declaring that prepayment penalty provisions in class member loan agreements with Defendant, which loans have not yet been prepaid, are null and void, and enjoining the Defendant from enforcing the illegal prepayment penalty provisions ÷ [and] Defendant contends that the requisite amount in controversy is met because the injunctive relief Plaintiff is requesting would have a detrimental effect on Defendant that exceeds $75,000 ÷ Plaintiff requests the Court to: '[e]nter its Judgment declaring that prepayment penalty provisions in class member loan agreements with Defendant, which loans have not been heretofore prepaid or subject to collection of prepayment penalty by the Defendant, are null and void, further enjoining the Defendant from enforcement or attempted enforcement of the illegal prepayment penalty provisions' ÷ Defendant contends that based upon Plaintiff's assertion that his prepayment penalties of $1,479.44 and $3,838.96 are typical of the class, his assertion that there are at least 500 class members who would benefit from injunctive relief, and the fact that an injunction would affect both current and future customers, the cost to Defendant of the injunctive relief requested by Plaintiff greatly exceeds $75,000 ÷ [thus,] [t]he question posed by Defendant's response to Plaintiff's motion to remand is whether the amount in controversy can be determined with reference to the total detriment to Defendant from the injunctive relief requested ÷ [t]he federal courts are divided as to the proper perspective to use in determining the amount in controversy ÷[and] [t]here is a growing trend to find the amount in controversy to be met if either the plaintiff's harms or the defendant's costs of compliance will exceed $75,000 ÷ [t]he majority of courts, however, have adopted the position that in class actions the plaintiff's viewpoint should be followed ÷ [since,] [w]ere the court to consider the amount in controversy from the defendant's viewpoint, the rule against nonaggregation could be circumvented"; and while, e.g., an "injunction against future overcharges on late fees" might be "interpreted as a common right held collectively by all plaintiffs ÷ [here,] the injunction sought in this case is merely directed at preventing Defendant from enforcing the allegedly illegal prepayment penalty provisions in existing loans ÷ [and] is compensatory in nature ÷ [t]hrough this action Plaintiff is seeking, on behalf of a class of individuals who have or had loans with Defendant, reimbursement of any penalty paid or an injunction against charging the penalty on outstanding loans ÷ [and] the equitable relief sought is only a means through which the individual claim may be satisfied ÷ [therefore], the ban on aggregation applies to the equitable as well as the monetary relief"; attorney fees not aggregable: "this Court finds no merit to Defendant's contention that the requisite amount in controversy is met by Plaintiff's request for attorney's fees ÷ [i]n support of ÷[which] Defendant has placed greatest reliance on In re Abbott Labs. ÷ [however,] [t]he reasoning in Abbott Labs has no bearing on this case, however, because it involved the application of a specific Louisiana statute which required that fees be awarded only to the class representative ÷ [and] [n]o similar statute is involved in this case")

In re Cardizem CD Antitrust Litigation, 90 F. Supp. 2d 819 (E.D. Mich. 1999) (Edmunds, J) (defendants removed cases to federal court and plaintiffs remanded claims for statutory damages and attorneys' fees; remand motion for unjust enrichment claims denied; interest in disgorgement fund common and undivided: "[t]he Sixth Circuit has observed that '[a]n identifying characteristic of a common and undivided interest is that if one plaintiff cannot or does not collect his share, the shares of the remaining plaintiffs are increased ÷ [and] the amount-in-controversy requirement is satisfied here because the claim asserted is an integrated one and 'the disgorgement remedy would inure to the benefit of the class rather than vindicate any alleged violations of individual rights' ÷ [i.e.,] the possible recovery is either all or nothing ÷ [and] [i]t is therefore an integrated claim for an amount that easily satisifes the jurisdictional" amount; "Plaintiff [Sizemore] ÷ seeks to avoid removal by pleading for less than the jurisdictional amount" by expressly pleading that "'the amount in controversy ÷ does not exceed $74,999, including interest and award of attorney's fees and costs, disgorgement, restitution or treble damages' ÷ [and] 'disclaim[ing] for himself any recovery greater than $74,999'"; he "argues that Defendants cannot satisfy the amount-in-controversy requirement because: (1) Plaintiff and each class member plead an amount less than the $75,000 jurisdictional minimum; and (2) there is no common, integrated claim because each individual disgorgement claim is tied to the unlawful overcharges ÷ [but] [t]his Court disagrees"; "although 'there is nothing inherently improper in avoiding federal diversity jurisdiction by seeking a recovery below the jurisdictional amount', aggregation for jurisdictional purposes [is] ÷ permissible [where the claim] is the type of integrated claim which satisfies the jurisdictional amount in controversy", plaintiff's disclaimers notwithstanding; the claim here "'must, of necessity, produce a common fund in which the individual class members would hold an undivided, group right or interest entirely unrelated to their right to recover damages"; thus, even though "there is no express claim for unjust enrichment and/or disgorgement ÷ [t]he Court finds that ÷ the claims for injunctive relief can be aggregated", and "[b]ecause Plaintiff's complaint can be construed as seeking disgorgement of the amounts paid ÷ based on the theory of unjust enrichment, this Court concludes that it asserts an integrated claim"; plaintiff's viewpoint required in class action context: "[t]here is a split in the federal courts concerning whose viewpoint-plaintiff's, defendant's, or either one's-the Court considers when placing a value on the requested injunction ÷ [and] [t]his Court finds the 'either viewpoint' to be the better approach ÷ [as it] serves 'the purpose of a jurisdictional amount in controversy requirement-to keep trivial cases away from the federal court system"; here, "Defendant ÷ argues that, if an injunction is granted, it will cost it more than the $75,000 jurisdictional threshold amount to comply" and since under the "either-viewpoint" the Court "considers both 'the value to the plaintiff' ÷ and the costs of compliance", the amount was satisfied"; "when considering the defendant's costs of compliance, the Court is not required to ignore pecuniary benefits that derive from conduct the plaintiff alleges is unlawful", since "[a]t this stage of the litigation, the Court is attempting to value the amount 'in controversy' ÷ [and] [t]he legality of Defendant's conduct is at issue in this case"; "the amount in controversy, what is being fought over, includes the value of the ÷ transactions that Plaintifffs allege are illegal", and "[t]o adopt the approach Plaintiffs urge [(of not valuing allegedly unlawful conduct)] would force the Court to simply assume Defendant's liability and ignore its potential costs ÷ [however,] [w]hen applying the 'either viewpoint' approach, the Court must be careful to ensure that there is no circumvention of the nonaggregation rule ÷ [such that 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'"; here, "Defendants have presented evidence that the cost of compliance with the requested injunction will exceed the amount in controversy threshold becuase it will lose the tens of millions of dollars it would otherwise receive ÷ [and since] Plaintiffs seek injunctive relief that will benefit the class as a whole ÷ [the injunction's] entire value may be considered when determining whether the amount-in-controversy requirement ÷ is satisfied")

Crosby v. America Online, Inc., 967 F. Supp. 257 (N.D. Ohio 1997) (Oliver, J) (no aggregation of punitive damages or attorneys' fees: "AOL argues that an award of attorney's fees and punitive damages is not properly allocated pro rata to each class member; rather, any award of punitive damages and attorney's fees should be 'aggregated,' so that a total award in this case-including compensatory damages, attorney's fees and/or punitive damages-exceeding $75,000 would suffice to meet the amount-in-controversy requirement of 28 U.S.C. ? 1332 ÷ [and while] [t]he court agrees with AOL that in addition to compensatory damages, potential awards of attorney's fees and punitive damages can count toward the amount-in-controversy ÷ allowing AOL to aggregate compensatory damages, attorney's fees or punitive damages would allow them to circumvent the policies set forth in Sellers and subsequent cases"; "[i]n general, aggregation is appropriate only 'when two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest' ÷ [s]uch an interest exist[ing] when, 'if one plaintiff cannot or does not collect his share, the shares of the remaining plaintiffs are increased' ÷ [while here] 'each plaintiff seeks to receive a fixed sum' ÷ [they] have distinct interests in their claims because, as in Sellers, they sue under their individual contracts with AOL ÷ [m]oreover, when based upon such separate claims, attorney's fees should not be aggregated or viewed as part of a common fund, but should be assessed on a pro rata basis"; Zahn still valid: "AOL argues, in the alternative, that any award of attorney's fees and punitive damages should be allocated to the named Plaintiffs alone ÷ contend[ing] the court would then have supplemental jurisdiction over the other class claims under 28 U.S.C. ? 1367 ÷ [t]he law is clear, however, that just as attorney's fees or punitive damages are not to be generally viewed as part of a common fund for purposes of determining the amount-in-controversy as discussed above, it is inappropriate to consider such fees and/or damages as being only attributable to the named Plaintiffs ÷ [i]nstead, the fees and/or damages must be prorated ÷ [further,] [t]his court finds itself in agreement with those cases holding that the Zahn rule has continued vitality, even after the passage of the amendments to 28 U.S.C. ? 1367, which broadened supplemental jurisdiction to some extent ÷ [and will] continu[e] to apply Zahn ÷ [such] that all members of a class action must meet 28 U.S.C. ? 1332's jurisdictional requirements plaintiff's viewpoint and aggregation: "AOL's final argument is that the court may value the amount-in-controversy based on the costs AOL will incur if the court grants the Plaintiffs' requested injunction ÷ contend[ing] the court should consider the amount-in-controversy from its point of view since, to comply with the requested injunction, 'AOL would more likely than not suffer harm in excess of $75,000 in lost revenues'÷ [and while] [t]his court finds the either-viewpoint test to be the appropriate rule for determining the amount-in-controversy in class actions seeking both monetary and injunctive relief, and looks to AOL's cost of compliance with the Plaintiffs' requested injunction as an alternative means of satisfying the jurisdictional requirement ÷ [t]he court must still prorate the cost to AOL in order to determine whether each class member meets the jurisdictional requirement ÷ [a] defendant should not be able to aggregate its potential costs of complying with injunctive relief sought by multiple plaintiffs in order to obtain a federal forum when the plaintiffs cannot do so relative to their claims ÷ [w]hile it is proper to look to the cost of AOL's compliance with the requested injunction as an alternative way of measuring whether the amount-in-controversy is met, the amount-in-controversy between each Plaintiff and AOL must still be significant, i.e., in excess of $75,000, exclusive of interest and costs ÷ [t]he appropriate manner to determine the significance of the claims for jurisdictional purposes is to prorate the costs across the total number of Plaintiffs. Since the Plaintiffs could not have aggregated their separate claims in order to reach this court, AOL may not do so upon removing the case ÷ [o]therwise, the holding of Zahn would be rendered meaningless")

7. Seventh Circuit

No "Common and Undivided Interest": Del Vecchio; Brand Name; Lhotka; Garbie; Poindexter; but see: Jacobson; Loizon

Punitive Damages/Attorneys' Fees Not Aggregable: Del Vecchio; Brand Name; Tench; Ibrahim; Krause; Garbie

Plaintiff's Viewpoint Required in Class Action: Del Vecchio; Brand Name; Loizon

Supplemental Jurisdiction Under ? 1367 Not Available: Del Vecchio; Brand Name; Ibrahim

Del Vecchio v. Conseco, Inc., 230 F.3d 974 (7th Cir. 2000) (Wood, J, w/ Bauer & Posner) (viewpoint and nature of claim analyses distinguished: "[f]rom the language of his pleading, it appears that ÷ [plaintiff] was trying to evade Snyder by framing the amount in controversy in terms of what the defendants would have at stake if the class action were certified: their total unjust enrichment over which ÷ [he] seeks the imposition of a constructive trust ÷ [this] theory, however, amounts to a complete end-run around the principles enunciated in Snyder ÷ [w]hile this court has adopted the 'either viewpoint' approach (that is, the amount in controversy can be determined from either the plaintiff's or the defendant's viewpoint), we have nonetheless maintained that 'whatever 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' ÷ [here] [t]hat means ÷ that the amount in controversy from the defendants' point of view is the amount they risk paying him, not the amount they might have to pay the entire class ÷ [f]urthermore, this case does not fit into the narrow exceptions to the anti- aggregation rule recognized by the Snyder Court ÷ [i.e.,] [i]t is not a case where there is one res at issue, such as an estate ÷ [and where] it is proper to consider the value of the entire res for purposes of determining jurisdiction, ÷ [since] even if several plaintiffs have a claim to it, the recovery is nonetheless a unitary whole that must then be divided ÷ [t]his is not ÷ a [common fund] situation, as each of the insureds Del Vecchio wants to represent is entitled to his or her own separate recovery ÷ [u]nder Snyder, Del Vecchio simply cannot satisfy the amount in controversy requirement by framing it in terms of the aggregate amount by which Bankers Life and the other defendants have been unjustly enriched through their insurance contracts with the various unnamed class members"; aggregation of punitive damages a question of state law: "we asked the parties to submit supplemental briefing regarding the amount in controversy ÷ [and plaintiff] responded by claiming that not only he, but each and every class member, would be able to assert such high punitive damages in good faith that each class member individually would meet the amount required by ? 1332, and that the total amount in controversy has ballooned to $1.5 billion ÷ [t]he defendant insurance companies also appear to rely on the availability of punitive damages, as we explain below, though they principally complain that everyone proceeded in good faith below and that they do not wish to lose their favorable judgment on the merits ÷ [w]e have no quarrel in principle with the idea that punitive damages may sometimes be taken into account in deciding whether the proper amount is in controversy ÷ hav[ing] written before [that] 'where punitive damages are required to satisfy the jurisdictional amount in a diversity case, a two-part inquiry is necessary ÷ [t]he first question is whether punitive damages are recoverable as a matter of state law ÷ [and] [i]f the answer is yes, the court has subject matter jurisdiction unless it is clear 'beyond a legal certainty that the plaintiff would under no circumstances be entitled to recover the jurisdictional amount' ÷ [and while] [g]enerally, we give plaintiffs the benefit of the doubt in these matters, ÷ a claim for actual damages that vastly exceeds the apparent amount at stake ($600 or so) and asserts a right to punitive damages at the far upper end of the possible distribution of outcomes must be assessed critically ÷ [here,] Indiana does allow the award of punitive damages for fraud and breach of fiduciary duty, and so the first of the two requirements mentioned above is met ÷ [however, plaintiff] asserts ÷ that his compensatory damages amount to a mere $600, which represents the amount of the cash value lost between the years 1988 and 1996 ÷ [and] [o]n top of that modest figure, he claims that a punitive damage award in the (coincidental?) amount of $75,000 (a ratio of 125 to 1) would be appropriate here ÷ [w]ith all due respect, these new claims strike us as bordering on the farcical ÷ [l]enient though it is, the ÷ test for satisfying the jurisdictional amount has some outer limits, and we conclude that ÷ [plaintiff] has exceeded them")

In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599 (7th Cir. 1997) (Posner, J w/ Bauer & Wood) (piggyback jurisdiction under ? 1367 available: "[t]here is complete diversity of citizenship among the parties; the question, so far as the issue of diversity jurisdiction is concerned, is only whether the minimum amount in controversy required to maintain a diversity suit in federal court ($50,000 at the time the suit was filed) is present ÷ [t]he court cannot just add up the damages sought by each member of the class ÷ [and] [a]t least one named plaintiff must satisfy the jurisdictional minimum ÷ [so that] the other named plaintiffs and the unnamed class members can, by virtue of the supplemental jurisdiction conferred on the federal district courts by 28 U.S.C. ? 1367, piggyback on that plaintiff's claim ÷ [t]hat is, they remain plaintiffs, or unnamed members of the class, as the case may be, even though their own claims are for less than the jurisdictional minimum amount"; no aggregagion of statutory penalties: "[c]ompensatory damages, which we have just seen are not likely to exceed $50,000 for any of the named plaintiffs, are not the only form of monetary relief sought, however ÷ [t]he antitrust statute on which the Alabama class action is based authorizes the court to award up to $500 for each 'instance of injury or damages' as a statutory penalty, in addition to any compensatory damages ÷ [and] defendants argue that under Alabama law the entire statutory penalties awarded in a case are the indivisible penalty for a defendant's misconduct and so are the stakes in each of the plaintiffs' claims ÷ gesturing toward the Supreme Court's statement in Snyder that when 'two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest,' the amount in controversy is the aggregate in which they each have their undivided share ÷ [but] [t]his is not such a case ÷ [since] [t]he penalty prescribed by the Alabama statute is presumably per violation, that is, per sale at an unlawful price; and it is awarded to the victim of the particular violation, the direct or indirect buyer, rather than to the victims of the price-fixing conspiracy as a group or to a representative member of the group"; plaintiff's viewpoint required: "[one] way of satisfying the requirement of the minimum amount in controversy in an injunction case, the way principally argued by the defendants, is that a defendant's clerical or ministerial costs of compliance might carry a case across the threshold ÷ [and] [e]ven if an injunction doesn't require the defendant to restructure its business or give up a lucrative lawful business opportunity, but merely tells it to stop doing something illegal, such as conspiring to fix prices, there will be lawful costs of compliance ÷ [e.g.,] [j]ust the cost of duplicating an injunction in a case such as this and distributing the copies to all the relevant personnel might exceed $50,000 for each defendant, and, if so, this would argue for allowing removal to federal court ÷ [b]ut if the argument were accepted, then every case, however trivial, against a large company would cross the threshold, whether the threshold was $50,000 or as it now is $75,000, even if the plaintiff were asking for an injunction against disclosing his unlisted telephone number ÷ [i]t would be an invitation to file state-law nuisance suits in federal court ÷ [and] [w]e needn't bite this bullet"), cert. denied sub. nom. Abbott Laboratories v. Huggins, 522 U.S. 1153 (1998)

Lhotka v. Ford Motor Co., 98 F. Supp. 2d 984 (N.D. Ill. 2000) (Castillo, J) viewpoint and nature of claim analyses distinguished: "[t]he Seventh Circuit recently applied Snyder to a class action in which the plaintiffs sought to enjoin an alleged price-fixing conspiracy involving drug manufacturers ÷ [and] explained that 'whatever 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' ÷ point[ing] out that 'the question is whether each plaintiff is asserting an individual right or, rather, a right to an undivided interest in something,' in which case, their claims may be aggregated"; interest in contract claims not "common and undivided": "[a]n interest is common and undivided where "only the class as a whole is entitled to the relief requested' ÷ [o]n the other hand, "[c]laims are separate and distinct when the class members can individually bring a separate action without affecting the rights of other class members ÷ [e.g.], 'where named plaintiffs and class members are attempting to obtain individual payments from the defendant, or other relief to which any single one of them would be entitled, their rights are 'separate' ÷ [here,] each plaintiff has his own contract with Ford and can assert his rights individually without affecting the rights of any other putative class member ÷[such that] Ford could grant the relief sought-voiding the [warranty] time limits-individually, and the value of such relief would be negligible ÷ [i]ndeed ÷ 'where relief is sought for the breach of separately negotiated instruments, it is difficult, if not impossible, to imagine how the interest to be vindicated could be characterized as a common interest belonging to the group alone rather than to the individual plaintiffs'"; "Ford cites a number of cases from this District in arguing that the cost of the injunction, aggregated for all Plaintiffs, satisfies the jurisdictional minimum ÷ [but these] are easily distinguished from this one ÷ First, in Jacobson v. Ford Motor Co. ÷ the plaintiff, on behalf of a class, sued Ford for providing illegal secret warranties, i.e. providing some customers with goodwill service but denying it to others ÷ [t]he plaintiff sought declaratory judgment that Ford's general practice of providing goodwill service on a case by case basis was illegal, "not just that defendants illegally refused to provide free repaints (or other free service) to some purchasers." Id. at * 3. Specifically, the Jacobson class sought declaratory judgment 'directing defendants to account for all secret warranties and payments ... [and requested] the appointment of an officer to administer and distribute the funds to the members of the Class' ÷ [such that][t]he court held that the relief the plaintiff sought constituted a common and undivided interest of the class as a whole ÷ [h]ere, on the other hand, Plaintiffs do not seek such broad relief affecting the class as a undivided whole ÷ [here,] Plaintiffs do not attack Ford's general practice with regard to warranties, but only seek redress for those individuals who have suffered damage as a result of the time limit contained in each individual's warranty ÷ [nor have they] requested that an officer be appointed (or that a service program be put into place) to administer the relief to the class"; second, in Tylka v. Gerber Prods. Co., "no aggregation of claims occurred ÷ [while] the Tylka plaintiffs, themselves,'originally demanded 'corrective marketing, publicity, and advertising,'' and the court concluded that 'Plaintiffs now will not be heard to complain that the injunctive relief sought should only cost Defendant enough to preclude federal jurisdiction' ÷ [here], Plaintiffs have not requested such costly publication, nor does it seem necessary because Ford's contracts with each of the potential class members likely eliminates any need for widespread publication"; third, in Loizon v. SMH , "[t]he court held that putative class members had a common and undivided interest in the injunctive relief requested, i.e. notification, which required widespread publication to the class of the potential radiation dangers from the watch ÷ [and] ÷ only the class as a whole was entitled to the injunctive relief")

Tench v. Jackson National Life Insurance Co., 1999 WL 1044923 (N.D. Ill. Nov. 12, 1999) (Bucklo, J) ("[i]n this Circuit, calculation of the amount in controversy in a class action is no simple task, and is determined by aggregating the plaintiff's compensatory damages along with the plaintiff's pro rata share of attorneys fees, punitive damages, and the cost of injunctive relief to the defendant")

Jacobson v. Ford Motor Co., 1999 WL 966432 (N.D. Ill. Sept. 30, 1999) (Gottschall, J) (vehicle owners with paint problems alleging state consumer law violations and requesting equitable relief "'directing defendants to account for all secret warranties' ÷ as well as the 'appointment of an officer to administer and distibute the funds'"; plaintiffs' viewpoint not required where interest is common and undivided: "[t]he Seventh Circuit has expressly rejected the position, adopted by some courts, that, for purpose of assessing the amount-in-controversy requirement, quantification of a request for injunctive relief must be tied to the value of the injunction to the plaintiff ÷[r]ather, the Seventh CIrcuit has identified three ÷ situations-measured by the cost of enforcing relief to the defendant-in which the amount-in-controversy requirement could be met, namely, where the requested injunction would: 1) require some alteration in the defendant's businiess practices that would cost more than the statutory amount; 2) force the defendant to forgo a benefit that is worth more than the statutory amount; or 3) entail clerical or ministerial costs of compliance greater than the statutory amount ÷ [here,] [t]he injunctive relief Jacobson seeks would, if granted, constitute a common and undivided interest of the class as a whole, for she 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")

Ibrahim v. Old Kent Bank, 1999 WL 259944 (N.D. Ill. Apr. 8, 1999) (Corcoras, J) (automobile retail installment contract borrowers alleging consumer law violations; defendant removed case, and motion for remand was denied; Zahn overruled by 28 U.S.C. ? 1367: "[t]he Seventh Circuit has held that ? 1332's amount-in-controversy requirement is satisfied if the class representative meets the jurisdictional amount; the claims of the non-representative class members may fail to meet the jurisdictional amount while still falling within the court's supplemental jurisdiction"; punitive damages, injunctive relief, attorneys' fees not aggregagble: "Ibrahim seeks compensatory damages, punitive damages, injunctive relief and attorney's fees ÷ [and] [i]n analyzing the jurisdictional threshold question, we are allowed to aggregate: (1) the amount Ibrahim seeks as compensatory damages; (2) Ibrahim's proportionate share of punitive damages; (3) the value of Ibrahim's proportionate share of injunctive relief; and (4) Ibrahim's proportionate share of attorney's fees")

Krause v. GE Capital Mortg. Services, Inc., 1998 WL 831896 (N.D. Ill. Nov. 20, 1998) (Hart, J) (interest in contract claims not common and undivided: "[e]ach [plaintiff] couple is enforcing a right related to a single mortgage ÷ [and] [t]herefore the damages claim of the Krauses may be viewed as a single amount as can the claim of the Lindbergs ÷ [t]he two claims of the Krauses and Lindbergs, however, cannot be added together for purposes of determining if the jurisdictional amount is satisfied, nor can the claims of the class as a whole be aggregated"; punitive damages not aggregable; attorney fees not aggregable: "[t]he ICFA permits awards of punitive damages and attorney fees ÷ [p]laintiffs, however, seek punitive damages and attorney fees on behalf of the entire class ÷ [but] [i]n order to recover $75,000 per couple in punitive damages and attorney fees, the Illinois subclass would have to recover $75,000,000 or more of punitive damages and attorney fees even if the subclass only involved 1,000 or more loan payoffs ÷ [and] [t]he punitive damages and fees would have to be $750,000,000 if there were 10,000 loan payoffs for subclass members ÷ [so that] [i]t can be determined with a legal certainty that plaintiffs would not recover enough punitive damages and attorney fees to represent nearly $75,000 per class member couple") interest in injunctive relief not "common and undivided": "[e]ach couple is enforcing a right related to a single mortgage ÷ [and] also ÷ pray[s] for injunctive relief ÷ [h]owever, since the value of [the injunction] prohibiting further collection of the fees would have to be apportioned among the subclass members, it would not amount to much per class member"; Zahn overruled by 28 U.S.C. ? 1367: "[a]t least one named plaintiff must satisfy the jurisdictional amount requirement in order for Count VI to be before the court on diversity jurisdiction")

Garbie v. Chrysler Corp., 8 F. Supp. 2d 814 (N.D. Ill. 1998) (punitives and attorneys' fees not aggregable: "[b]ecause there is not complete diversity between the parties, the court need not address Chrysler's argument that the amount in controversy is met ÷ [n]evertheless, the law on this point in this district is well-settled ÷ [r]emoval is proper only where the requisite amount in controversy is manifest from a reasonable reading of the complaint ÷ [;] [i]t is the defendant's burden to establish the amount in controversy to a reasonable probability ÷ [and here] [p]laintiffs argue that Chrysler cannot establish the requisite amount in controversy for any named plaintiff"; "[g]enerally, plaintiffs in a class action cannot aggregate their individual damages to reach the required amount in controversy ÷ [and] '[p]unitive damages, like compensatory damages, cannot be aggregated for the purposes of satisfying the jurisdictional amount' ÷ [t]here is, however, one exception to the general rule against aggregation ÷ [viz.,] '[i]f two or more plaintiffs unite to enforce a single right or title in which they have a common and undivided interest, the amount in controversy is the aggregate in which they each have their undivided share' ÷ [but] [i]n the instant case, because each member of the putative class has a separate claim for paint damage to his or her vehicle that could be pursued in a separate lawsuit, each plaintiff must satisfy the jurisdictional amount ÷ [so that] [i]t is highly unlikely that any plaintiff's pro rata share of compensatory and punitive damages, even combined with attorneys fees, would exceed $75,000" two-step inquiry: "[i]f a party relies on punitive damages to satisfy the jurisdictional amount in a diversity case, the court must undertake a two part inquiry ÷ [f]irst, the court must determine whether punitive damages are recoverable as a matter of state law ÷ [i]f the answer is yes, the court then must determine whether it is sufficiently certain that an award of punitive damages in addition to the other relief sought would satisfy the jurisdictional amount"; "[w]hen a plaintiff, as in the instant case, originally files a complaint in state court, a defendant trying to remove is required to prove to a reasonable probability that more than the required amount is in controversy ÷ [and here] [i]t would be ÷ excessive for a $45 million punitive damages award to be assessed against Chrysler in this case involving defective paint jobs"; "as to attorneys' fees and costs, a number of courts in this district have held that, absent any provision providing that the representative party in a class action may recover attorneys' fees for the class, any recoverable attorneys' fees are to be allocated to the class on a pro rata basis")

Loizon v. SMH Societe Suisse de Microelectronics et Horologerie, SA, 950 F. Supp. 250 (N.D. Ill. 1996) (plaintiff's viewpoint required: "Defendants rely on ÷ [the] 'either viewpoint' rule to argue that this court has subject matter jurisdiction because the cost to defendants would exceed $50,000 ÷ [thereunder], a defendant c[an] satisfy the jurisdictional amount in controversy by showing that either the plaintiff's benefit from the injunctive relief or the defendant's cost of complying with the injunctive relief satisfied the amount ÷ [but] courts have not applied the 'either viewpoint' rule to class actions as defendants request ÷ [and while] Defendants argue that 'treating class actions as an exception to the 'either viewpoint' rule would run afoul of the very policy considerations which compelled the Seventh Circuit to adopt the test in the first place' ÷ [w]hat defendants seek here is to use the 'either viewpoint' rule to aggregate the cost of the injunctive relief in order to satisfy the amount in controversy ÷ [and] [t]hat result would 'run afoul' of the Supreme Court's rulings that parties cannot aggregate their claims to satisfy the amount in controversy"; injunctive relief was common and undivided: "[t]he court next addresses the argument that plaintiffs have a common and undivided interest in the relief they request ÷ [a]s the Supreme Court stated in Snyder, parties can aggregate claims in 'cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest' ÷ [t]he Court, however, never defined 'common and undivided interest' ÷ [and] [a]s a result, the phrase 'common and undivided interest' remains amorphous, with different courts reaching different conclusions when confronting similar issues ÷ [t]o establish a common and undivided interest [in injunctive relief], the moving party must show that the plaintiffs' claims 'derive from rights which they hold in group status' ÷ [i.e.], a class has a common and undivided interest 'where only the class as a whole is entitled to the relief requested'"; "[a] court 'must look to the underlying causes of action giving rise to a judgment in order to determine whether the plaintiffs' claims can be aggregated to satisfy the jurisdictional amount ÷ [i]f the parties claim individual injuries from the underlying causes of action, the claims are separate and distinct and aggregation is not allowed ÷ [i]n this case, ["Plaintiffs request that defendants compensate them for all of plaintiffs' incurred losses, pay plaintiffs' costs and attorney fees, account for all sales of that line of watches, and 'inform all Plaintiffs that tritium-based Swatch watches cause exposure and absorption of radiation by tritium-based Swatch watches far in excess of the annual skin dose limit for the public and in excess of the maximum level set by the International Committee on Radiological Protection for the public exposure to radiation'"] [and] only the class, and not individual class members, could request the injunctive relief ÷ [t]his court therefore finds that putative class members have a common and undivided interest in the injunctive relief requested ÷[h]aving established that plaintiffs have a common and undivided interest in the injunctive relief requested, this court again looks to the 'either viewpoint' rule for subject matter jurisdiction ÷ [and] [b]ecause the defendants' cost of complying with the requested injunctive relief satisfies the amount in controversy, this court has subject matter jurisdiction over the case")

Poindexter v. National Mortgage Corp., 1991 WL 278454 (N.D. Ill. Dec. 23, 1991) (plaintiff's viewpoint required: "National does not allege that the compensatory damages sought by plaintiff meet the jurisdictional amount requirement as to each plaintiff and class member ÷ [i]nstead, it argues that, if aggregated, the cost of its compliance with the injunctive and declaratory relief sought would far exceed the total sum of $50,000 ÷ [and] asks the court to determine the amount in controversy from the 'defendant's viewpoint' and find that it has satisfied the jurisdictional amount requirement ÷ [but while] the court may consider the 'defendant's viewpoint' when determining jurisdictional amount ÷ a court applying the ÷ rule in a class action setting must pro rate the defendant's cost among the class members"; no common and undivided interest: "[a]ccording to Poindexter, the most he or any individual class plaintiff could receive by way of damages is $7,920 ÷ [and] [d]efendant does not dispute that, under the general rule of non-aggregation, this alleged damage estimate fails to satisfy the jurisdictional amount requirement ÷ [but] [r]ather, defendant argues that plaintiff's claims for injunctive and declaratory relief constitute a 'common and undivided interest' of all class members ÷ [t]herefore, defendant argues, plaintiff's claims may be aggregated in order to satisfy the jurisdictional amount requirement ÷ [d]efendant, however, has misunderstood the test for 'common and undivided interest' ÷ [a]n interest is 'common and undivided' where only the class as a whole is entitled to the relief requested ÷ [but] [w]here named plaintiffs and class members are attempting to obtain individual payments from the defendant, or other relief to which any single one of them would be entitled, their rights are 'separate' ÷ [h]ere, the class is definitely not asserting a 'common and undivided' interest ÷ [as] [e]ach class member has a separate mortgage contract and note, each class member could in theory bring an individual action for National's overcharges and for an order enjoining any future breach ÷ [t]herefore, plaintiff's claims may not be aggregated to satisfy the jurisdictional amount requirement"; no aggregation of punitive damages and attorneys' fees: "[d]efendant also argues that the potential attorney's fees and punitive damages should be attributed to the class as a whole and treated as a 'common fund' in order to meet the jurisdiction amount requirement ÷ [w]hile the Seventh Circuit has not yet had the opportunity to address the question, the court believes that punitive damages and attorney's fees are attributed to each plaintiff and class member on a pro rata basis where the claims are 'separate' and 'independent' ÷ [t]he rule against aggregation cannot be circumvented simply because a plaintiff seeks punitive damages and attorney's fees")

8. Eighth Circuit

No "Common and Undivided Interest": Trimble; Burns; Brisson; Blair; Crosby; Chase

Punitive Damages/Attorneys' Fees Not Aggregable: Brisson; Peterson

Plaintiff's Viewpoint Required in Class Action: Mass. State Pharm. Ass'n; Burns; Blair; Crosby

Supplemental Jurisdiction under ? 1367 Not Available: Trimble; Peterson

Trimble v. Asarco, Inc., 232 F.3d 946 (8th Cir. 2000) (McMillan, J w/ Floyd & Gibson, JJ) (no common and undivided interest: "the individual members of the plaintiff class are asserting separate and distinct claims related to their properties, and thus, under Snyder, their claims cannot be aggregated to satisfy the $75,000 amount-in-controversy requirement"; Zahn still valid: [m]oreover, if Zahn applies, then each and every member of the plaintiff class must meet the $75,000 threshold in order to remain in federal court ÷ [i]f Zahn does not apply, and supplemental jurisdiction may be exercised, then plaintiffs need only show that at least one member of the class meets the $75,000 jurisdictional requirement ÷ [p]laintiffs argue that Congress overruled Zahn by its 1990 enactment of 28 U.S.C. ? 1367 ÷ [a] few federal courts of appeals have considered ? 1367's impact on Zahn, and they have reached divided conclusions ÷ [and while] [t]he Eighth Circuit has yet to address the question of whether ? 1367 overrules Zahn ÷ we agree with the district court that the Tenth Circuit's decision in Leonhardt states the better view ÷ [and] [w]e agree with and adopt the reasoning ÷ [therein, and] hold that the rule of Zahn remains viable notwithstanding Congress's enactment of ? 1367 ÷ [such that] [i]n the present case ÷ the 30,000-plus members of the putative plaintiff class must each satisfy the jurisdictional amount-in-controversy requirement under 28 U.S.C. ? 1332 for the district court to exercise subject matter jurisdiction over their cognizable state law claims")

Burns v. Mass. Mutual Life Ins. Co., 820 F.2d 246 (8th Cir. 1986) (Bowman, J w/ McMillan & Conmy, JJ) (plaintiff's viewpoint required; no common and undivided interest: "[t]he amount in controversy in a suit for injunctive relief is measured by the value to the plaintiff of the right sought to be enforced ÷ [but] Burns contends that the losses of the proposed class of non-UPDATE policy holders should be aggregated to meet the jurisdictional requirement ÷ assert[ing] that where equitable relief is sought by a class, the claims traditionally have been considered to be common and the amount in controversy has been determined by aggregating the claims of the class ÷ [and] that the class he seeks to certify has a common and undivided interest in the proper division of the surplus funds ÷ [w]e believe otherwise"; "[t]raditionally, '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 collectively equal the jurisdictional amount' ÷ the Supreme Court [has] held that the rules of aggregation traditionally applied in class action suits survived the 1966 amendments to the federal class action rule ÷ [and] [i]n Zahn, the Court expanded this holding, ruling that in a class action suit under Rule 23(b)(3), each member of a prospective class presenting separate and distinct claims must meet the $10,000 jurisdictional requirement before being admitted to the class ÷ [s]everal courts have applied the ruling in Zahn to all federal class action suits, looking to the substance of the class action claim, rather than to the specific subheading of Rule 23(b) under which it was brought, to determine whether aggregation is permissible ÷ [t]he question before us, then, is whether this lawsuit presents a separate and distinct claim as to each member of the proposed class or seeks to enforce a single claim that is undivided and common to the class ÷ [t]he courts which have dealt with the issue have held that class members in class action suits seeking a monetary recovery on insurance contracts do not present common claims that can be aggregated in determining whether the jurisdictional amount is present ÷ [h]ere, the point of Burns's lawsuit is to compel the payment of sums he asserts he is entitled to receive under the terms of his contract with Massachusetts Mutual ÷ [t]he claims of the proposed class members are distinct from each other; each policy holder asserts an individual claim based upon that policy holder's individual contract ÷ [and] [w]e therefore conclude that the claims of the proposed class members are separate and distinct and cannot be aggregated for purposes of satisfying the requisite jurisdictional amount")

Mass. State Pharm. Ass'n v. Federal Prescription Svc., 431 F.2d 130 (8th Cir. 1970) (Van Oosterhut, J w/ Mehaffy and Bright, JJ) (plaintiff's viewpoint required in class action context: "[i]n order for a federal court to have jurisdiction in a case involving diversity of citizenship or a federal question, the plaintiff bears the burden of proving that the 'matter in controversy exceeds the sum or value of $10,000 exclusive of interests and costs' ÷ [with] [t]he amount in controversy ÷ tested by the value of the suit's intended benefit to the plaintiff ÷ [t]his is the so-called 'plaintiff's viewpoint' rule ÷ [while] [t]here is some authority for the proposition that the amount in controversy is valued by the 'thing to be accomplished by the action' as to either the plaintiff or the defendant, whichever is the higher ÷ [i]n light of Snyder v. Harris, ÷ we are of the view that the 'plaintiff's viewpoint' rule is the only valid rule ÷ [i]n a class action where the aggregate amount of damages to the class exceeds $10,000, the value of the thing to be accomplished by the action, (judgment for the aggregate amount) as to the defendant exceeds the jurisdictional amount ÷ [but] [t]he Court in Snyder does not recognize the presence of the jurisdictional amount in that situation ÷ [and its] holding can only be interpreted as precluding the valuation of the amount in controversy from the defendant's viewpoint ÷ [since] [t]To hold otherwise would in effect permit aggregation of claims"; "[i]n a suit involving unfair or unlawful competition the benefit to the plaintiff is generally measured by determining the difference between the value of the plaintiff's business without the unfair or unlawful competition and the value of the business with it ÷[and] [i]f the unfair or unlawful competition diminishes the value of the plaintiff's business by more than $10,000 then the benefit to the plaintiff to prohibit this competition would meet the jurisdictional amount ÷ [here,] [t]he four individual pharmacist-plaintiffs have each failed to prove the value of his business has been diminished in any substantial amount by the alleged unfair competition")

Crosby v. Aid Ass'n For Lutherans, 199 F.R.D. 636 (D. Minn. 2001) (Davis, J) (no common and undivided interest: "[t]he claims ÷ involve separate insurance policies, and the Eighth Circuit [in Burns] ÷ held that in class actions involving monetary recovery on individual insurance contracts, the claims of the proposed class are separate and distinct and cannot be aggregated"; plaintiff's viewpoint required: "Defendants' cost of establishing a claims resolution process as a whole cannot be used as a bases for determining the amount in controversy"; Zahn still valid: "since the parties briefed this issue ÷, the Eighth Circuit addressed this specific question and ruled [in Trimble] that Zahn was not overruled by ÷ ? 1367")

Brisson v. Summit Technology, Inc., 1999 WL 766548 (D. Minn. Aug. 10, 1999) (Kyle, J) (removed state court antitrust class action remanded for failure to meet the amount in controversy jurisdictional requirement; attorneys' fees not aggregable: while "[a]ttorneys' fees are properly included in the calculation of the amount in controversy ÷ 'the majority view is that the attorney's fees may not be aggregated to satisfy the jurisdictional minimum, ÷ [but rather] considered on a pro rata basis ÷ [and] [t]his Court does not find ÷ [the minority view] persuasive"; "the Court notes that the majority rule against aggregation was recognized and disagreed with ÷ [by the Northern District of Florida, which] decided to aggregate the attorney's fees ÷ because of its view that attorney's fees in modern litigation are more akin to punitive damages, and ÷ [in the] Eleventh Circuit, punitive damages are ÷ [aggregated; however] [t]his court ÷ disagree[s] with the Eleventh Circuit (and the Fifth Circuit) and [has] adopted the contrary view of the Second Circuit, which held that aggregating punitive damages runs contrary to Snyder and Zahn"; "the court is unpersuaded by the ÷ analysis [from an unreported W.D. Wisc. decision holding that "the claim for attorney's fees that 'plaintiff asserts on behalf of herself and the proposed class members is a claim [that is] common and undivided'"] ÷ 'the 'paradigm cases' which allow claims to be aggregated 'are those which involve a single indivisible res, such as an estate, a piece of property or an insurance policy' ÷ [i.e.,] aggregation is permitted when the adjudication of one claim implicates the rights of all other claimants ÷ [and] [t]he Court agrees with Plaintiffs that in the instant case ÷ no individual class members recovery is contingent upon any other's")

Peterson v. BASF Corp., 12 F. Supp. 2d 964 (D. Minn. 1998) (Tunheim, J) (Zahn still valid: "we assume that BASF has established, by a preponderance of the evidence, that Hector Farms' claimed compensatory damages would be $34,880 ÷ [but] find, nonetheless, that BASF is unable to establish that the amount in controversy, which is necessary for diversity jurisdiction to be invoked, has been satisfied ÷ [a]s noted, one unnamed member of the putative class-Hector Farms-would satisfy the $75,000 threshold if it were to receive an award of treble damages, as is requested in Count IV of the Plaintiffs' Amended Complaint ÷ [t]herefore, BASF urges, supplemental jurisdiction may be exercised over all of the members of the class, pursuant to Title 28 U.S.C. ? 1367 ÷ argu[ing] that, in enacting [the statute] Congress abrogated the holding in Zahn, which requires each class member to individually satisfy the jurisdictional amount in controversy, and authorized the exercise of supplemental jurisdiction over class members who do not satisfy that requisite amount ÷ the District Court ÷ closely analyze[d] the effect of Section 1367 upon the Court's holding in Zahn, and acknowledged the split of authority on the issue ÷ [it] surveyed the holdings of District Courts on both sides of the question, found the majority to support Zahn's survival"; "BASF now posits that weight of the decisions, which uphold the continued vitality of Zahn, has been eroded, since the Court's analysis in In re Potash, by two Courts of Appeals' decisions which, relying upon Section 1367's plain language, have held to the contrary ÷ [however,] [s]ince BASF urges us to reject the interpretation of the Statute that is offered by a Court of this District, in favor of those of the Fifth and Seventh Circuits, the doctrine of stare decisis is implicated ÷ [w]ith that in mind, we have independently reexamined the import of Title 28 U.S.C. ? 1367 upon the viability of Zahn 's requirement, that each class member must meet the jurisdictional threshold, and we have reconsidered the soundness of the Potash decision ÷ [wherein], the Court determined, as have other Courts, that Congress did not intend the Judicial Improvement Act of 1990 to overrule Zahn"; ? 1367 inherently ambiguous: "[t]he Fifth Circuit, which has held that the Zahn has been legislatively overruled by the Act, agreed that, as evidenced by the relevant legislative history, Congress did not contemplate an abrogation of that aspect of Zahn ÷ [n]evertheless, however compelling the legislative history might be, it does not play a role in the construction of a statute in the absence of ambiguous language ÷ [and] [w]here the statutory language is plain, the sole function of the Court is to enforce its terms ÷ [however] it is neither plain, nor unambiguous, as to whether Section 1367 abrogated ÷ [Snyder's] well-established interpretation of Section 1332, as it elected not to amend that statutory provision ÷ [t]hus, as Section 1367(a), by its very terms, yields to contrary statutory provisions, it must be read in pari materia with Section 1332, as interpreted by Zahn and Snyder ÷ [and] [a]ccordingly, we agree with the Court, in Potash, that the meaning of Section 1367 cannot be considered clear, at least as applied to diversity class actions ÷ [i]ndeed, 'it is unlikely that so much scholarly effort would have been expended on the meaning and purpose of ? 1367 if its meaning and purpose were clear' ÷ [t]urning to the matter of legislative history, it appears clear that Zahn has retained its validity ÷ [c]iting Zahn, the House Committee report noted that, 'this section is not intended to affect the jurisdictional requirements of 28 U.S.C. ? 1332 in diversity-only class actions' ÷ [w]e do not believe that Congress' intent is in doubt on this issue and, therefore, we decline to hold that Section 1367 has legislatively overruled Zahn"; no aggregation of punitive damages: "[e]ven if we were to accede to the holdings of the Fifth and Seventh Circuits, BASF's suggestion that, where an unnamed member of a putative class meets the $75,000 threshold, supplemental jurisdiction extends over the named Plaintiffs who do not, goes far beyond the limits of the holdings in those Circuits ÷ [as] [t]hose Courts have held that, 'at least one named plaintiff must satisfy the jurisdictional minimum'"; "BASF suggests that the Court use its 'common sense,' in order to aggregate the 'punitive' aspect of the class members' potential treble damage awards, as one 'amount in controversy', and should aggregate the attorneys' fees, which could be awarded for the entire class, and attribute them only to the fourteen named Plaintiffs ÷ [but] [w]e cannot agree ÷ [a]lthough the Eighth Circuit has not reached the issue, we believe that the aggregation of punitive damages, or of attorneys' fees, for jurisdictional purposes is contrary to long-settled non-aggregation principles which have been enunciated by the Supreme Court ÷ BASF relies primarily upon Tapscott ÷ and Allen ÷, which maintain that claims for punitive damages may be aggregated and attributed, in full, to each individual plaintiff for jurisdictional purposes ÷ [i]n Allen, the Fifth Circuit purported to apply principles from Snyder, Zahn, and the historic 'common fund' cases, and concluded that, under Mississippi law, punitive damages were 'fundamentally collective' ÷ [l]ikewise, in Tapscott, the Eleventh Circuit followed Allen and aggregated punitive damages for jurisdictional purposes, based upon Alabama law, and held that the punitive damages were sought to vindicate 'a single collective right in which the putative class has a common and undivided interest' ÷ [s]ince those decisions, the Second Circuit has also considered the issue ÷ [i]t disagreed with the Fifth and Eleventh Circuits, and reasoned that, to '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' ÷ [c]entral to the Court's analysis was the reality that each class member could advance a separate punitive damages claim, in a separate lawsuit, without affecting the punitive claims of other class members ÷ [and] [w]e concur that this fact distinguishes, with a bright line, class members' claims for punitive damages from those 'common fund' cases in which the plaintiffs' claims, for an undivided interest in a res, are inextricably joined ÷ [but] [o]ur rejection of BASF's argument need not rest on that ground alone, for BASF commends the aggregation of the exemplary portion of the Plaintiffs' treble damage claims under New Jersey law, a position that would extend Tapscott and Allen ÷ far beyond their rationales, and would wholly sever their logic from the sound moorings of the historic 'common fund' cases ÷ Tapscott and Allen are based upon an examination of the State laws at issue, in order to determine whether that law considers punitive relief to create one right of recovery, without regard to a distribution among the plaintiffs ÷ [and] [r]elying upon this authority, BASF emphasizes that treble damages, under the New Jersey Consumer Fraud Act, is considered to be a punitive remedy ÷ [but] BASF's wooden characterization of treble damages as punitive in nature, without reference to context, does nothing to inform us whether such damages are collective and, therefore, form a single right among the plaintiffs ÷ [and] [c]learly, they do not ÷ [as,] [u]nlike punitive damages, treble damages are not discretionary, are in unflagging proportion to the amount of actual damages sustained, and are awarded to the individual who sustained the actual damages ÷ [a]s such, treble damages are no more part of a 'common and undivided interest' than are compensatory damages"; "[s]imilarly, BASF has not persuaded us that attorneys' fees may be aggregated, in the named Plaintiffs, for jurisdictional purposes, nor has it provided any competent evidence as to the potential amount of any such attorneys' fees ÷ this Circuit measures a plaintiff's ability to meet the jurisdictional threshold by taking into account the requested attorneys' fees ÷ [a]lthough this Circuit has not reached the issue, the majority view is that attorneys' fees may not be aggregated to satisfy the jurisdictional minimum, but should be considered on a pro rata basis ÷ [and while] [a] growing minority of Courts allow an exception to this rule when the law of the State attributes the entire sum of attorneys' fees to the named Plaintiffs ÷ BASF's argument fails since the applicable Minnesota law does not suggest that attorneys' fees ought to be assigned only to class representatives ÷ BASF points to no Minnesota statutory provision, or case authority, which makes such a designation, but suggests that tying the attorneys' fees to the named Plaintiffs would further the purposes behind Minnesota Statutes Section 8.31, Subdivision 3a, which has been held 'to encourage lawyers to accept cases where nominal damages erect financial barriers to litigation' ÷ [but] [w]e find this argument to be deeply flawed ÷ [w]hether aggregated, for jurisdictional purposes, to the named Plaintiffs ÷ [l]astly, BASF has provided no competent evidence, much less a preponderance of the same, that, if aggregated in the fourteen named Plaintiffs, the attorneys' fees would satisfy the amount in controversy requirement ÷ [t]hey, of course, point to a similar class action, in North Dakota, in which the attorneys' fees were stipulated to be $1,250,000 ÷ [h]owever, something more than anecdotal conjecture is necessary to remove the Court's doubt as to its subject matter jurisdiction")

Chase v. W.R. Grace & Co., 2001 WL 391783 (D. Minn. Mar. 20, 2001) (Davis, J) (no common and undivided interest:"[a]s in Trimble, in this case each plaintiff is asking for damages based on the costs to investigate and clean-up their individual properties, and residual loss in value to their individual properties, both of which are determined on a property-by-property bases"; "[c]ontrary to Defendant's assertions, Plaintiff is seeking compensation on behalf of each individualized property owner, not 'generalized relief' on behalf of the neighborhood", in that "[n]ot every home in the Affected Neighborhood was contamined, although they all incurred 'stigma value loss" in varying degrees"; "[t]herefore while the putative class members' interests and claims are common, they are not undivided")

Blair v. Source One Mtg. Svcs. Corp., 925 F. Supp. 617 (D. Minn. 1996) (Erickson, J) (no common and undivided interest: "Defendants contend that Plaintiffs' request for an equitable remedy comprises a common and undivided interest in a form of relief which allows aggregation for purposes of satisfying the amount in controversy ÷ [and] that the amount in controversy requirements of Title 28 U.S.C. ? 1332 is satisfied by the aggregated cost to the Defendants of complying with the Plaintiffs' request for injunctive relief ÷ [a]n extended discussion of the conflicting contentions is unnecessary in light of the general rule, which does not appear to admit of compelling exception, that the costs to a defendant, in complying with any injunctive Order, may not be aggregated, in a class action proceeding, so as to satisfy the amount in controversy prerequisite of Section 1332 ÷ [a]gainst ÷ [a] formidable array of contrary authority, the Defendants urge that we carve an exception to the Supreme Court's holdings, in Snyder and Zahn, which would wholly devour any proscription, against the aggregation of a defendant's anticipated costs, so as to permit a defendant's removal of a class action to Federal Court, in a way that would be denied to a plaintiff, under Snyder and Zahn, who would seek to originate that same class proceeding in a Federal venue ÷ [f]or example, the Defendants contend that each class member has a legal right to claim the full scope of equitable relief that the Plaintiffs have claimed here, and that, therefore, no aggregation is necessary ÷ [h]owever, we are not convinced that, absent a class action medium, the Plaintiffs would have any prospect of securing the broad, sweeping equitable relief that they seek ÷ [s]imilarly, to the extent that the Defendants argue that such an aggregation will allow the Federal Courts to address diversity cases which are significant in terms of their measurable damages, the same public policy would urge the reversal of Snyder and Zahn-a prospect that has not eventuated in the quarter of a century since their espousal of an antiaggregation doctrine")

9. Ninth Circuit

No "Common and Undivided Interest": Snow; Phipps; Kanter; Gibson; Navarro-Rice; Haisch

Punitive Damages/Attorneys' Fees Not Aggregable: Phipps; Kanter; Gibson; Navarro-Rice; Haisch

Plaintiff's Viewpoint Required in Class Action: Snow; Phipps; Kanter; Navarro-Rice; DeVries

Supplemental Jurisdiction under ? 1367 Not Available: Gibson

Snow v. Ford Motor Co., 561 F.2d 787 (9th Cir. 1977) (Choy, J w/ Hoffman and Carter, JJ) (plaintiff's viewpoint required in class action context: "[w]e are presented here with two conflicting lines of precedent, each providing a method by which to measure the amount in controversy ÷ [o]ne line sets out an area where the amount may be determined from the defendant's point of view ÷ [and] Ford maintains that this doctrine is applicable here, and that the injunction sought would have an impact on it far greater than the $10,000 requirement of the diversity statute ÷ [o]n the other side is Snyder v. Harris, ÷ where the Supreme Court held that, in a class action brought under Federal Rule of Civil Procedure 23(b)(3), plaintiffs may not aggregate their 'separate and distinct' claims in an attempt to reach the jurisdictional minimum. Rather, each member of the class must have a claim which exceeds $10,000 ÷ [w]hile the Court did not speak about 'the plaintiff's viewpoint' or 'the defendant's viewpoint' in measuring the amount in controversy, it is clear that the Court applied the plaintiff's viewpoint rule at least for a Rule 23(b)(3) class action not involving a request for injunctive relief ÷ [and] [w]e agree that Snyder is controlling ÷ [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 ÷ [and] we hold that, where 'the equitable relief sought is but a means through which the individual claims may be satisfied, the ban on aggregation (applies) with equal force to the equitable as well as the monetary relief' ÷ Ford, nevertheless, contends that aggregation is not at issue because the right sought to be enjoined is a single right of a single defendant, namely, its right to market its packages ÷ [but] [t]he argument misses the mark ÷ [as,] [g]iven Snyder, the proper focus in this case is not influenced by the type of relief requested, but rather continues to depend upon the nature and value of the right asserted 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 ÷ [and] [t]hat figure is far below the jurisdictional minimum"; "[w]e note at this juncture that, while neither Snyder nor Zahn appears to have involved a request for injunctive relief, some of the prior Supreme Court cases on which the Snyder and Zahn decisions relied for their nonaggregation holdings did ÷ [y]et, in none of these cases was the Court moved by that fact to discuss the amount in controversy from the defendant's point of view")

Phipps v. Praxair, Inc. 1999 WL 1095331 (S.D. Cal. Nov. 12, 1999) (Whelan, J) (interest in disgorgement fund not "common and undivided": "Plaintiffs seek to recover for themselves and for the general public restitution of of all funds obtined from the[] allegedly unlawful fees, disgorgement of profits, injunctive relief, punitive damages and attorney's fees ÷ [and] [t]he Court finds that Plaintiffs' claims are separate and distinct ÷ [they] seek damages on behalf of themselves as customers of Defendants ÷ [they] have been individually harmed by Defendants' allegedly fraudulent activities, and each Plaintiff may bring a separate action ÷ [they] do not derive their claims from group status"; attorneys fees not aggregable: "[t]he law is clear in the Ninth Circuit ÷ that a district court may not aggregate a possible award of attorneys' fees to reach the amount in controversy", as they are not a common fund; punitives not aggregable: "[a]lthough the Ninth Circuit has not addressed punitive damages, numerous district courts within this circuit have concluded that ÷ [a]ggregation of punitive damages to meet the jurisdictional minimum is not permitted in this circuit"; plaintiff's viewpoint used to value injunctive relief: "[a]s for Plaintiff's claims for injunctive relief, the Ninth Circuit has held that district courts must measure the amount in controversy of an injunction by benefit to each individual plaintiff, not by cost of compliance to the defendant ÷ [so that] Defendants must show that each plaintiff's pro-rata share of awarded restitution, disgorgement, attorneys' fees, punitive damages and injuctive relief satisfies the amount in controversy requirement ÷ [but they] have provided no evidence nor do they even allege that teh claims of any named or unnamed plaintiff exceed $75,000 ÷ [and] it is undisputed that no named plaintiff comes close")

Kanter v. Warner-Lambert Co., 52 F. Supp. 2d 1126 (N.D. Cal. 1999) ("defendants do not dispute that the actual monetary damages to each class member are between $9.00 and $17.00-the approximate cost of a single package of one of the defendants' products ÷ [i]nstead they make three separate arguments that will be addressed in turn: (1) that compliance with the injunctive relief requested by plaintiffs will cost each defendant more than $75,000; (2) that the class members have a common and undivided interest in their claims for punitive damages; and (3) that the value of the claim for attorneys' fees under the California Consumer Legal Remedies Act ('CLRA') exceeds $75,000 per named plaintiff" plaintiff's viewpoint required in class action context: "[d]efendants point out that plaintiffs have requested an injunction that would prohibit defendants from selling the products at issue ÷ have submitted evidence that the cost to each defendant of complying with such an injunction would exceed $75,000 ÷ [and] contend that the amount in controversy requirement is thereby satisfied ÷ [but] [d]efendants' argument neglects, indeed obfuscates, the fact that the Ninth Circuit rejected the 'defendant's-viewpoint' approach in Snow ÷ [a case] squarely on point ÷ [t]he right asserted by plaintiffs in this case is the right of individual future consumers to be protected from purchasing defendants' allegedly defective products ÷ [and] [s]uch a purchase is said to injure consumers in an amount between $9.00 and $17.00 each"; no common and undivided interest in punitive damages: "[d]efendants' next contention is that the members of the class have a common and undivided interest in their claims for punitive damages; therefore, the punitive damages claims may be aggregated to satisfy the jurisdictional minimum ÷ [a]lthough that argument has not been addressed by the Ninth Circuit, it has been repeatedly rejected by district courts in this circuit, including the undersigned, as inconsistent with Ninth Circuit precedent ÷ [viz.,] that claims are only common and undivided if they derive from rights that plaintiffs hold in group status, or they relate to a single res such as an estate or an insurance policy ÷ [d]efendants have cited In re Northern Dist. of Cal., Dalkon Shield IUD Prod. Liab. Litig. ÷ for the proposition that punitive damages claims may be aggregated ÷ [but] [r]eliance on that opinion is misplaced; it was vacated by the Ninth Circuit in its entirety and has no value as precedent ÷ [a]ggregation of punitive damages to meet the jurisdictional minimum is not permitted in this circuit"; Zahn still valid: "[d]efendants' final argument regarding the jurisdictional amount progresses as follows: (1) plaintiffs have a claim for attorneys' fees which is likely to exceed $150,000; (2) those fees are properly attributed solely to the two named plaintiffs, not absent class members, which raises the amount in controversy for the named plaintiffs beyond the jurisdictional minimum; and (3) because the Court has jurisdiction over the claims of the named plaintiffs, it may exercise supplemental jurisdiction over the claims of the remaining class members [but] [t]hat argument fails ÷ [as] [d]efendants present no evidence that the attorneys' fees will actually exceed $150,000, as is their burden ÷ [and] [e]ven if defendants' assumption is reasonable, the assertion of jurisdiction on this basis still fails ÷ [as] [i]t is based on the presumption that Zahn ÷ was overruled by 28 U.S.C. section 1367-the supplemental jurisdiction statute ÷ [however,] [t]he Court finds persuasive the opinions of the Third and Tenth Circuits which concluded that section 1367 did not overrule Zahn ÷ even though other circuits have disagreed")

Gibson v. Chrysler Corp., 1999 WL 1049572 (N.D. Cal. May 28, 1999) (Patel, J) (state court action alleged violations of California consumer law where defendant automobile manufacturer sold vehicles with defective paint; interest in disgorgement fund not "common and undivided": "Chrysler ÷ argues that plaintiffs will have a 'common and undivided interest' not attributable to the class members if plaintiffs prevail and Chrysler is ordered to disgorge its profits ÷ [but] disgorgement is a form of equitable relief ÷ [and] 'where the equitable relief sought is but a means through which the individual claims may be satisfied, the ban on aggregation applies with equal force' ÷ [likewise,] Chrysler also contends that the court must add the availability of rescission to the mix of cumulative remedies sought ÷ [but] recission is [also] a form of equitable relief subject to the anti-aggregation principle"; punitive damages not aggregable: "Chrysler contends that plaintiffs' CLRA cause of action allows for the recovery of punitive damages ÷ [while] conced[ing] that plaintiffs have not requested punitive damages ÷ [and] maintains that any prayer for punitive damages, standing alone, is sufficient to meet the amount in controversy requirement ÷ [i]n its lengthy argument that punitive damages are a 'common and undivided' interest for the purpose of satisfying the amount-in-controversy requirement, Chrysler fails to mention either this court's prior consideration of the issue or even to attempt to distinguish the numerous California federal district court cases which have clearly held that punitive damages sought in a class action cannot be aggregated to meet the jurisdictional minimum"; "federal courts are required to include potential punitive damages, as well as pecuniary damages, in determining the amount in controversy when punitive damages are permitted by statute ÷ [however,] several California district courts have squarely faced the issue and have held that punitive damages sought in a class action cannot be aggregated"; attorneys fees not aggregable: "plaintiffs now seek to recover attorneys' fees under California Code of Civil Procedure section 1021.5 ÷ [and] defendants assert that the Fifth Circuit's decision in Abbott, allowing the aggregation of attorneys' fees and attributing it entirely to the named plaintiffs, compels the conclusion that attorney's fees under section 1021.5 must be attributed solely to the named plaintiffs ÷ California district courts, however, have rejected similar arguments")

Navarro-Rice v. First USA Bank, 984 F. Supp. 1312 (D. Ore. 1997) (Frye, J) (Zahn still valid: "[i]n 1973, the United States Supreme Court held that each plaintiff in a class action must satisfy the amount in controversy, and any plaintiff who does not must be dismissed ÷ [t]he Judicial Improvements Act of 1990 gave district courts supplemental jurisdiction over claims that are so related to claims within the jurisdiction of the court that they form the same case or controversy ÷ [and while] [e]xceptions to supplemental jurisdiction are given ÷ [they] do not include class actions ÷ [such that] [s]ome courts have held that the Judicial Improvements Act of 1990 overruled Zahn and allows the court to exercise supplemental jurisdiction over members of a class even if they do not meet the amount in controversy requirement, as long as the class representative meets the requirement ÷ based on the interest rate being charged by First USA and the fact that Navarro-Rice's credit card expires in March of 1999, she estimates that the amount of overcharged interest, and thus the amount in controversy, is approximately $1,000"; "First USA contends that the value of the injunction to Navarro-Rice is the cost of litigating each case individually, which First USA estimates to exceed $75,000 ÷ [but] [t]his argument must fail ÷ Navarro-Rice is the plaintiff in this case ÷ [and] [i]f this action saves litigation costs for another customer of First USA who will benefit from any injunction entered against First USA, that benefit is not of monetary value to Navarro-Rice"; no common and undivided interest in attorney's fees: "First USA next contends that attorney fees should be attributed entirely to Navarro-Rice and not attributed pro rata to all of the class members because Navarro-Rice is not requesting attorney fees but instead is contending that a benefit of the injunction will be the prevention of a multiplicity of lawsuits ÷ First USA further contends that attorney fees can be aggregated because there is a common and undivided interest among the class members ÷ [t]o determine if the plaintiffs share a common and undivided interest, the court must examine the source of the claims ÷ [since] '[i]f the claims are derived from rights that they hold in group status, then the claims are common and undivided ÷ [i]f not, the claims are separate and distinct' ÷ [h]ere, the plaintiffs have similar, but distinct, breach of contract and fraud claims ÷ [t]he interests of the plaintiffs are not common and undivided and, thus, it would be wrong to attribute all of the attorney fees to the named plaintiff ÷ [w]hen considering the amount in controversy under Ninth Circuit law, attorney fees in a class action generally are not attributed to the named plaintiff only but are divided pro rata among the plaintiffs ÷ [and] [a]ccordingly, Navarro-Rice's share of attorney fees in a putative class of 100,000 plaintiffs would not be greater than the amount in controversy"; plaintiff's viewpoint required in class action context: "[i]n the alternative, First USA asks the court to consider the cost of injunctive relief to the defendants, rather than the benefit to Navarro-Rice ÷ contend[ing] that it would lose revenue of approximately $1,000 from each of the 100,000 putative plaintiffs, in addition to paying approximately $100,000 to notify all class members of the changes in the terms of the account ÷ [but] [t]he United States Court of Appeals for the Ninth Circuit, however, has not abandoned analyzing the amount in controversy from the plaintiff's viewpoint")

Haisch v. Allstate Insurance Co., 942 F. Supp. 1245 (D. Ariz. 1996) (Silver, J) (plaintiff's viewpoint required in class action context: "[w]ith respect to Plaintiff's request for injunctive relief, she merely seeks that Defendant 'cease and desist from engaging in the conduct' ÷ [b]ecause the Ninth Circuit has firmly rejected the examination of the potential detriment accruing to Defendant as a result of the equitable relief sought ÷ this Court must examine the potential benefits arising out of the injunctive relief that might accrue in favor of Plaintiff and the class"; no aggregation of punitive damages: "[w]ith respect to the class members' claims for punitive damages ÷ Defendant alleges that extraordinarily large punitive damages awards have been awarded against insurance companies in cases involving fraud ÷ [and] contends that its wealth and financial resources vastly increase the likelihood that a potential punitive damages award would be 'considerable' ÷ [i]n essence, Defendant states that merely because extraordinary punitive damages have been awarded in similar cases and the size of its financial resources constitute sufficient evidence that the amount in controversy requirement in the instant case has been met for Plaintiff and each of the class members ÷ [but] [t]his Court disagrees ÷ [as doing so] would be inherently speculative ÷ [e]ven if this Court were to [do so], Defendant has failed to set forth any case authority indicating that a punitive damages award large enough to meet the jurisdictional requirements of each of the class members here can be or has been rendered in Arizona or any other jurisdiction ÷ [t]o illustrate, Plaintiff contends that the putative class in this action could be comprised of 100,000 members ÷ [thus,] [i]n order for an award of punitive damages to satisfy, by itself, the jurisdictional requirements for 100,000 class members, the punitive damages award would have to be approximately $5.0 billion dollars"; "[i]n Snyder ÷, the Supreme Court reaffirmed the doctrine that separate and distinct claims of two or more plaintiffs cannot be aggregated in order to satisfy the jurisdictional amount requirement ÷ not[ing], however, that aggregation has been permitted in two situations: (1) 'in cases in which a single plaintiff seeks to aggregate two or more of her own claims against a single defendant,' and (2) 'in cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest' ÷ [here,] Defendant argues that each of the class members' claims for punitive damages meet the amount in controversy requirement if aggregated ÷ [i]n support, Defendant relies primarily upon Allen v. R & H Oil & Gas Co ÷ and Tapscott ÷ [but] [t]his Court declines to follow Allen and Tapscott for several reasons ÷ [f]irst, under Ninth Circuit law, claims constitute a common and undivided interest only if the plaintiffs derive such claims from rights held in group status ÷ [b]ecause neither of the courts in Allen and Tapscott applied the group status test as a relevant factor to be considered in determining whether claims constitute a common and undivided interest, those cases are in conflict with the relevant inquiry mandated by the Ninth Circuit ÷ [s]econd, in the instant case, each class member's claim for punitive damages is derived from conduct on the part of Defendant that allegedly injured each class member separately and individually ÷ [and] [e]ach class member could have advanced a separate punitive damages claim in a separate lawsuit without affecting the class claim"; no aggregation of attorneys' fees: "[t]hird, though the Ninth Circuit has not addressed the specific issue of whether punitive damages constitute a common and undivided interest that can be aggregated for jurisdictional purposes ÷ the Ninth Circuit has held in Goldberg v. CPC Int'l, Inc., ÷ that attorney's fees should not be aggregated to meet the amount in controversy requirement in a class action despite the contention that the potential fees should be treated as a common fund ÷ [and] [c]ontrary to Defendant's assertion, it is reasonable to construe Goldberg as not 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' ÷ [a]pplying this construction of Goldberg to the instant case, this Court is justified in concluding that the Ninth Circuit, in all likelihood, would not allow the aggregation of the putative class's punitive damages claims for the purpose of establishing diversity jurisdiction ÷ [f]ourth, the overwhelming majority of district courts within the Ninth Circuit have refused to aggregate punitive damages for the purpose of meeting the amount in controversy jurisdictional requirement in putative class actions ÷ [f]ifth, the implications of Allen and Tapscott appear to conflict with the purpose of requiring the minimum amount in controversy ÷ [as] [e]xtending the exception to the non-aggregation rule would allow practically any sizeable class of plaintiffs to invoke diversity jurisdiction regardless of how miniscule their claims might be ÷ [t]herefore, because there is little doubt from the allegations in the Complaint that the members of the putative class here have brought their claims together in a single suit for convenience and economy÷ and not because their claims derived from rights held in group status, this Court finds that Defendant cannot aggregate the punitive damages claims of the class members in order to satisfy the amount in controversy requirement")

DeVries v. United Airlines, 1995 WL 573684 (N.D. Cal. Sept. 12, 1995) (Patel, J) (plaintiff's viewpoint required in class action context: "[b]efore determining the scope of the burden of demonstrating the amount in controversy on a defendant seeking to remove an action to federal court, this court must ask the preliminary, and potentially dispositive, question of how the amount in controversy is to be framed ÷ [t]here now exist at least three alternatives ÷ [a]ccording to the 'plaintiff viewpoint' rule courts should look only to the benefits that will accrue to the plaintiff in calculating the amount in controversy ÷ [u]nder the 'either viewpoint' rule a court can find federal jurisdiction if either the value to plaintiffs or the cost to defendant exceeds $50,000 ÷ [and] [a] third approach calculates the amount in controversy from the point of view of the party seeking federal jurisdiction ÷ [t]he Ninth Circuit has come as close as any jurisdiction to adopting a strong version of the 'plaintiff viewpoint' rule which may preclude consideration of the costs that would incur to defendant if an injunction were issued ÷ [therein,] [t]o Ford's argument that enjoining its advertising affected the 'single right of a single defendant,' the Court countered that 'the proper focus in this case is not influenced by the type of relief requested, but rather continues to depend upon the nature and value of the right asserted' ÷ [t]he right, the Court goes on to note, is that asserted by plaintiff ÷ [n]ot only does Snow suggest a broad application of the 'plaintiff viewpoint' rule, but it has been followed by lower courts to support that proposition")

10. Tenth Circuit

No "Common and Undivided Interest": Martin; Aetna Kansas; Harris

Punitive Damages/Attorneys' Fees Not Aggregable: Martin; Aetna Kansas

Plaintiff's Viewpoint Required in Class Action: Aetna Kansas; Harris

Supplemental Jurisdiction under ? 1367 Not Available: Leonhardt

Martin v. Franklin Capital Corp., 251 F.3d 1284 (10th Cir. 2001) (Seymour, J w/ Murphy and Kane, JJ) (no aggregation of punitive damages: "all of the circuits considering the issue now hold that punitive damages cannot be aggregated and attributed in total to each member of a putative class for purposes of satisfying the amount?in?controversy requirement of diversity jurisdiction"; "we now hold, in light of the language in Leonhardt [v. Western Sugar Co., 160 F.3d 631, 637 (10th Cir. 1998)] and the analysis of our sister circuits, that punitive damages may not ordinarily be aggregated and attributed in total to each member of a putative class for puposes of satisfying diversity jurisdiction"; no common interest: "[a]lthough this court has not ruled directly on the matter, we have pointed out that the Supreme Court has historically interpreted section 1332 'to require plaintiffs who have separate and distinct claims, but unite together in a single suit, to each meet the jurisdictional amount in controversy' ÷ we now hold, in light of the language in Leonhardt and the analysis of our sister circuits, that punitive damages may not ordinarily be aggregated and attributed in total to each member of a putative class for purposes of satisfying diversity jurisdiction ÷ [b]ecause a class member's right to punitive damages is separate, distinct, and independent from those of other class members, the class claim for such damages does not seek to enforce a single right in which the class has a common and undivided interest ÷ [and] [p]unitive damages therefore may not be aggregated in a class action and attributed in total to each member of the class"; attorneys' fees not aggregable: "[c]ourts have generally held, under the same rationale applied to preclude the aggregation of punitive damages, that attorneys fees cannot be aggregated for purposes of diversity jurisdiction ÷ [w]e agree and conclude that potential attorneys fees requested on behalf of the class may not be aggregated and attributed entirely to the Martins in assessing whether they meet the amount in controversy", although "[t]he result might be different if the state statute under which fees are sought expressly awards those fees solely to the class representatives"; Defendants here "have made no showing that the statutes at issue in this case do so")

Leonhardt v. Western Sugar Co., 160 F.3d 631 (10th Cir. 1998) (Anderson, J w/ Porfilio and McWilliams) (Zahn still valid: "under the historical interpretation of ? 1332, any plaintiff in a diversity class action-whether class representative or putative class member-who does not meet the jurisdictional amount in controversy must be dismissed from the action, and if no plaintiff can meet the amount in controversy, the entire class action must be dismissed ÷ [t]he named plaintiffs conceded in the district court that an 'aggregation theory based upon the 'common undivided interest and single title' analysis is unlikely to apply' ÷ [t]hey argue, however, that so long as one class representative meets the jurisdictional amount in controversy, the plain language of 28 U.S.C. ? 1367(a) permits the district court to exercise supplemental jurisdiction over all the other plaintiffs' claims ÷ [i.e.,] the enactment of ? 1367 had the effect of overruling Zahn 's requirement that each member of a plaintiff class meet the jurisdictional amount in controversy ÷ [so] if Rodriquez Farms can meet the $75,000 jurisdictional amount in controversy, the court can exercise supplemental jurisdiction over the claims of the other class representatives and putative class members, even though none of them can meet the jurisdictional amount in controversy ÷ [w]hether ? 1367 permits such an exercise of supplemental jurisdiction in a class action is a question of first impression for this court ÷ [and we] conclude, from both an analysis of the language of ? 1367 itself and from its legislative history, that the enactment of ? 1367 did not overrule Zahn 's holding that each plaintiff in a diversity-based class action must meet the jurisdictional amount in controversy under ? 1332")

Aetna U.S. Healthcare, Inc. v. Hoechst AG, 54 F. Supp. 2d 1042 (D. Kan. 1999) (Vratil, J) ("Aetna Kansas") (Zahn still valid: "[d]efendants argue that if the named class representative meets the amount in controversy requirement, the Court can exercise supplemental jurisdiction under 28 U.S.C. ? 1367 ÷ [t]he Tenth Circuit, however, [has] held exactly [the] opposite ÷ [c]onsequently, each class member must satisfy the amount in controversy requirement"; no common and undivided interest in disgorgement funds: "[p]laintiffs allege that each class member has suffered damages under $75,000, and the Court generally cannot aggregate the claims of class members to meet the amount in controversy requirement ÷ [d]efendants therefore argue that the Court should aggregate the claims of individual class members because they seek to 'enforce a single title or right in which they have a common and undivided interest' ÷ [but] [a]s the Court has previously stated, to establish a common and undivided interest, defendants must show that the claims of the putative class members derive from rights which they hold in group status ÷ [i]n other words, a class has a common and undivided interest 'where only the class as a whole is entitled to the relief requested' ÷ [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 mean that their rights are held in group status ÷ [and] [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 ÷ Andrx first argues that in seeking disgorgement, plaintiffs assert a single right in which the class has a common and undivided interest ÷ bas[ing] its argument on plaintiffs' second and third claims for relief, where plaintiffs seek disgorgement of the entire fund, i.e. 'all monies' that HMR paid to Andrx under the wrongful stipulation and all monies that HMR made through its entire course of conduct ÷ [b]ecause many plaintiffs have brought similar claims against defendants, other courts have recently had occasion to decide the issue that this case now raises ÷ [with] [a]ll but one ÷ f[inding] that similar disgorgement claims constitute an undivided interest among plaintiffs"; "[t]he Court respectfully declines to follow those holdings which have found that plaintiffs assert a common and undivided interest ÷ [t]he fact that plaintiffs seek disgorgement of the entire fund is not dispositive of the issue ÷ [and] '[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' ÷ [i] n the only published decision which addresses this issue, ÷ the District of Columbia court determined that plaintiffs' claim for disgorgement involved a common and undivided interest because plaintiffs requested disgorgement of the entire unjust enrichment to defendants-the stipulation funds ÷ focus[ing] on the fact that plaintiffs' disgorgement claim only alleged wrongful conduct by defendants; the claim did not tie this conduct to individual legal rights ÷ [likewise, here] Aetna does not expressly identify the source or the nature of the individual rights that would justify its prayer for disgorgement ÷ [but] [t]his fact does not necessarily mean, however, that plaintiffs' claims are necessarily based on a collective right ÷ [as] [i]t could mean that plaintiffs do not have rights which entitle them to disgorgement or that plaintiffs have simply failed to properly identify those rights which they possess ÷ [h]ere, plaintiffs' second and third claims are completely silent as to what gives them any rights to disgorgement of the entire claim ÷ [and while] [t]he D.C. court apparently had the view that defendants' unjust conduct gave plaintiffs the right to bring suit for disgorgement without any injury to plaintiffs ÷ [t]o receive equitable relief ÷ it is not enough that plaintiffs simply show inequitable conduct by defendants"; "[a]n action for disgorgement is a remedy only for restitution ÷ [and] [r]estitution is limited to 'restoring the status quo and ordering the return of that which rightfully belongs' to plaintiffs ÷ [t]o prevail on a claim of unjust enrichment, plaintiffs must have conferred a benefit upon defendant ÷ [so that] [i]n short, plaintiffs must show some connection to the inequitable conduct which they allege ÷ [i]n this case, that conduct is demonstrated by the allegation that each individual class member made overpayments to HMR"; "[w]hile defendants argue that the class has an undivided interest in all of the stipulation monies, they have not credibly demonstrated that their position is correct ÷ [c]lass members did not make overpayments as a group; each member made separate, distinct and individual payments to HMR ÷ [and] [e]ach member can only recover to the extent of his or her overpayment ÷ [since] '[a]bsent unusual circumstances, unjust enrichment remedies do not provide a generalized recovery of a fixed fund for the class ÷ [i]nstead, each plaintiff is entitled to the defendants' profits which resulted from the wrongdoing to that particular plaintiff' ÷ [and] '[t]o the extent possible, disgorged funds should be apportioned among the individual claimants rather than being treated as a single collective right in which putative class members have an undivided interest' ÷ [m]oreover, proration of the funds appears to be feasible in this case ÷ [i]n short, simply because plaintiffs request the remedy of 'all monies' does not establish that the right which they seek to enforce is a collective right ÷ [t]he underlying right which each plaintiff seeks to enforce is his or her individual right to collect any overpayment to defendants ÷ [c]lass members made these payments individually, not as a group ÷ [and] [p]rior to litigation, no group status or common interest was involved ÷ [e]ach consumer could have brought a separate and individual claim to recover the benefits which he or she unjustly conferred upon defendants; relief was not and is not limited to the class as a whole ÷ [and] because members only have the right to recover their own overpayments, one plaintiffs share is not increased if another plaintiff cannot or does not bring suit"; plaintiff's viewpoint required in class action context: "[p]laintiffs seek injunctive relief which invalidates the stipulation agreement and enjoins HMR's renunciation of the letter of reference to Biovail ÷ Andrx argues that the Court should find that the amount in controversy requirement is satisfied, by considering the cost of injunctive relief to defendants, instead of its value to each class member ÷ [but while] [t]he Court can rely on either the cost of injunctive relief to defendant or the value of injunctive relief to plaintiffs ÷ where class members have separate and distinct claims for injunctive relief, those claims may not be aggregated to meet the jurisdictional amount and 'it would be improper to look to defendants' total detriment' in determining the amount in controversy ÷ Andrx apparently views the injunctive relief as the common and undivided right of the class members ÷ [but] we must look at the nature of the right asserted, not the nature of the relief requested ÷ [and] [p]laintiffs base their claims for injunctive relief upon individual overpayments by class members ÷ [n]o group right or interest forms the basis for the requested injunctive relief ÷ [and no] [c]lass members did not possess rights in common before they filed suit, and they could have sued individually to secure the injunctive relief which they request ÷ [b]ecause class members do not have a common interest, the Court must distribute the litigation costs among them in determining the amount in controversy"), reconsideration denied, 67 F. Supp. 2d 1242 (D. Kan. 1999)

Harris v. Nationwide Insurance Co., 78 F. Supp. 2d 1215 (D. Utah 1999) (Kimball, J) (no common and undivided interest: "Plaintiffs assert that the fact that payment to a common fund is requested is irrelevant inasmuch as each class member's interest in any future judgment is separate and unique and based on an individual contract for insurance ÷ [and] assert further that it is not reasonable to anticipate that any single plaintiff's claim will exceed $75,000 inasmuch as, by definition, a plaintiff cannot be a member of the class if his or her medical expenses exceeded $3,000 ÷ [r]especting injunctive relief, Plaintiffs assert that ÷ Plaintiff also argues that [Justice v. Atchison, Topeka & Santa Fe R.R.] has been construed by other courts, including a district court in the Tenth Circuit, to allow courts to determine jurisdictional amounts from the defendant's perspective only in cases where aggregation of the underlying claims is allowed ÷ [t]his Court agrees with Plaintiffs that aggregation of their claims is inappropriate given the allegations made by Plaintiffs in their complaint ÷ [as] [t]he fact that each individual's contractual rights depend on the same question of statutory construction does not give rise to the kind of common interest required to exist before aggregation is appropriate"; no aggregation of punitive damages: "[a]ggregation of Plaintiffs' punitive damage claims is also inappropriate-such claims are properly aggregated only when the underlying claims are appropriately aggregated ÷ Justice does state that the amount in controversy in injunction cases may be established by examining the defendant's cost of complying with the injunction ÷ [but] Amundson, thoughtfully and persuasively, refused to apply Justice in the way urged by Defendant on the ground that the statement in Justice is too terse to have precedential value and on the ground that applying the opinion as urged would conflict with clear legal principles that have developed in this area"; "[f]inally, the fact that a plaintiff seeks disgorgement is not by itself determinative of whether aggregation is appropriate ÷ [since] [a] federal court must look further to determine whether 'the disgorgement remedy would inure to the benefit of the class rather than vindicate any alleged violations of individual rights' ÷ [and] [i]t is clear from paragraph 68 of Plaintiffs' complaint that Plaintiffs are seeking payment of their individual insurance claims that they allege were illegally withheld ÷ [w]ithout aggregating, this Court is without a basis to find that any single Plaintiff's claim satisfies the jurisdictional threshold")

11. Eleventh Circuit

No "Common and Undivided Interest": Smith; Morrison; Darden; Cohen II; Kline; Kirkland v. Montgomery Ward; Parham; Shelly; Indianer

Punitive Damages/Attorneys' Fees Not Aggregable: Smith; Morrison; Kirkland v. Midland; Darden; Cohen II; Kline

Plaintiff's Viewpoint Required in Class Action: Smith; Morrison; Cohen II; Kline; Shelly

Supplemental Jurisdiction under ? 1367 Available: Poore, Leszczynski

Smith v. GTE Corp., 236 F.3d 1292 (11th Cir. 2001) (Carnes, J, w/ Barkett & Pollak, JJ) (no aggregation of punitive damages: "[r]egarding the amount in controversy requirement, the plaintiffs allege in their complaint the following: 'Although the actual damages claimed by the named Plaintiffs are less than $75,000.00, Plaintiffs also claim punitive damages against GTE ÷ [t]herefore, the matter in controversy exceeds, exclusive of interest and costs, the sum of $75,000.00' ÷ [i]n making this allegation, the plaintiffs appear to have relied on this Court's holding in Tapscott ÷ that a class claim for punitive damages under Alabama law could be viewed in the 'aggregate' for amount in controversy purposes, which meant that the amount of punitive damages claimed could be attributed in toto to each member of the class in order to establish diversity jurisdiction over the claims of the entire class ÷ [h]owever, after the district court in this case dismissed the plaintiffs' suit and they appealed, this Court decided ÷ Cohen II, [wherein] we held that a prior panel decision by the Former Fifth Circuit, Lindsey v. Alabama Tel. Co. ÷ precluded aggregating punitive damages to establish diversity jurisdiction over a class action, and that decision is to be followed notwithstanding a contrary holding by the subsequent panel in Tapscott"; accord between Fifth and Eleventh Circuits on aggregation of punitive damages: "[r]ecently, in H & D Tire and Automotive-Hardware, Inc. v. Pitney Bowes, Inc. ÷, the Fifth Circuit addressed a similar conflict between Lindsey and the subsequent panel decision in Allen v. R & H Oil & Gas Co. ÷ [c]oncluding that the result in Lindsey implicitly requires that a class claim for punitive damages be distributed pro rata among the class members for amount in controversy purposes, which is the same conclusion we reached in Cohen II, the Fifth Circuit in Pitney Bowes adhered to the prior panel precedent rule and held that a class claim for punitive damages could not be viewed in the aggregate to satisfy the requisite amount in controversy ÷ [i]n other words, the Fifth Circuit in Pitney Bowes reached the same conclusion about Lindsey that we did: Lindsey establishes binding circuit law against aggregation of punitive damages for amount in controversy purposes"; no aggregation of attorneys' fees; no common and undivided interest in attorney fees: "[i]n this case, the plaintiffs argue that they will be entitled to an award of attorney's fees under either the common fund doctrine or the common benefit doctrine ÷ [i]n Davis, a diversity suit involving Alabama state law, this Court held that a requested award of attorney's fees deducted from the recovery of a common fund could not be viewed in the aggregate to satisfy the amount in controversy requirement for a class action ÷ [t]hus, if the common fund doctrine applies, the estimated amount of attorney's fees in this case, like the claim for punitive damages, must be divided pro rata among each class member"; alternatively, "plaintiffs allude to the common benefit doctrine as the basis for their attorney's fees claim by requesting 'a reasonable attorney's fee for the Plaintiffs for securing relief which will benefit the general public and a large group of persons' ÷ [a]ccording to the plaintiffs, their lawsuit against GTE will produce the type of public benefit for which Alabama courts have awarded attorney's fees under the common benefit doctrine because, they say, their lawsuit will: (1) enjoin GTE's alleged practice of targeting minorities, the elderly, the poor, and similar demographic groups for its deceptive leasing scheme; (2) enjoin unlawful practices affecting all of the residents of communities in which GTE exercises a monopoly on telephone service; and (3) determine if, and to what extent, the APSC has retained the authority to supervise or regulate the CPE activity of telecommunications providers ÷ [i]t follows, according to the plaintiffs, that their suit will result in substantial benefits to a large group of persons, thereby justifying an award of common benefit attorney's fees ÷ [however] the purpose of the common benefit doctrine is to spread the cost of the litigation, including attorney's fees, among those who have benefitted from the litigation ÷ [i]t is not so much fee-shifting as fee-spreading ÷ [t]his fee-spreading is accomplished, in the case of a corporate defendant in a derivative suit, by assessing costs against the defendant corporation directly, because those costs are, in effect, incurred by the shareholder/beneficiaries ÷ Fee-spreading in such circumstances comports with the underlying purpose of both the common fund and common benefit doctrines, which 'is not to saddle the unsuccessful party with the expenses but to impose them on the class that has benefitted from them and that would have had to pay them had it brought the suit' ÷ [t]hus, under the common benefit doctrine, the focus is on the nature of the relationship between the defendant and the class members, or, in the absence of a certified class, those individuals who can be said to benefit from the litigation ÷ [under] the facts of our case, the relationship between GTE and the proposed beneficiaries of this lawsuit does not warrant application of the common benefit doctrine ÷ [i]mposing on GTE litigation costs, including attorney's fees, would not operate to spread those costs among the purported beneficiaries of the litigation, the class members ÷ [and] we conclude that any award of attorney's fees in this case would be paid out of the common fund created by the litigation and not by GTE on the basis of a common benefit theory ÷ [a]n award of common fund attorney's fees may not be viewed in the aggregate ÷ and from that it follows the requested attorney's fees in this case do not establish the requisite amount in controversy for diversity jurisdiction"; plaintiff's viewpoint required in class action context: "[f]or amount in controversy purposes, 'the value of the requested injunctive relief is the monetary value of the benefit that would flow to the plaintiff if the injunction were granted' ÷ [here,] [e]ssentially, the monetary value of the injunction to the plaintiffs is the present value of the future lease charges that the class members could avoid by being clearly informed of the allegedly excessive cost of those charges and of the fact that continuation of their telephone service is not contingent on paying those charges ÷ [such that] [a]s to any individual class member, that monetary benefit would be well below $75,000")

Morrison v. Allstate Indemnity Co., 228 F.3d 1255 (11th Cir. 2000) (Carnes, J, w/ Hill & Kravitch, JJ) (interest in contract claims not "common and undivided": "both the breach of contact claims and unjust enrichment claims are based on the theory that the class members have paid premiums for diminished value coverage which the defendants have not provided ÷ and thus, the defendants have been unjustly enriched ÷ [and][t]he fact that the breach of contract claim asserted on behalf of the Policyholder Class is alternatively characterized as one for unjust enrichment does not ÷[matter, since] [f]or amount in controversy purposes ÷ it is the nature of the right asserted, not that of the relief requested, that determines whether the claims of multiple plaintiffs may be aggregated ÷ [here,][t]he members of the Policyholder Class are asserting rights arising from their individual insurance policies, and if successful, they will recover the amount of excessive premiums each paid under his own policy ÷ [t]he fact that this recovery may be obtained under an equitable theory of unjust enrichment does not convert separate and distinct claims for damages into a fund in which the class members have a common and undivided interest. punitive damages not aggregable: "the amount of punitive damages must be divided equally among all of the class members to determine the proper amount in controversy for each member ÷ [i]n the present case, the complaint alleges [only] that the size of the Policyholder Class 'exceeds one million' and maintains that the size of the Damaged Vehicle Subclass is also 'large' ÷ [such that] even if the plaintiffs were able to amend their complaint and plead a substantial sum of punitive damages on remand, the pro rata amount of those damages for such a large class and subclass would have little effect on establishing the requisite amount in controversy ÷ [since, e.g.], with the Policyholder Class exceeding one million members, a 'good faith' punitive damages claim of one hundred million dollars would amount to less than a $100 for each member of the class ÷ [and] [e]ven a one billion dollar punitive damages claim, which could hardly be asserted in good faith, would amount to less than $10,000 for each class member"; attorneys' fees not aggregable: plaintffs indicated that they would petition for attoney fees if successful, and "on the question of whether a claim for statutory attorney's fees may be aggregated in a class action, two recent decisions by this Court indicate the answer is 'no' ÷ [i]n Cohen II, we read Darden-the first case in our Circuit to address the issue-to preclude aggregation of a statutory award of attorney's fees when at least two factors were present: '(1) the class members have a 'separate and distinct' right to recover attorney's fees under the relevant statute; and (2) state law provides that the ... fees serve to compensate the class members for their injuries' ÷ [and] the Florida Supreme Court has noted, 'Florida courts have consistently held that the purpose of section 627.428 and its predecessor is to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney's fees when they are compelled to defend or sue to enforce their insurance contracts' ÷ [a]s a result, we must take it as given that one of the principal objectives of ? 627.428 is to compensate the insured for the expenses of litigating a dispute over the terms of an insurance policy ÷ [such that] while the attorney's fees awarded under ? 627.428 serve punitive and deterrent purposes, they also 'serve a significant compensatory purpose' ÷ [m]oreover, even if the sole purpose of ? 627.428 were punitive in nature, meaning that the second factor in Darden was not present, aggregation would not necessarily be permissible ÷ [since] we think it apparent from Snyder, as well as from the Supreme Court cases applying the aggregation standard, that the first factor in Darden-whether the plaintiffs have separate and distinct rights to recover the attorney's fees-remains the paramount issue with respect to the aggregation of attorney's fees, as it is with respect to the aggregation of any claim ÷ [and] the rights of class members to recover attorney's fees are separate and distinct whenever each class member is individually entitled to recover attorney's fees under the relevant statute ÷ [thus,] a necessary corollary to the reasoning in Darden is that each class member has a separate and distinct right to statutory attorney's fees, thus precluding aggregation, whenever each class member could recover attorney's fees if he sued individually"; plaintiff's viewpoint used to value injunctive relief: "[f]or amount in controversy purposes, the value of injunctive or declaratory relief is the "value of the object of the litigation' measured from the plaintiff's perspective ÷ '[i]n other words, the value of the requested injunctive relief is the monetary value of the benefit that would flow to the plaintiff if the injunction were granted' ÷ [i]n this case, the requested injunction essentially requires the defendants to compensate the class members for diminished value on any future damaged vehicle claims and to inform the class members of their entitlement to this compensation ÷ [i]f this injunction were issued, the benefit obtained by the members of the Policyholder Class would be the payment of any future claims for diminished value, at least for as long as the policies at issue remain in effect, and thus, the value of the injunction would be the present value of those future payments"; interest in equitable relief not "common and undivided: "aggregation is determined by the right asserted, not the relief requested ÷ [a]ccordingly, when an injunction protects rights that are separate and distinct among the plaintiffs, the value of the injunction to the individual plaintiffs may not be aggregated to sustain diversity jurisdiction ÷ [t]his rule against aggregating the value of an injunction where it protects rights that are separate and distinct among the plaintiffs clearly applies to the claims of insureds who sue to enforce the separate and distinct rights arising from their respective insurance policies with an insurer ÷ [a]nd thus, for purposes of aggregation, it is irrelevant that multiple insureds choose to remedy the alleged violation of their separate and distinct rights through a joint request for injunctive or declaratory relief"; here, "the rights asserted arise from the class members individual insurance policies with one of the defendants, and the requested injunction seeks to protect against future violations of those individual rights ÷ [and][t]hus, the claims for injunctive relief are separate and distinct, and they may not be aggregated to establish the requisite amount in controversy")

Darden v. Ford Consumer Finance Company, Inc., 200 F.3d 753 (11th Cir. 2000) (Hull, J, w/ Birch & Hodges, JJ) (attorneys' fees not aggregable: "the sole jurisdictional issue ÷ is whether all of the Plaintiffs' shares of any potential attorneys' fees awarded under Georgia's RICO statute may be aggregated to satisfy the amount-in-controversy requirement for diversity jurisdiction ÷ [since] the Supreme Court [has] held that aggregation is permissible to meet the amount-in-controversy requirement where 'two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest' ÷ [and][t]his Court has held that "[t]he corollary" to this holding "is that 'separate and distinct' claims may not be aggregated to satisfy the jurisdictional requirement ÷ this Court's inquiry focuses on whether an attorneys' fee award under the applicable state law represents a single title or right in which all plaintiffs have a common and undivided interest or a separate and distinct claim of each plaintiff"; therefore, "we look to Georgia law and the nature and purpose of the attorneys' fees award under Georgia's RICO statute ÷ [and find that] Georgia's RICO statute ÷ gives each individual plaintiff in a putative class the right to recover attorneys' fees in the case ÷ [t]hus, the plain language of section 16-14-6(c) makes it clear that the statutory award of attorneys' fees represents a separate and distinct interest awarded to compensate each injured plaintiff individually"; Abbott Labs distinguished: while "Defendants contend that we should adopt the analysis of the Fifth Circuit in In re Abbott Laboratories ÷ and permit the aggregation of attorneys' fees for jurisdictional purposes in this case ÷[their] reliance on ÷ [this case] is unavailing ÷ [since there], the court aggregated attorneys' fees for jurisdictional purposes because the Louisiana statute in question specifically authorized awards of attorneys' fees to the 'class representative' ÷ [while] [i]n contrast, Georgia's RICO statute does not contain this class language but refers to the individual person who is injured"; attorney fees not aggregable; aggregation of attorney fees a question of state law: "Georgia case law provides that the purpose and nature of statutory awards of attorneys' fees under Georgia law is to compensate the individual injured plaintiff ÷ [and][t]hough awards of litigation expenses and attorney fees may often have a somewhat punitive effect on the party against whom they are awarded, to punish or penalize is not their purpose ÷ [m]ore specifically, the Georgia Supreme Court has stated that the purpose of the award of attorneys' fees under Georgia's RICO statute is to compensate civil plaintiffs ÷ [therefore,][a]fter review, we hold that each Plaintiff's share of the attorneys' fees recoverable under Georgia's RICO statute may not be aggregated to satisfy the amount-in-controversy requirement because under Georgia law each individual"), reh'g and reh'g en banc denied, 211 F.3d 596 (11th Cir. 2000)

Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000) ("Cohen II") (Carnes, J, w/ Birch & Mills, JJ) (punitive damages not aggregable: "fifteen years after the split [creating the Eleventh Circuit], this Court decided Tapscott v. MS Dealer Service Corp. ÷ mistaken[ly] consider[ing] the matter as one of first impression ÷ [therein] we let the whole amount of a punitive damages claim be used by each class member for ÷ purpose [of determining the amount in controversy], a result inconsistent with the decision in Lindsey almost twenty years earlier"; "Lindsey inescapably stands for the proposition that a federal court cannot exercise diversity jurisdiction over a class action ÷ solely because the total punitive damages claim on behalf of the entire class exceeds the jurisdictional amouint in controversy"; plaintiff's viewpoint used to value injunctive relief: "this lawsuit seeks to enjoin Office Depot from engaging in unfair and misleading advertising ÷ [and] [w]hen a plaintiff seeks injunctive or declaratory relief, the amount in controversy is the monetary value of the object of the litigation from the plainitff's perspective ÷ [but here] we doubt that any monetary value at all would accrue to the class ÷[t]he remote possibility ÷ that monetary value might somehow flow to the class ÷ is 'too speculative and immeasurable to satisfy the amount in controversy requirement' ÷ [and] the injunctive relief ÷ involves too many contingencies ÷[to allow] a reasonable monetary estimate"; attorneys fees not aggregable: "[i]f this class action were successful on the merits, the entire class of plaintiffs-not just Cohen-would 'prevail' in the action, and accordingly it is the class and not just Cohen who would recover attorney fees under the statutes ÷ [plaintiff's] citation to In re Abbott Labs. ÷ is inapposite ÷ [since,] [u]nlike the statute in Abbott, the Florida statutes at issue here do not contain languiage indicating that the award of attorney fees should go to the class representatives ÷ [i]n addition, as an individual class member, Cohen stands to recover no more than $260 in damages ÷ [while] indicat[ing] that over $100,000 in reasonable attorney fees would be incurred ÷ [a]ttributing to one plaintiff an anticipated attorney fee award that is over 384 times greater than that plaintiff's stake in the litigation could raise serious questions about the reasonableness of the fee award"), cert. denied, 121 S. Ct. 381 (2000)

Kirkland v. Midland Mortgage Co., 243 F.3d 1277 (11th Cir. 2001) (Anderson, J, w/ Marcus & Kravitch, JJ) (punitive damages not aggregable: defendant "argues that the instant case is governed by Georgia law, and that the nature of punitive damages under Georgia law is materially different from that under the laws of Alabama and Florida", but "[w]e reject this argument", because "[t]he only aspect of Georgia law to which Midland points as being different is that a Georgia defendant would not be concerned with the division of a potential damages award"; "[t]he same was true under Alabama law, ÷ and ÷ the binding Lindsey case establishes that there can be no aggregation of Alabama punitive damages"; "[l]ike the law in Florida and Alabama, the law of punitive damages in Georgia restricts the use of punitive damages to the deterrence and punishment of the defendant, not the compensation of the plaintiff"; "[f]or purposes of the aggregation issue, we hold that the nature of punitive damages under Georgia law is not materially different from that under the laws of Alabama and Florida, and thus we hold that the rule against aggregation of punitive damages established in Morrison and Cohen II applies also to Georgia punitive damages")

Kline v. Avis Rent-A-Car System, Inc., 66 F. Supp. 2d 1237 (S.D. Ala. 1999) (Vollmer, J) (defendant removed state court class action to federal court and plaintiffs remanded, showing that the jurisdictional amount was not met; attorney fees not aggregable: "Kline seeks the creation of a common fund for the purpose of recovering attorneys' fees ÷ [but] 'attorneys' fees are no more aggregable than the compensatory damages would be' ÷ [and] even if the fee were viewed as a lump sum payment, such a fee would not provide a collective benefit to the plaintiffs but would rather provide direct compensation to the lawyers" plaintiff's viewpoint used to value declaratory relief: "Avis argues that the value of the proposed declaratory relief is greater than $75,000 ÷ [but] Avis departs from the settled law of this Circuit in suggesting that the court should ÷ measure the value of declaratory relief actions" from the defendants', rather than the plaintiffs' perspective-"[t]hus, instead of demonstrating that a declaratory judgment ÷ would cost Avis more than $75,000, Avis must show that the value of every class member's claim exceeds $75,000"; interest in equitable relief not "common and undivided": "Avis contends that ÷ equitable remedies for unjust enrichment constitute a common and undivided interest and should thus be aggregated ÷ [but these remedies] 'do not provide a generalized recovery of a fixed fund for the class ÷ [rather], each plaintiff is entitled to the defendants' profits which resulted from the wrongdoing to that particular plaintiff")

Hooks v. Associates Financial Services Co., Inc., 966 F.Supp. 1098 (M.D. Ala. 1997) (Albritton, J) (Tapscott distinguished: "Defendants argue that the claims of the class members should be viewed in the aggregate, thereby reaching the jurisdictional amount ÷ [and] [a]lthough the Eleventh Circuit has recognized that aggregation of class damages may be appropriate in some instances, the Eleventh Circuit's holding was based on the nature of punitive damages under Alabama law and was limited to claims for punitive damages ÷ [here] [t]he Plaintiff has explicitly disclaimed any right to claim punitive damages ÷ [and] [t]herefore, the Defendant's argument under Tapscott is unavailing ÷ [i]n the absence of a claim for punitive damages, or some other assertion of a single title or right in which the multiple Plaintiffs have a common and undivided interest, claims of class members may not be aggregated in determining whether the jurisdictional amount has been met"; no aggregation of attorneys' fees: "Defendants also argue that attorneys' fees may be attributable to the entire class ÷ [i]n response, the plaintiff has stated that any 'recoverable attorneys' fees in this case would have to come out of any recovery by the Plaintiff or the class and would simply be a post?trial distribution of the limited damages recovered by the Plaintiffs' ÷ [and] Plaintiffs' position is supported by both Alabama and Eleventh Circuit law"; Abbott distinguished: "[i]n support of their argument that claims to attorneys' fees will meet the jurisdictional amount, the Defendants have cited In re Abbott Laboratories ÷ [but] this case does not support the Defendants' argument because the attorneys' fees at issue in that case would be awarded to the named plaintiff under a Louisiana statute which allows for attorneys' fees to be awarded to the class representative ÷ [while] [n]o claim for attorneys' fees has been asserted under a statute analogous to that of Louisiana in the instant case")

Leszczynski v. Allianz Ins. Co., 176 F.R.D. 659 (S.D. Fla. 1997) (Gold, J) (supplemental jurisdiction under ? 1367 available: "Whether section 1367 overruled Zahn has been the subject of much debate in the academic community and among the courts ÷ [and while] [t]he Eleventh Circuit has yet to rule on the issue ÷ [t]he two Circuits that have addressed the issue ÷ have held that section 1367 overrules Zahn ÷ [and] for essentially the same reasons set forth in Abbott and Stromberg, the Court holds that section 1367 overruled Zahn" claims within a complaint aggregable: "In 1969, the United States Supreme Court held that class plaintiffs cannot aggregate their individual claims in order to meet the jurisdictional dollar amount in controversy requirement of 28 U.S.C. section 1332 ÷ [and] [t]he effect of Snyder is to require at least one class plaintiff to meet the federal jurisdictional amount ÷ [h]eere, the named plaintiffs do not seek to aggregate their claims with the other named plaintiffs to reach the jurisdictional amount; rather, they seek to aggregate their own non?qualifying claims with their other claim in the same class action complaint which does exceed the jurisdictional limit ÷ [and] [t]he Court concludes that, under 28 U.S.C. section 1332(a), the named plaintiffs' claims in Counts I and III, which do not meet the threshold amount, may be aggregated with their claims in Count II which do meet the threshold amount, and it is not required that each such claim against a defendant exceed $75,000")

Kirkland v. Montgomery Ward & Co., Inc, 882 F. Supp. 1020 (M.D. Ala. 1995) (DeMent, J) (no common and undivided interest: "Defendants assert that the class has a collective interest in the creation of a fund sufficient to punish and deter Defendants' alleged misconduct ÷ [however,] [t]his court has consistently found that where the claims of putative class members arise from independent and separate wrongs aggregation is not appropriate ÷ [and] [i]n the action at bar, the court finds that the putative class members' claims arise, if at all, from separate and distinct insurance agreements ÷ [as] [e]ach putative class member entered private agreements to which other members of the class were not privy ÷ [and] the harm purportedly suffered by the individual class members occurred at different times and in sundry locations")

Parham v. Stouffer Foods Corp., 882 F. Supp. 1018 (M.D. Ala. 1995) (DeMent, J) ("Defendant contends that the court should aggregate the claims of the plaintiff class, which would confer jurisdiction on this court ÷ assert[ing] that while Plaintiffs waive damages in excess of $49,000 for individual class members, they do not purport to waive damages in excess of the entire putative class ÷ [and] that this practice is improper and an attempt to thwart the proper jurisdiction of this court because the lump sum of punitive damages will transcend $50,000 ÷ . Defendant claims that punitive damages is a single undivided award prompted by a desire to deter inappropriate conduct. Moreover, Defendant also argues that, based on the certification, the plaintiff class has a common and undivided interest in the punitive damage award sought by the plaintiffs"; unilateral restriction of damages allowed: "Defendant ÷ attacks the principle of unilateral restriction of damages ÷ claim[ing] that this practice by the class representatives is invalid ÷ [and] point[ing] to the learned Judge Propst's decision in Reeves ÷, [wherein] the court held that purported class representatives cannot unilaterally restrict the amount of punitive damages that class members might receive ÷ [h]owever, as Defendant has pointed out in its notice of removal, this court has reached different results in cases of this variety ÷ [here], Plaintiffs stipulate that they will neither request nor accept damages in excess of $50,000.00 ÷ [and] [t]he Court admonishes Plaintiffs that should they dishonor their stipulation and either seek or accept individual damages exceeding $50,000.00, upon application to this court, sanctions will be swift in coming and painful upon arrival aggregation of damages limited to single event context: "cases in which lower courts have allowed the aggregation of punitive damages to meet the jurisdictional requirement involved a single event or act of conduct by the defendant ÷ [while] claims ÷ involv[ing] separate and discreet claims based on contractual rights ÷ are separate and independent, [so] the punitive damages should be arrogated to each class member on a pro rata basis in determining the jurisdictional amount ÷ [t]he action before the court does not involve a single wrong, as is the scenario with a mass tort ÷ [t]he putative class members assert that they were independently and separately wronged by the alleged false and deceptive practice(s) of Defendant [and] allege that the purported wrongs flowed from separate and distinct breaches of contract ÷ [a]s such, the resulting harm cannot constitute the product of a solitary event or act")

Poore v. American-Amicable Life Ins. Co., 125 F. Supp. 2d 1378, 1383-1385 (S.D. Ga. 2000) (Nangle, J) (supplemental jurisdiction under ? 1367 available: "? 1367 legislatively overruled Zahn", because (1) legislative history was persuasive, (2) "overruling Zahn will better equip federal courts to resolve complex interstate disputes that may not be well handled in the courts of some states", in that (a) "some states have not adopted Rule 23 or anequivalent and so maintaining a class action in those states is difficult, if not impossible", (b) "Zahn thwarts some of the chief functions of the class action device"-e.g., judicial efficiency and allowing actions to be brought that could not be litigated individually, (c) "[t]he Zahn rule presents two equally unattractive options for the unnamed class action plaintiff with jurisdictionally insufficient claims": (i) bringing an individual state court action, which might be economically unfeasible, "particularly where the defendant is a large entity which can afford drawn-out litigation and expensive experts", and (ii) dropping the suit altogether, which "encourages mass 'nickel-and-dime theft' especially from consumers who have little economic incentive to pursue civil remedies", and (d) "some states also require class action plaintiffs to have minimum contacts with the state and where the injury suffered by the plaintiffs occurs in multiple states, this requirement presents a substantial barrier to maintaining multistate class actions in state court", (3) "overruling Zahn furthers the true intent of diversity jursidiction"-"to provide an impartial tribunal, free from local bias or influence, to decide controversies between citizens of different states"-i.e., "overruling Zahn would protect nonlocal defendants in nationwide class actions from the supposed hometown advantage of a local litigant in state court by providing access to federal courts", (4) although Stromberg "expressed concern that overruling Zahn will 'allow [ ] thousands of small claims into federal court via the class device' ÷, [t]his Court ÷ views this risk of innudation as remote", because (a) "[p]resumably, there will be few cases in which the representative claims more than $75,000 and the class members have small claims", (b) "[i]f the class members' claims are substantial, they may well opt out of a Rule 23(b)(3) class to pursue individual litigation", but "[i]f they do not, overruling Zahn permits realization of the economies of the class device", (c) "[e]xperience in those courts that have concluded that the supplemental jursidiction statute abrogated Zahn indicates no hint of a docket crisis", (d) "[g]ranted, the Zahn rule does reduce the managerial burdens placed upon federal courts by multi-plaintiff litigation and by large diversity class actions", but "this Court does not believe that judicial economy is served by merely shifting the administrative burdens of multi-plaintiff litigation from federal courts to already crowded state courts", and (e) "[t]he Zahn rule actually creates more managerial burdens than it alleviates for defendants because it 'imposes the expensive and inconvenient burden of defending in multiple fora' which may be governed by different law and procedures", (5) "allowing district courts to exercise supplemental jurisdiction over all claims avoids the 'untenable result of simultaneous litigation in the state and federal courts involving the same parties and issues' ", (6) "the trend, led by the Supreme Court and Justice Scalia in particular, is to restore the primacy of statutory language", and "[t]he Eleventh Circuit has applied the same rules of statutory construction to give effect to the plain meaning of statutes", (7) "this Court has noted the trend by plaintiff's counsel to purport to waive all punitive damage claims and to limit compensatory damages to less than $75,000 per class member in order to avoid federal court", and "[e]ven if such a waiver and limitation were effective, the reality of the situation is that plaintiffs will likely seek to amend their complaint and seek greater amounts of damages after the one year removal window has closed", such that "[o]verruling Zahn would thwart this type of egregious forum manipulation", and (8) "it is inappropriate for federal courts to define their own jurisdiction by ignoring contrary statutory provisions in the guise of interpretation", because "[u]nder Article III of the Constitution, that job belongs to Congress", such that Court "should follow the enacted statute and not judicial interpretations which define the jurisdiction of federal courts")

Shelly v. Southern Bell Telephone & Telegraph Co., Inc., 873 F. Supp. 613 (M.D. Ala. 1995) (Albritton, J) (plaintiffs' viewpoint required in class action context: "[i]n some instances where a plaintiff seeks an injunction, courts may use the value of the injunction to invoke federal jurisdiction ÷ [h]owever, where the case is a class action, the court must determine the nature of the right that would be protected by an injunction in order to set the appropriate value level for each plaintiff ÷ [w]here the suit seeks to enforce one common right held collectively by all plaintiffs, then the court would be correct in looking to the full value of the injunction ÷ [h]owever, where the claims are essentially individual and discrete, the injunction must be looked at as it applies to each plaintiff ÷ [i]n this case, the plaintiffs are asking for an injunction that would prevent the defendant from disconnecting individual telephone calls ÷ [t]he benefit to each plaintiff of such an injunction would appear to be $1.50 each time they are not cut off ÷ [t]o look at the issue from another perspective, the court has been asked by the plaintiffs to prevent a large number of individual violations from occurring ÷ [so] [t]he plaintiffs in this case seek to vindicate individual rights, rather than one common interest ÷ [e]ach instance complained of is separate and independent, and technically each could constitute the grounds for an independent lawsuit ÷ [t]he claims are brought together in the interests of convenience and efficiency, but each plaintiff alleges that he suffered discrete and individual harm, in the same way that the plaintiffs in Snow suffered individual harm ÷ [just] [b]ecause the defendant may have a single policy or practice that leads to these harms does not entitle plaintiffs or defendant to aggregate the value of the injunctive relief and bring this case to federal court")

Indianer v. Franklin Life Ins. Co., 113 F.R.D. 595 (S.D. Fla. 1986) (Marcus, J) (no common and undivided interest: "[w]hile acknowledging that class members' claims for past damages are separate and distinct, Plaintiff argues that policyholders have a common and undivided interest with respect to the divisible surplus in each upcoming year at the point of time before the formula for division is determined ÷ [however,] [i]t is well established that the claims of policyholders against an insurance company derive from their respective insurance contracts and are thus separate and distinct ÷ [and] [t]hey may not therefore be aggregated to satisfy the jurisdictional amount ÷ [t]o the extent that plaintiff class members seek to enforce a non- discriminatory allocation of dividends in the future and prevent future reductions in dividends which might be properly owing to each participating policyholder, each class member's claim is still separate and distinct, grounded in his individual contract and governed by the amount of each individual policy and the amount which has been borrowed against it ÷ [t]his Court has already determined that future damages based upon matters wholly within Defendant's discretion are speculative in nature and are not proper for consideration in determining the amount in controversy in the instant case ÷ [w]e think that Plaintiff's attempt to recast its claim from one seeking to recover future damages into a common and undivided claim to Defendant's allocable surplus at a precisely defined point in time every year must be rejected ÷ [as] [t]he facts of the instant case do not comport with those which have been deemed proper for aggregation due to the common and undivided nature of the claim"; plaintiff's viewpoint required in class action context: "[t]here is no question that the cost to Franklin of compliance with an injunction would be in excess of $10,000 ÷ [t]his Court must therefore decide whether plaintiff is correct that such a pecuniary impact upon the Defendant is a proper means of satisfying the amount in controversy requirement where Plaintiff's monetary damages are patently insufficient ÷ [while] [t]here is a split in authority on the question of from which viewpoint the jurisdictional amount should be viewed ÷ several courts addressing the issue have held, and we think properly, that the Supreme Court's rule against aggregation in Snyder precludes the extension of this rule to diversity class actions involving separate and distinct claims ÷ [so] [a]lthough the issue of whether the defendant's viewpoint approach is proper in class actions involving separate and distinct claims is both debatable and a matter unresolved in this circuit, we think the better answer is that Snyder can only be interpreted as precluding the valuation of the amount in controversy from the defendant's viewpoint ÷ [as] [a]ny other result would have the necessary consequence of permitting the aggregation of claims in flat violation of the teachings of Snyder")

12. District of Columbia Circuit

No "Common and Undivided Interest": NOW; but see: Aetna DC; NWRO

Punitive Damages/Attorneys' Fees Not Aggregable: NOW

Plaintiff's Viewpoint Required in Class Action: NOW

Supplemental Jurisdiction under ? 1367 Available: n/a

Aetna U.S. Healthcare v. Hoechst AG, 48 F. Supp. 2d 37 (D.D.C. 1999) (Lamberth, J) ("Aetna DC") (disgorgement claim is always an aggregable common interest: while "the case law and commentary on this issue admittedly show what is and what is not an aggregable claim is sometimes less than clear ÷ a collective right to a disgorgement in the amount of the unjust enrichment ÷ does not depend upon the number of plaintiffs ÷[and] is precisely the type of scenario in which ÷ a plaintiff's claims must be considered integrated and aggregable ÷ [b]y the complaint's own terms, the illegal agreement among the defendants includes payments in contravention of law of at least forty million dollars per year", exceeding the jurisdictional amount of $75,000")

National Organization for Women v. Mutual of Omaha Ins. Co., 612 F. Supp. 100 (D.D.C. 1985) (Flannery, J) (no common and undivided interest: "Defendant raises various arguments to support its view that the claims of the class members should be aggregated for purposes of determining the jurisdictional amount ÷ [and] [t]he court notes at the outset that the case law on aggregation is more susceptible to clever manipulation by counsel than it is to reasoned analysis ÷ [i]n addition to engaging in the fine hairsplitting needed to distinguish cases in the area, the court in deciding that the claims in this case cannot be aggregated, is guided by three principles ÷ [f]irst, this court is to construe its diversity jurisdiction narrowly ÷ [s]econd ÷ cases that have taken an expansive view of aggregation are most often cases that arose under federal question jurisdiction when that jurisdiction still had an 'amount in controversy' component ÷ [and] [i]n those cases, although it is never explicitly discussed, courts may well have been influenced by a desire to provide a federal forum for the vindication of federal rights ÷ [but] [t]here is no similar reason to view aggregation expansively when jurisdiction is based on diversity of citizenship ÷ [f]inally, although there are exceptions to the rule of Snyder and Zahn, lower courts should be careful not to broaden those exceptions to such an extent that the general rule would be swallowed by the exceptions to it"; "defendant's most promising theory and the one most difficult to deal with is that the claims of these class members can be aggregated because they are seeking to 'enforce a single title or right' ÷ [but] [t]he case of Dougall v. Sugarman ÷ appears very similar to the instant action ÷ [therein,] a group of aliens challenged on due process and equal protection grounds, a New York law that made non-citizens ineligible for appointment to certain civil service jobs ÷ [and] [t]he court ruled that 'the claims of the class members being separate and distinct, may not be added together' ÷ [here,] each class member could presumably have sued on her own behalf, and damage claims will be individualized"; plaintiff's viewpoint required in class action context: "Defendant next argues that because plaintiffs also seek injunctive relief in this action the court can determine the jurisdictional amount by looking to the cost to the defendant of complying with any equitable relief ordered in this action ÷ [in] support ÷ defendant relies on cases of this circuit in which the court allowed the jurisdictional amount to be met by looking to the defendants' cost of compliance ÷ [but] Plaintiffs argue persuasively that to allow the defendant's view test to be used whenever injunctive relief is sought along with damages in a class action would undermine the holdings of Zahn and Snyder ÷ [and] [t]his court will not apply the defendant's view test to this diversity action which seeks both damages and injunctive relief"; no aggregation of attorneys' fees: "Defendant further seeks to avoid the no aggregation rule by asking the court to focus on the fact that plaintiffs have also requested attorneys' fees that they argue will be sure to amount to more than $10,000 ÷ [a]lthough they cite support for the proposition that attorneys' fees can be considered as part of the jurisdictional amount ÷ they cite to no case in which attorneys' fees were aggregated in a class action so that the jurisdictional amount could be met ÷ [while] Plaintiffs, however, point to authority for the proposition that in class actions one cannot aggregate the amount of attorneys' fees in order to meet the jurisdictional amount ÷ [and we] conclude[] that the amount of requested attorneys' fees cannot be aggregated for determining the jurisdictional amount")

National Welfare Rights Organization v. Weinberger, 377 F. Supp. 861 (D.D.C. 1974) (Pratt, J) (common and undivided interest: "[o]ur Court of Appeals has stated that 'particularly where purely injunctive relief is sought, the amount in controversy may be measured by either the value of the right sought to be gained by the plaintiff or the cost of enforcing that right to the defendant' ÷ [t]his Court is satisfied that the value of the right sought to be enforced will exceed $10,000, and that accordingly jurisdiction lies under ? 1331 ÷ [t]he Court in this case is, in essence, faced with the Government's administration of a multi-billion dollar trust fund settled by Congress for the benefit of a vast number of individuals ÷ [i.e.,] a 'common and undivided' interest [belonging to the class] which permits aggregation")

ENDNOTES

* The opinions expressed herein are solely attributable to the author and do not (necessarily) reflect the views, opinions, etc. of Class Action Reports. Every effort has been made to ensure the accuracy of this article's case cites and quotations, but readers are urged to double-check before relying on them. Class Action Reports does not warrant the use of this article as attorney work product.

1A paraphrase. Various CLE faculty drawn from the corporate defense bar have made this point at conferences attended by the author.

2 Since it is very much the fashion of the day to assume that the motives of plaintiffs' attorneys-a group increasingly regarded as piratical blackmailers by mainstream commentators-are impure, we may instead look to the defendants and note that as these interests are sponsoring current federal jurisdiction "reform" efforts, they presumably have something to gain by so doing.

3 On the subject of class action "migration" from federal to state courts, see D. Hensler et al., Class Action Dilemmas-Pursuing Public Goals for Private Gain (Rand Institute for Civil Justice 2000). "Migration" in this case refers to a general trend and not the particular circumstance of a duplicative state court class action-i.e., one which was originally in federal court.

4 For an overview of S.353, see: Point/Counterpoint: The Case For, and Against, Federal Class Action Litigation, 1 Class Action Litigation Report (BNA) 285 (Aug. 11, 2000). See also H.R. 2341 which was sent to the House Judiciary Committee on June 27, 2001.

5 See Appendix, infra, for citations to these cases.

6 28 U.S.C. ? 1332(a) (1999).

7 967 F. Supp. 257 (N.D. Ohio 1997).

8 While the amount in controversy in either individual or class litigation may be an aggregate figure composed of each individual plaintiff's compensatory damages, punitive damages and/or attorney's fees (depending on the availability of such for the plaintiff/s), this is not the sort of "aggregation" on which these disputes are centered. While some courts have used the term "aggregation" to refer to both the individual plaintiff's amount in controversy figure and the class-wide combination of the individual plaintiffs' amounts in controversy, most have limited its use to the latter circumstance, and this article will follow that usage.

9 The size of the plaintiff class was estimated at 270,000.

10 That is, all actions involving more than one plaintiff, including but not limited to class actions. As noted by the Court, the rules on aggregation antedate the class action device. Multiple-plaintiff (but non-class) actions are likewise subject to the non-aggregation rule: see Surber v. Reliance National Indemnity Co., 110 F. Supp. 2d 1227 (N.D. Cal. 2000) (no aggregation of Cal. Bus. & Prof. Code ?17200 claims).

11 222 U.S. 39, 40-41 (1911).

12 Snyder v. Harris, 394 U.S. 332, 337 (1969). See also, e.g.: Freitas v. First New Hampshire Mortgage Corp., 1998 WL 657606 (D.R.I. July 23, 1998); Steinberg v. Nationwide Mutual Ins. Co., 91 F. Supp. 2d 540 (E.D.N.Y. 2000); Greenberg v. Trace Int'l Holdings, 1999 WL 587935 (S.D.N.Y. Aug. 4, 1999); Gilman v. BHC Securities, Inc., 104 F.3d 1418 (2d Cir. 1997); Knauer v. Ohio State Life Ins. Co., 102 F. Supp. 2d 443 (N.D. Ohio 2000); Lhotka v. Ford Motor Co., 98 F. Supp. 2d 984 (N.D. Ill. 2000); Krause v. GE Capital Mortgage Svcs., Inc., 1998 WL 831896, RICO Bus. Disp. Guide 9667 (N.D. Ill. Nov. 20, 1998).

13 See Fed. R. Civ. P. 23(a) and Supplementary Advisory Committee Note.

14 For a dramatic illustration of this, see the discussion of the Texas insurance double-rounding insurance premium case in Class Action Dilemmas, supra note 2. A large number of plaintiffs in that case had damages of exactly $1-and only the fact that there were a large number of such plaintiffs made litigation possible.

15 Snyder v. Harris, 394 U.S. 332, 337-338 (1969).

16 See, e.g., Roberson v. Jim Walter Homes, Inc., 2000 WL 798826 (N.D. Miss. June 2, 2000) (named plaintiffs in class action against residential builder had jointly-held-i.e., common and undivided-interest in their own home, as tenants in the entriety).

17 Zahn at 297 n.7.

18 394 U.S. 332 (1969).

19 "Under old Rule 23, class actions were divided into three categories ÷ [viz., true; spurious; and hybrid;] [t]rue class actions were those in which the rights of the different class members were common and undivided; in such cases aggregation was permitted. Spurious class actions, on the other hand, were in essence merely a form of permissive joinder in which parties with separate and distinct claims were allowed to litigate those claims in a single suit simply because the different claims involved common questions of law or fact. In such cases aggregation was not permitted". Snyder, 395 U.S. 332, 335.

20 Id. at 341.

21 Snyder at 338.

22 Tench v. Jackson National Life Insurance Co., 1999 WL 1044923 (N.D. Ill. Nov.12, 1999).

23 The "intellectual superiority" of the federal bench is routinely cited as a reason for exclusive federal jurisdiction for class actions-see e.g., Point/Counterpoint: The Case For, and Against, Federal Class Action Litigation, supra note 4.

24 Snyder v. Harris, 394 U.S. 332, 341 (1969).

25 The court elsewhere in the opinion made something of the equitable nature of the disgorgement remedy as support for its finding of a common and undivided interest. Despite the use of equitable terminology in the damages prayer, it is clear that the the suit was based on legal-and not equitable-claims.

26 Aetna U.S. Healthcare, Inc. v. Hoechst AG, 54 F. Supp. 2d 1042, 1049-1050 (D. Kan. 1999) ("Aetna Kansas").

27 See also Knauer v. Ohio State Life Ins. Co., 102 F. Supp. 2d 443 (N.D. Ohio 2000). As noted by the Aetna Kansas court, the exact wording of the complaint is not dispositive; here the complaint, as drafted, would seem to easily satisfy the pleading standards of Rule 8.

28 104 F.3d 1418, 1426 (2d Cir. 1997).

29 Accord, Pohl v. NGK Metals Corp., Inc., 117 F. Supp. 2d 474 (E.D. Pa. 2000); Ferris v. General Dynamics Corp., 645 F. Supp. 1354 (D.R.I. 1986); Dorian v. Bridgestone/Firestone, Inc., 2000 WL 1570627 (E.D. Pa. Oct. 19, 2000); Farkas v. Bridgestone/Firestone, Inc., 113 F. Supp. 2d 1107 (W.D. Ky. 2000); Phipps v. Praxair, Inc., 1999 WL 1095331 (S.D. Cal. Nov. 12, 1999); Gibson v. Chrysler Corp., 1999 WL 1049572 (N.D. Cal. May 28, 1999); Morrison v. Allstate Indemnity Co., 228 F.3d 1255 (11th Cir. 2000); Dixon v. Ford Motor Credit Co., 1998 WL 440304 (E.D. La. July 31, 1998), reconsideration denied, 1998 WL 485694 (E.D. La. Aug. 14, 1998); Pierson v. Source Perrier, S.A., 848 F. Supp. 1186 (E.D. Pa. 1994).

30 Cardizem at 829.

31 In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 610 (7th Cir. 1997).

32 The Rules distinguish between class actions praying primarily for money damages (with added claims for injunctive or declaratory relief) and those praying primarily for injunctive or declaratory relief. Compare Fed. R. Civ. P. 23(b)(3) with the 23(b)(2) "non-opt-out" class action. In a 23(b)(2) action, the class may be properly said to possess a common and undivided interest in the requested relief; but this "subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages." Id., Supplementary Advisory Committee Note.

33 Jacobsen at *3.

34 Lhotka at 987, quoting Poindexter v. National Mortgage Corp., 1991 WL 278454 at *2 (N.D. Ill. Dec. 23, 1991).

35 Loizon at 253-254.

36 63 F.3d 1326 (5th Cir. 1995).

37 576 F.2d 593 (5th Cir. 1978). The Eleventh was split off from the Fifth Circuit in 1978, and "Old Fifth" opinions are binding precedent therein. Plaintiffs in Lindsey sought punitive damages and defendants removed to federal court. In remanding, the Fifth Circuit held that "[o]f course, the claims of several plaintiffs, suing as a class, cannot be aggregated." Id. at 594.

38 Reh'g and reh'g en banc denied, 250 F.3d 302 (5th Cir. 2001).

39 63 F.3d at 1333.

40 70 F.3d 26 (5th Cir. 1995).

41 Other district courts quickly applied Allen's reasoning. See, e.g., In re Norplant Contraceptive Prods. Liab. Litig., 907 F. Supp. 244, 246 (E.D. Tex. 1995) (Texas law); Gilmer v. Walt Disney Co., 915 F. Supp. 1001, 1013-14 (W.D. Ark. 1996) (Arkansas law); Brooks v. Georgia Gulf Corp., 924 F. Supp. 739, 741 (M.D. La. 1996) (Louisiana law).

42 138 F.3d 596 (5th Cir. 1998), reh'g and reh'g en banc denied, 145 F.3d 361 (5th Cir. 1998).

43 77 F.3d 1353, 1357.

44 Obviously, it is impossible to fit the Allen/Tapscott reasoning on punitive damages into Troy. Certainly, Tapscott's espousal of the notion that punitive damages are not available "as a matter of right" to a plaintiff is purest sophistry, as punitive damages are available only to plaintiffs asserting an underlying substantive claim on a right. To draw a distinction between rights and claims parasitic thereon is in this instance to split a very fine hair indeed-and in any event the relevant inquiry is whether the claims are "separate and distinct" or "common and undivided." Where punitive damages are parasitically attached to separate and distinct legal claims, the determination that punitive damages are themselves separate and distinct is one of logical necessity. Under the facts of Tapscott itself, each plaintiff could have brought suit and prayed for punitive damages separately, as each was the holder of a separate contract. There was no reason apart from convenience and efficiency for the suit to be brought as a class action.

45 Id. at 1358-59.

46 204 F.3d 1069, 1072 (11th Cir. 2000).

47 Accord, Smith v. GTE Corp., 236 F.3d 1292 (11th Cir. 2001).

48 967 F. Supp. 257 (N.D. Ohio 1997).

49 Id. at 262.

50 While it is possible that distribution of class monies may resemble the distribution of a limited fund kitty, it is by no means likely, and in any event this superficial similarity is only one aspect shared with a true common and undivided claim award-see Ferris v. General Dynamics Corp., 645 F. Supp. 1354, 1364 (D.R.I. 1986).

51 Crosby at 262.

52 Reh'g and suggestion for reh'g en banc denied, 65 F.3d 33 (5th Cir. 1995), remanded, 982 F.Supp. 1211 (M.D.La. 1997), affirmed in part; question certified, Free v. Abbott Laboratories, Inc., 164 F.3d 270 (5th Cir. 1999), certified question denied, 739 So.2d 216 (La. 1999), aff'd, 176 F.3d 298 (5th Cir. 1999), cert. granted, 528 U.S. 1018 (1999), aff'd, 529 U.S. 333 (2000) (per curiam).

53 La. R.S. 51:137.

54 La. C. Civ. Pro. Art. 595.

55 Thus, Abbott does not allow aggregation across the class, but only within the group of named plaintiffs.

56 Johnson v. Cytek Industries, Inc., 1999 WL 212753 (E.D. La. Oct. 13, 2000).

57 193 F.R.D. 19 (D. Mass. 2000).

58 Id. at 22.

59 Colon v. Rent-a-Center, Inc., 13 F. Supp. 2d 553, 557 (S.D.N.Y. 1998) (quoting 15 Moore's Federal Practice 102-196.1). This is doubly true for (23(b)(3)) class actions for damages, as the amounts by which the individual class members stand to benefit will almost certainly be less than $75,000.

60 Proponents of jurisdictional class action "reform" have heatedly seized upon this disparity-declaring it, inter alia, a "pervers[ity]" (see 1 Class Action Litigation Report (BNA) 289 (2000))-but such an argument is obviously not directed at the legal profession. It may be presumed that, however difficult the concepts may be for the laity, lawyers and judges understand what "amount in controversy" means, why it differs from the "amount at stake," and why the two concepts are only superficially related. Expressions of bewildered astonishment as to the logical consequences of the amount in controversy rules should therefore be taken with the proverbial grain of salt.

61 DelVecchio v. Conseco, Inc., 230 F.3d 974 (7th Cir. 2000); Snow v. Ford Motor Co., 561 F.2d 787 (9th Cir. 1977); Nelson v. Associates Financial Services Co. of Indiana, Inc., 79 F. Supp. 2d 813 (W.D. Mich. 2000); Dorian v. Bridgestone/Firestone, Inc., 2000 WL 1570627 (E.D. Pa. Oct. 19, 2000); Pohl v. NGK Metals Corp., Inc., 117 F. Supp. 2d 474 (E.D. Pa. 2000); Miller v. Bridgestone/Firestone Inc., 2000 WL 1570732 (E.D. Pa. Oct. 19, 2000); Phipps v. Praxair, Inc., 1999 WL 1095331 (S.D. Cal. Nov. 12, 1999); In re Cardizem CD Antitrust Litigation, 90 F. Supp. 2d 819 (E.D. Mich. 1999); Freitas v. First New Hampshire Mortgage Corp., 1998 WL 657606 (D.R.I. July 23, 1998); Colon v. Rent-a-Center, Inc., 13 F. Supp. 2d 553 (S.D.N.Y. 1998); Pierson v. Source Perrier, S.A., 848 F. Supp. 1186 (E.D. Pa. 1994); Ferris v. General Dynamics Corp., 645 F. Supp. 1354 (D.R.I. 1986). But see: Steinberg v. Nationwide Mut. Ins. Co., 91 F. Supp. 2d 540, 544 (E.D.N.Y. 2000) ("defendant's viewpoint" applied without discussion of aggregative effect thereof); McCoy v. Erie Insurance Co., __ F. Supp. 2d __, 2001 WL 689542 at *9-*10 (S.D. W. Va. June 18, 2001) ("either viewpoint" applied without discussion of aggregative effect thereof).

62 While most courts state the principle straightforwardly, see, e.g., Ferris v. General Dynamics Corp., 645 F. Supp. 1354 (D.R.I. 1986) ("it would run contrary to established authority to swerve around the forbidden aggregation of plaintiffs' claims by employing a defendant's viewpoint analysis") other courts have taken a longer route to the same destination-by noting that where a class action is brought on separate and distinct claims, the defendant's and the plaintiff's viewpoints will be identical; see, e.g. In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 610 (7th Cir. 1997) ("[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 defendant's standpoint ÷ [thus] the defendant is deemed to face multiple claims for injunctive relief, each of which must be separately evaluated"); see also Crosby v. America Online, Inc., 967 F. Supp. 257 (N.D. Ohio 1997). The problem with this latter formulation is that it ignores the essential aspect of the defendant's viewpoint-viz., that a removing defendant will view the aggregated figure as the proper amount in controversy. If the defendant is trying to remove, why would it use such a self-defeating definition of its own viewpoint? In any event, the Seventh Circuit has also used the more straightforward formulation of the rule; see DelVecchio v. Conseco, Inc., 230 F.3d 974, 977-978 (7th Cir. 2000). Thus, injunctive relief in the class action context will always be valued from the plaintiff's perspective, regardless of whether or not other viewpoints would be available in non-class litigation. McIntire v. Ford Motor Co., 142 F. Supp. 2d 911 (S.D. Ohio 2001), misinterprets Prescription Drugs in concluding that the 7th Circuit (sometimes) allows the use of the defendant's viewpoint in class actions. The McIntire court was apparently confused by Judge Posner's use of the rhetorical device of reductio ad absurdum. Posner's argument is: if we allow the defendant's viewpoint to be used for class actions, then "every case, however trivial" would cross the threshold-which is absurd. Therefore, the defendant's viewpoint cannot be used for class actions. Q.E.D. Prescription Drugs at 610. In re Microsoft Corp. Antitrust Litigation, 127 F. Supp. 2d 702 (D. Md. 2001) involved a request for an "untying" injunction, and the court noted that the cost of such "would be the same whether it is done for one plaintiff or for millions," such that the amount-in-controversy amount was satisfied. Id. at 719. We may recall the common and undivided nature of the "undifferentiated equitable relief" requested in Jacobsen, discussed supra at II.D.1. The Microsoft court was however curiously reluctant to call the injunction a "common and undivided interest," instead saying that the result was merely "consonant with the purpose of the common and undivided interest exception." Id. In any event, the court recognized the difficulty of the issue, and certified the question for interlocutory review (pending), 2001 WL 137254 (D. Md. Feb. 15, 2001).

63 See Appendix.

64 Cardizem at 835.

65 414 U.S. 291 (1973).

66 Id. at 292.

67 Id. at 301.

68 28 U.S.C. ? 1367.

69 In re Abbott Labs., 51 F.3d 524, 528 (5th Cir. 1995).

70 Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928, 930-933 (7th Cir. 1996). In accord are District courts in Maryland (Williams v. Potomac Electric Power Co., 115 F. Supp. 2d 561 (D. Md. 2000)); Georgia (Poore v. American-Amicable Life Ins. Co., 125 F. Supp. 2d 1378, 1384-1385 (S.D. Ga. 2000)); West Virginia (Chiartas v. BMW, 106 F. Supp. 2d 872, 875 (S.D.W. Va. 2000)); Texas (ABS Insurance, Ltd. v. National Union Fire Insurance Co., 51 F. Supp. 2d 762, 766 (E.D.Tex. 1999)); and Florida (Leszczynski v. Allianz Insurance, 176 F.R.D. 659, 666 (S.D. Fla. 1997)).

71 Abbott Labs held that the statute overruled Zahn even while acknowledging that the legislative history indicated that this was not intended. Finding that the statute as written was "unambiguous," the court refused to consider any evidence extrinsic to the statute. Other courts have noted, however, that the tension between the statute and Zahn is indicative of an inherent ambiguity: see, e.g., Peterson v. BASF Corp., 12 F. Supp. 2d 964, 971 (D. Minn. 1998): "as section 1367(a), by its very terms, yields to contrary statutory provisions, it must be read in pari materia with section 1332, as interpreted by Zahn and Snyder. Accordingly ÷ the meaning of section 1367 cannot be considered clear, at least as applied to diversity class actions."

72 Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 221-222 (3d Cir. 1999) (multiple plaintiff action).

73 Trimble v. Ascaro, Inc., 232 F.3d 946, 961-962 (8th Cir. 2000).

74 Leonhardt v. Western Sugar Co., 160 F.3d 631, 640 (10th Cir. 1998). In accord are district courts in Michigan (Krieger v. Gast, 197 F.R.D. 310, 316 (W.D. Mich. 2000)); New York (Freeman v. Great Lakes Energy Ptns., LLC, __ F. Supp. __, 2001 WL 476892 (W.D.N.Y. Feb. 11, 2001); Pavlov v. Bank of New York, 2000 WL 424185 at *2 (S.D.N.Y. Apr. 18, 2000)); California (Kanter v. Warner-Lambert Co., 52 F. Supp. 2d 1126, 1132 (N.D. Cal. 1999)); Minnesota (Peterson v. BASF Corp., 12 F. Supp. 2d 964, 968-972 (D. Minn. 1998)); Alabama (Hooks v. Assoc. Fin. Serv. Co., 966 F. Supp. 1098 (M.D. Ala. 1997)); Ohio (Crosby v. America Online, Inc., 967 F. Supp. 257, 263 (N.D. Ohio 1997)); Arkansas (Gilmer v. Walt Disney Co., 915 F. Supp. 1001, 1008 (W.D. Ark. 1996)); Missouri (Metzler v. Nationwide Mutual Fire Ins. Co., 1995 WL 938601 at *2 (E.D. Mo. Nov. 21, 1995)); North Carolina (Rodger v. EDS Corp., 160 F.R.D. 532, 536 (E.D.N.C. 1995)); and Massachusetts (Mayo v. Key Financial Services, Inc., 812 F. Supp. 277, 278 (D. Mass. 1993), on remand, 1994 WL 879676 (Mass. Super. Ct. June 22, 1994)).

75 529 U.S. 333 (2000) (per curiam).

76 The Supreme Court's Abbott Labs opinion has no precedential value. See, e.g., First National Bank v. American Lenders Facilities, Inc., 2000 WL 1336655 at *4 (D. Minn. May 23, 2000) ("Recently, the United States Supreme Court granted certiorari to review the ruling in In re Abbott Laboratories, Inc., but ultimately affirmed the Judgment of the Fifth Circuit by an equally divided vote, with Justice O'Connor taking no part in the consideration or decision of the case ÷ While that affirmance is binding upon the parties in Abbott, it provides no precedential guidance in other cases, as an affirmance by an equally divided United States Supreme Court ends the process of direct review and settles no issue of law ÷ Consequently, the Supreme Court's decision ÷ is prohibited from 'becoming an authority for the determination of other cases, either in [the Supreme Court] or in inferior courts.' "); In re LifeUSA Holding, Inc., 242 F.3d 136, 142 n.7 (3d Cir. 2001) ("In Meritcare, this Court ruled that the supplemental jurisdiction statute, 28 U.S.C. ? 1367, does not overrule Zahn and thus does not disturb its holding that every class plaintiff must meet the jurisdictional amount requirement of 28 U.S.C. ? 1332 ÷ The Supreme Court has not resolved this circuit split, affirming the Fifth Circuit by 'an equally divided Court,' with no opinion ÷ However, an affirmance by an equally divided Supreme Court has no precedential value ÷ [and] Therefore, Meritcare remains the law of this Circuit: each member of a class action must independently meet the jurisdictional amount requirement, and those that do not must be dismissed from the action").

77 Johnson v. Cytek Industries, Inc., 1999 WL 212753 (E.D. La. Apr. 13, 1999).