1

We recite only those facts necessary for the resolution of the jurisdictional issue, which

generally depends on the facts as alleged in the plaintiff's complaint. See St. Paul Mercury

Indemnity Co. v. Red Cab Co., 303 U.S. 283, 287, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). 

United States Court of Appeals,

Eleventh Circuit.

No. 95-6766.

ERICSSON GE MOBILE COMMUNICATIONS, INC., a Delaware Corporation, PlaintiffAppellee,

v.

MOTOROLA COMMUNICATIONS & ELECTRONICS, INC., an Illinois corporation,

Birmingham, City of, a municipal corporation, Richard Arrington, Jr., in his official capacity as

Mayor of the City of Birmingham, Defendants-Appellants.

Aug. 22, 1997.

Appeals from the United States District Court for the Northern District of Alabama. (No. CV-94-

AR-808-S), William M. Acker, Jr., Judge.

Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior Circuit Judges.

KRAVITCH, Senior Circuit Judge:

Ericsson GE Communications ("EGE") brought this diversity action pursuant to the Alabama

Competitive Bid Law, Ala.Code §§ 41-16-50, et seq. (1991 & Supp.1996), to enjoin the execution

of a contract between Motorola Communications & Electronics, Inc. ("Motorola") and the City of

Birmingham (the "City") for the purchase of a new public safety communications system. Because

we conclude that the value of an injunction voiding the contract between Motorola and the City,

from the perspective of plaintiff-appellee EGE, is too speculative to satisfy the amount in

controversy requirement of the diversity statute, 28 U.S.C. § 1332, we remand the case to the district

court with instructions to dismiss for lack of subject matter jurisdiction.

I.

This action arises out of the City's purchase of an 800 MHZ trunked simulcast radio

communication system for its police and fire departments.1

 In the early 1990's, the Mayor of

Birmingham decided that the City needed a new public safety communications system and hired a

consultant to research the City's needs and to assist the City in preparing bid specifications and in
 2

The APCO 16 and APCO 25 are sets of specifications for public radio systems. The APCO

25, a newer technology, is based on specific technological requirements for the equipment while

the APCO 16 is based on functional standards. 

 3In Ericsson GE Mobile Communications, Inc. v. Motorola Communications & Electronics,

Inc., the Alabama Supreme Court held that the City's use of alternative bidding did not, by itself,

violate the competitive bid law. 657 So.2d 857, 865 (Ala.1995). It further concluded that EGE

could prove a violation of the bid law by demonstrating that the City's selection of the APCO 25

system was based on " "ignorance through lack of inquiry,' or was "the result of improper

influence,' or was otherwise arbitrary and capricious." Id. (quoting White v. McDonald Ford

Tractor Co., 287 Ala. 77, 248 So.2d 121, 129 (1971)). 

2

evaluating competing bids. In May 1993, the City issued a Request for Bids ("RFB") for two

different communication technology systems, the APCO 16 and the APCO 25.2 The RFB provided

that a vendor could submit bids for either or both of these technology systems. Only EGE and

Motorola submitted bids in response to the City's request; EGE bid on the APCO 16 system for

$9,758,053 and Motorola bid on the APCO 25 system for $11,336,282. After the submission of

bids, the Mayor concluded that the APCO 25 system technology would better serve the City's needs.

The City then rejected the bids of both EGE and Motorola, and negotiated a new contract with

Motorola.

Alleging among other things that the consultant hired by the City was biased in favor of

Motorola and that he skewed the decision-making process in that company's favor, EGE brought this

action to enjoin the enforcement of the contract between Motorola and the City and to have itself

declared the lowest responsible bidder. Motorola and the City moved unsuccessfully to dismiss

EGE's claim for lack of subject matter jurisdiction. After certification to the Alabama Supreme

Court,3

 the district court conducted a trial before an advisory jury. Adopting that jury's verdict, the

district court concluded that the City's decision to purchase the APCO 25 technology was the result

of improper influence exerted by Motorola on the City's decision makers and, therefore, violated the
 4

In a subsequent order, the district court articulated an additional alternative ground for

finding a violation of the Alabama Competitive Bid Law. The district court concluded that the

Mayor had violated § 6.09 of the Mayor-Council Act of 1955 by negotiating a contract directly

with Motorola after having rejected the bids of both EGE and Motorola and without first having

readvertised for the bids. 

 5It is undisputed that this diversity of citizenship requirement is satisfied. 

 6

Since the filing of this action, the amount in controversy requirement has been raised to

$75,000. See 110 Stat. 3847, 3849 (1996). 

3

competitive bid law. Accordingly, the district court voided the contract.4 Motorola and the City

appeal this judgment, as well as the district court's order denying their motion to dismiss.

II.

 As a threshold matter, we must determine whether this action properly was brought in

federal court. EGE alleged jurisdiction under the diversity statute, 28 U.S.C. § 1332, which, at the

time this action was filed, provided for federal subject matter jurisdiction over actions between

citizens of different states5 in which the matter in controversy exceeds $50,000.6 Because EGE

sought only declaratory and injunctive relief, "it is well established that the amount in controversy

is measured by the value of the object of the litigation." Hunt v. Washington State Apple Advertising

Comm'n, 432 U.S. 333, 345, 97 S.Ct. 2434, 2443, 53 L.Ed.2d 383 (1977); see also Occidental

Chemical Corp. v. Bullard, 995 F.2d 1046, 1047 (11th Cir.1993).

A. Governing Perspective

 Whether courts, in determining the amount in controversy, are to measure the value of the

object of the litigation solely from the plaintiff's perspective or whether they may also consider the

value of the object from the defendant's perspective is considerably less well-established. The
 7

Various Supreme Court opinions have been cited by courts and the parties in this case in

support of both the plaintiff-viewpoint and either-viewpoint rules. See, e.g., Snyder v. Harris,

394 U.S. 332, 337-38, 89 S.Ct. 1053, 1058-59, 22 L.Ed.2d 319 (1969) (prohibiting aggregation

of claims of plaintiffs in class actions); Glenwood Light & Water Co. v. Mutual Light, Heat &

Power Co., 239 U.S. 121, 124, 36 S.Ct. 30, 32, 60 L.Ed. 174 (1915) ("The district court erred in

testing the jurisdiction by amount that it would cost defendant to [comply with injunction]."); 

Smith v. Adams, 130 U.S. 167, 174, 9 S.Ct. 566, 569, 32 L.Ed. 895 (1889) (amount in

controversy judged by "pecuniary result to one of the parties immediately from the judgment"); 

Market Co. v. Hoffman, 101 U.S. 112, 25 L.Ed. 782 (1879)(referring to right claimed by the

defendant in determining amount in controversy). As far as we are aware, however, the Court

never has expressly embraced either position in a case in which the value differed depending on

the perspective from which it was measured. Therefore, we do not read any of its apparently

conflicting opinions to have resolved this issue. See 14A Charles A. Wright et al., Federal

Practice and Procedure, § 3703 at 63-66 (1985) (concluding that Supreme Court cases are

inconclusive). 

 8

Compare Kheel v. Port N.Y. Auth., 457 F.2d 46, 48-49 (2d Cir.), cert. denied, 409 U.S. 983,

93 S.Ct. 324, 34 L.Ed.2d 248 (1972) (adopting plaintiff viewpoint rule) and Massachusetts St.

Pharm. Ass'n v. Federal Prescrip. Serv., Inc., 431 F.2d 130, 132 (8th Cir.1970)(same) with

Oklahoma Retail Grocers Ass'n v. Wal-Mart Stores, Inc., 605 F.2d 1155, 1160 (10th Cir.1979)

(adopting either-viewpoint rule) and McCarty v. Amoco Pipeline Co., 595 F.2d 389, 395 (7th

Cir.1979) (same). It appears that the majority of federal courts have chosen to use the

plaintiff-viewpoint rule. See 15 James W. Moore, Moore's Federal Practice, § 102.109[3] at

198 (1997). 

 9

See, e.g., Shelly v. Southern Bell Tel. & Tel. Co., Inc., 873 F.Supp. 613, 617 (M.D.Ala.1995); 

Bassett v. Toyota Motor Credit Corp., 818 F.Supp. 1462, 1466 (S.D.Ala.1993); Mutual First,

Inc. v. O'Charleys of Gulfport, Inc., 721 F.Supp. 281, 283 (S.D.Ala.1989). 

 10In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc ), we adopted

as binding precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. 

4

Supreme Court has provided no clear guidance on this question,7 and, as a result, federal courts are

divided as to the proper perspective to use in determining the amount in controversy.8

Moreover, district courts in this circuit, reading our prior cases to conflict, have expressed

uncertainty as to whether the plaintiff-viewpoint rule governs in this circuit or whether courts are

free to consider the value of the object of the litigation to either party.9 After carefully reviewing

this circuit's precedents, however, we find no conflict, and we conclude that this court's predecessor

purposefully and conspicuously adopted the plaintiff-viewpoint rule.10

In our view, several cases from the former Fifth Circuit establish the plaintiff-viewpoint rule.

In Vraney v. County of Pinellas, a non-resident property owner and taxpayer brought a diversity

action to enjoin a county waterworks program. 250 F.2d 617 (5th Cir.1958) (per curiam). Even
 11Advance Tank and Const. Co., Inc. v. Arab Water Works, 910 F.2d 761, 763 (11th

Cir.1990), on which appellee relies, provides no guidance on this question. Although the court

in Advance Tank exercised jurisdiction over a claim for injunctive relief under the Alabama

Competitive Bid Law, the plaintiff in that case also brought a claim for monetary damages under

42 U.S.C. § 1983, which provided an independent basis for federal jurisdiction. In noting

jurisdiction, we specifically referred to the fact that the district court had assumed jurisdiction

under both §§ 1331 and 1332. Id. at 763 n. 4. 

5

though the complaint clearly alleged that the value of the waterworks program to the defendant

county exceeded the amount in controversy, the court dismissed the action for lack of jurisdiction

because "there is no averment showing or tending to show that the value to the plaintiff of the object

or right sought to be enforced exceeds the sum or value" required by the diversity statute. Id. at 618

(emphasis added). The court reiterated that "[u]nder the decisions in taxpayers' actions, as well as

others, the value of the plaintiff's right sought to be enforced must exceed the jurisdictional amount

in order to confer federal jurisdiction." Id. (emphasis added).

In Alfonso v. Hillsborough County Aviation Authority, 308 F.2d 724 (5th Cir.1962), this

circuit's predecessor again refused to consider the value of the object of the litigation from the

defendant's perspective in determining the amount in controversy. In Alfonso, a group of

homeowners brought a class action against the county aviation authority seeking to enjoin expansion

of the county's airport. Citing Vraney, the Alfonso court stated that "[t]he value to the plaintiff of

the right to be enforced or protected determines the amount in controversy" and concluded that the

alleged damage to the homes of the individual plaintiffs was insufficient to satisfy the amount in

controversy requirement. 308 F.2d at 726-27 (emphasis added). The court expressly rejected the

plaintiffs' contention that "the amount in controversy is the value of the air rights to the defendants."

Id.; see also Texas Acorn v. Texas Area 5 Health Systems Agency, Inc., 559 F.2d 1019, 1023 (5th

Cir.1977) ("Surely a plaintiff cannot satisfy the jurisdictional amount any time a private defendant's

annual budget exceeds [the requisite amount in controversy].").11

In our view, these cases firmly establish that this circuit has adopted the plaintiff-viewpoint

rule. Commentators and other courts likewise have read these cases as endorsing the

plaintiff-viewpoint approach. See, e.g., McCarty v. Amoco Pipeline Co., 595 F.2d 389, 392 n. 3 (7th
 12Some courts have suggested that the plaintiff-viewpoint rule is required only in class

actions, and, in non-class actions, courts are free to evaluate the amount in controversy from

either party's perspective. See, e.g., Indianer v. Franklin Life Ins. Co., 113 F.R.D. 595, 603-04

(S.D.Fla.1986). We find nothing in our precedents, however, to justify such a limitation on the

plaintiff-viewpoint rule in this circuit. Vraney involved a single plaintiff, and although Alfonso

involved a class action, it relied on Vraney and other non-class action cases in rejecting valuation

from the defendant's viewpoint. Moreover, we find nothing in the language of either of these

opinions to suggest that they intended such a narrow plaintiff-viewpoint rule. Cf. Webb v.

Investacorp, Inc., 89 F.3d 252, 257 n. 1 (5th Cir.1996) (applying Alfonso in non-class setting). 

6

Cir.1979) (citing Alfonso); 14A Charles A. Wright et al., Federal Practice and Procedure, § 3703

at 61 n. 1 (citing Alfonso and Vraney ).12 Moreover, the Fifth Circuit recently indicated that the

plaintiff-viewpoint rule of Vraney and Alfonso is still controlling. See Webb v. Investacorp, Inc.,

89 F.3d 252, 257 n. 1 (5th Cir.1996) (stating that because value to plaintiff and defendant was the

same, calculation of amount in controversy did not violate plaintiff-viewpoint rule of Alfonso).

We do not read Duderwicz v. Sweetwater Sav. Ass'n, 595 F.2d 1008 (5th Cir.1979), on which

appellee relies, to disturb or undermine the holdings of the cases discussed above. In Duderwicz,

plaintiffs sought to recover interest charged or to be charged by defendant pursuant to allegedly

usurious notes. The court first determined that interest contracted for but not yet paid was properly

subject to forfeiture under Georgia law. 595 F.2d at 1013. Having made this determination, the only

question left for the court to resolve was whether "the pecuniary consequence of this forfeiture may

be considered as part of the value of the matter in controversy." Id. at 1014. The Duderwicz court

held that such a pecuniary consequence provided a proper basis for calculating the amount in

controversy.

In reaching this conclusion, the Duderwicz court stated that "[d]ismissal of a diversity action

for want of jurisdiction is justified only where it appears to a legal certainty that plaintiff cannot

recover the jurisdictional amount." 595 F.2d at 1012 (emphasis added). It further noted that state

law is relevant to define "the nature and extent of the right plaintiff seeks to enforce." Id. (emphasis

added). This language indicates to us that Duderwicz understood and applied the governing

plaintiff-viewpoint rule.
 13As in many cases, the perspective used to determine the amount in controversy was

immaterial in Duderwicz because the value of the object of the litigation was the same whether

measured from the plaintiff's or the defendant's perspective. See also Webb, 89 F.3d at 257 n. 1.

We therefore decline to accord great weight to the Duderwicz court's reference to "those

involved in the litigation." 

 14We recognize that some district courts have read Duderwicz to signal this circuit's

abandonment of the plaintiff-viewpoint rule. See Indianer v. Franklin Life Ins. Co., 113 F.R.D.

595, 604 n. 8 (S.D.Fla.1986) (concluding that Duderwicz indicates that this circuit has "clearly

moved away from" the plaintiff-viewpoint rule); State of Louisiana v. Fedders Corp., 539

F.Supp. 582, 585 (M.D.La.1982) (concluding that Duderwicz may represent "a change of

opinion in this Circuit away from Alfonso "). We think that these courts, however, have

misinterpreted the reasoning and import of Duderwicz. 

 15See 14A Charles A. Wright et al., Federal Practice and Procedure, § 3703 at 66-68 (1985)

("[The either-viewpoint rule] seems to be the desirable rule, since the purpose of a jurisdictional

amount requirement—to keep trivial cases away from the court—is satisfied when the case is

worth a large sum to either party."); 15 James W. Moore, Moore's Federal Practice, §

102.109[4] at 199 (1997) ("[T]he jurisdictional-amount requirement reflects a congressional

judgment that federal judicial resources should be devoted only to those diversity cases in which

the financial stakes rise to a predetermined level. It is difficult to understand why those financial

stakes are not implicated when either party stands to gain or lose the statutorily determined

amount or its equivalent."). 

7

Appellee nevertheless relies on the following language from Duderwicz: "[T]he value of the

matter in controversy is measured not by the monetary judgment which the plaintiff may recover,

but by the pecuniary consequence to those involved in the litigation." Id. at 1014. We do not read

this language to be inconsistent with the plaintiff-viewpoint rule. Rather, the Duderwicz court

simply recognized that the plaintiff's claim for monetary damages need not, by itself, exceed the

requisite statutory amount because the immediate financial consequences of the litigation to the

plaintiff—in that case, the financial benefit of not having to pay the interest contracted to be

charged—may also be considered in calculating the amount in controversy.13 We therefore do not

read Duderwicz to have altered the law of this circuit.14

Although we recognize that there are persuasive arguments to support the adoption of the

either-viewpoint rule,15 as a panel of this court, we remain bound to follow the plaintiff-viewpoint

rule regardless of the wisdom we may attach to it. Only an en banc decision of this court or an

intervening decision of the Supreme Court can alter the controlling law of this circuit.

B. Value of the Object of the Litigation
 16The district court concluded that "in the present posture of the pleadings [EGE] cannot

obtain either monetary relief or a mandatory injunction ordering the City to award the contract to

it." (R1-15:2). 

8

Having determined that the plaintiff-viewpoint rule governs, we now consider whether EGE

has alleged an amount in controversy sufficient to satisfy the diversity statute. We first must

determine the remedies available to EGE under Alabama law, and then consider the monetary value

of the available relief.

The Alabama Competitive Bid Law provides that certain municipal expenditures such as the

purchase of a public safety communications system "shall be made under contractual agreement

entered into by free and open competitive bidding, on sealed bids, to the lowest responsible bidder."

Ala.Code § 41-16-50(a). It further states that "[a]ny taxpayer of the area within the jurisdiction of

the awarding authority and any bona fide unsuccessful bidder on a particular contract shall be

empowered to bring a civil action in the appropriate court to enjoin execution of any contract entered

into in violation of the provisions of this article." Ala.Code § 41-16-61; see also Ala.Code § 41-16-

51(d) ("Contracts entered into in violation of this article shall be void....").

 Although EGE originally sought a declaration that it was the lowest responsible bidder (and

thus entitled to the contract with the City), the district court refused to grant such relief.16 More

importantly, we find no basis in Alabama law for such an award. Rather, under Alabama law, the

sole remedy available to EGE in an action challenging a contract under the competitive bid law is

an injunction voiding the contract between Motorola and the City. See Crest Const. Corp. v. Shelby

County Bd. of Educ., 612 So.2d 425, 432 (Ala.1992) (holding that bid preparation expenses are not

recoverable under this section); City of Montgomery v. Brendle Fire Equipment, Inc., 291 Ala. 216,

279 So.2d 480, 484 (1973) (holding that bid law does not provide basis to enjoin future contracts).

"The courts cannot direct the authorities as to how they shall exercise [their] discretionary power,

nor to whom they must let a contract, but may only enjoin them from doing so illegally...."

Townsend v. McCall, 262 Ala. 554, 80 So.2d 262, 265 (1955).
 17The Alabama Supreme Court has determined that the Alabama legislature intended §§ 41-

16-31 & 41-16-61 to have the same meaning. Crest, 612 So.2d at 432. 

9

 Simply put, the Alabama Competitive Bid Law, which was designed to benefit the public,

"creates no enforceable rights in the bidders." Crest, 612 So.2d at 432. "There is no indication in

this statute [ ] that an unsuccessful bidder has any right or expectancy to insist upon the award of

a contract. To the contrary, the statute is carefully crafted to limit the remedy "to enjoin[ing]

execution of any contract entered into in violation of the provisions of this article.' " Jenkins, Weber

& Assocs. v. Hewitt, 565 So.2d 616, 617 (Ala.1990) (interpreting identical language of another

portion of the Alabama Competitive Bid Law, § 41-16-31) (quoting Urban Sanitation Corp. v. City

of Pell City, 662 F.Supp. 1041, 1044 (N.D.Ala.1986)).17

 Based on these cases, it appears to a legal certainty that EGE can obtain only an injunction

voiding the contract entered into by the City and Motorola. We must now determine whether the

value of this injunctive relief to EGE is sufficiently measurable and certain to satisfy the $50,000

amount in controversy requirement of the diversity statute. EGE points to no authority to suggest

that, in the event of an injunction, the City would be required to rebid the project. Moreover, in the

event that the City did decide to rebid the contract, it appears that the City would be free to submit

an alternative bid proposal for both the APCO 16 and APCO 25 systems, and absent improper

influence, would be free to conclude again that the APCO 25 technology is best suited for serving

its needs. Ericsson, 657 So.2d at 865-67. It is important to remember that on rebid, as always, the

City's "determination of the lowest responsible bidder and its formation of bid specifications may

be exercised with a wide margin of discretion." Id. at 861.

Any benefit that EGE could receive from the injunctive relief awardable by the district

court—namely, the chance to rebid for the contract—is, in our view, too speculative and

immeasurable to satisfy the amount in controversy requirement. See Newman & Sons, Inc. v.

Washington Suburban Sanitary Comm'n, 696 F.Supp. 160, 162 (D.Md.1988) (concluding that

benefit from a rebid is too speculative to satisfy the jurisdictional amount), aff'd, 873 F.2d 1438 (4th
 18EGE has made no efforts in its pleadings or briefs to place a monetary value on its right to

rebid. In its complaint, EGE merely stated that amount in controversy exceeded $50,000. 

10

Cir.), cert. denied, 493 U.S. 854, 110 S.Ct. 158, 107 L.Ed.2d 116 (1989). Because EGE cannot

reduce the speculative benefit resulting from a rebid "to a monetary standard, [ ] there is no

pecuniary amount in controversy." See Texas Acorn v. Texas Area 5 Health Systems Agency, Inc.,

559 F.2d 1019, 1023-24 (5th Cir.1977).18 We therefore hold that EGE has failed to satisfy the

$50,000 amount in controversy requirement of 28 U.S.C. § 1332.

III.

Accordingly, the district court's order is REVERSED, and this case is REMANDED with

instructions to dismiss for lack of subject matter jurisdiction.