IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 94-60444

_______________

BARBARA ALLEN, et al.,

Plaintiffs-Appellants,

versus

R & H OIL & GAS COMPANY, FARRAR OILFIELD SERVICE

AND EQUIPMENT CO., and TRI-STATE OIL SERVICES, INC.,

Defendants,

TRI-STATE OIL SERVICES, INC.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_________________________ (August 29, 1995)

Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The 512 plaintiffs of a joint, state-law tort action (the

"Allen plaint iffs" or "plaintiffs") appeal the removal of their

claims to federal court. They contend that the district court

erred in finding federal subject-matter jurisdict i on under 28

U.S.C. § 1332 (diversity of citizenship), because it improperly

"aggr egated" their claim for punitive damages as a "whole" in

reaching the $50,000.01 amount-in-controversy mark for each

plaintiff. They also claim the district court misapplied the

standard for assessing the amount in controversy when plaintiffs2

challenge defendants' assertion of removal jurisdiction. Because

we find that each plaintiff has an undiv ided claim for the full

a mount of the alleged punitive damages, which on the face of the

complaint more likely than not exceeds the jurisdictional amount,

we affirm.

I.

On May 20, 1990, an oil and gas well exploded near the town of

Heidelberg, Mississippi, causing evacuation of the area. According

to the plaintiffs, who are local residents, they suffered property

damage and wide-rangi ng, physical and mental injuries from the

explosion and release of toxic fumes.

Subsequently, the 512 Allen plaintiffs jointly filed suit in

Mississippi state court against R & H Oil & Gas Company, Farrar

Oilfield Service and Equipment Company, and Tri-State Oil Services,

Inc. (collectively, the "defendants"), which operated the well.

The Allen plaintiffs' individual claims )) the suit is not a class

action )) are based upon theories of negligence and strict liability,

and they seek compensatory and punitive damages. No specific

amount of damages was pled.

The defendants, which are Louisiana corporations, petitioned

for removal to federal c ourt, asserting that there was complete

diversity of citizenship between the set of plaintiffs and the set

of defendants. S ee 28 U.S.C. §§ 1441, 1446. They also contended,

in conclusory terms, that the $50,000.01 amount-in-controversy

requirement was met. Removal was granted.1 The court's full reasoning is as follows:

The 512 plaintiffs elected to file this case as a single action

against defendants and, while their claims for compensatory

damages are separate and divisible, the court, giving due consideration to the nature and purpose of punitive damages, concludes

that the same cannot be said as to plaintiffs' punitive damage

claim. Punitive damages are sought for a single wrong to the

plaintiffs who thus have a common and undivided interest in any

punitive damages award.

3 The plaintiffs, in the discovery phase of the case before a

magistrate judge, then moved to remand on the ground that the

a mount-in-controversy requirement was not met. The gravamen of

their motion was that the defendants had failed to present any

evidence that showed that each plaintiff's claim exceeded § 1332's

$50,000 requirement.

The defendants, in response, made two arguments. First, they

contended that the alleged punitive damage award could be assessed

against each individual plaintiff. In the alternative, they argued

that an exception to the amount-in-controversy's non-aggregation

principle applied, so that each i ndividual plaintiff's potential

punitive damage award could be aggregated and applied to the

$50,000 requirement.

After considering the parties' memoranda, the magistrate

judge, in a "bare bones" order, recommended denyi ng remand. In

upholding the order, the district court reasoned that the aggregation of the potential punitive damages award was proper, as each

plaintiff shared in a common and undivided interest in the claim. 1

The court also considered the plaintiffs' motion to "clarify"

their complaint by amendment to seek explicitly less than the

requisite amount in compensatory and punitive damages. This motion2 The dissent notes that on its face, the complaint alleges that one

of the defendants, Farrar Oilfield Service and Equipment Co. (Farrar"), has

its principal place of business in Mississippi. If that were so, there would

be no diversity of citizenship. See 28 U.S.C. § 1332(c)(1)(deeming "citizenship" for corporations to be either state of incorporation or state where

defendant has its principal place of business). The defendants, however,

argued in the district court that Farrar's principal place of business is not

Mississippi. And, while making no explicit findings of fact, the district

court implicitly agreed by finding subject-matter jurisdiction. No party

continues to press this issue. Accordingly, while we recognize our duty to

determine jurisdiction sua sponte , if necessary, see Mosley v. Cozby

, 813 F.2d 659 (5th Cir. 1987) (per curiam), we see no reason to question this

implicit finding.

4 likewise was denied on the ground that such post-petition amendments were mooted by the finding that the punitive damages alone

met the requisite amount. Finally, the district court, recognizing

the split among district courts in this circuit on the issue of

aggregation of punitive damages, certified this case for immediate

appeal via 28 U.S.C. § 1292(b).

II.

Removal is controlled by 28 U.S.C. § 1441, which provides, in

relevant part, that "any civil action brought in a State court of

which the dis trict courts of the United States have original

jurisdiction, may be removed by the defendant or the defendants, to

the di strict court of the United States . . . ." Such original

jurisdiction exists, for example, if there is "diversity of

citizenship," such as where the suit is between citizens of

different states and the amount-in-controversy exceeds $50,000.

28 U.S.C. § 1332. Here, plaintiffs do not dispute diversity but

question the application of the amount-in-controversy standard. 23 But see Free v. Abbott Labs. (In re Abbott Labs.) , 51 F.3d 524 (5th

Cir. 1995) (holding that under a plain meaning analysis, the Judicial Improvements Act of 1990, as codified in part at 28 U.S.C. § 1367, overrules Zahn in

the class action context), suggestion for rehearing en banc filed

.

4 See Pinel v. Pinel , 240 U.S. 594, 596 (1916) (no aggregation of

claims to shares of an estate arising from one will); Troy Bank , 222 U.S. at

39 (aggregation allowed for enforcement of state law vender's lien as that

claim was single and undivided); Clay v. Field , 138 U.S. 464, 479-80 (1891)

(no aggregation for claim of dower and partnership profits arising from one

tract of land); Eagle Star Ins. Co. v. Maltes , 313 F.2d 778, 780 (5th Cir.

1963) (examining general rule); see generally 1 J AMES W

. M OORE, M OORE'S F EDERAL P RACTICE ¶ 0.97[3], at 917 (2d ed. 1995) ("Basically, aggregation is allowed when the

plaintiffs unite to assert a 'common,' 'joint,' 'integrated' or 'undivided

right.").

5 A.

The Supreme Court has long interpreted § 1332's phrase "matter

i n controversy" not to allow multiple plaintiffs to add together

"separate and distinct demands, u nite[d] for convenience and

economy in a single suit, " to meet the requisite jurisdictional

level. S ee Snyder v. Harris

, 394 U.S. 332, 336 (1969) (quotin g

Troy Bank v. A.G. Whitehead & Co. , 222 U.S. 39, 40 (1911)); Zahn

v. Internatio nal Paper Co. , 414 U.S. 291, 301 (1973) ("[O]ne

plaintiff may not ride in on another's coattails.") (citation

omitted). 3 The general rule is that each plaintiff who invokes

diversity of citizenship jurisdiction must allege damages that meet

the dollar requirement of § 1332.

"Aggregation" of damages allegedly owed to separate plaintiffs, however, may be permitted in the lim ited situation where

"two or more plaintiffs unite to enforce a single title or right in

which they have a common and undivided interest." S nyder

, 394 U.S.

at 335. 4 Unfortunately, the "common and undivided" test retains an

am orphous quality. In applying this standard, many courts have5 See also Insurance Co. of N. Am. v. Chinowith , 393 F.2d 916, 917-18

(5th Cir.) (finding Texas statute on workmen's compensation creates one right

of recovery), cert. denied , 393 U.S. 990 (1968); Kelly v. Hartford Accident &

Indem. Co. , 294 F.2d 400, 409 (5th Cir. 1961) (five plaintiffs enforcing

single wrongful-death cause of action), cert. denied , 368 U.S. 989 (1962);

Phillips Petroleum Co. v. Taylor , 115 F.2d 726, 728 (5th Cir. 1940) (multiple

plaintiffs suing to enforce mineral lease), cert. denied , 313 U.S. 565 (1941).

6 Therefore, this rule is not to be confused with that of joinder under

F ED. R

. C IV. P

. 20, which requires that plaintiffs' claims be transactionally

related. The fact that claims arise from the same transaction or occurrence

is an insufficient justification to allow aggregation. See 1 M OORE , supra

, ¶ 0.97[3], at 920 ("The appropriateness of aggregation depends upon the nature

of the plaintiffs' claims rather than on the source of the right to sue or

transactional relatedness of the claims.").

6 failed to eschew labels. And stating the maxim is far easier than

determining the principles that undergird it. The standards that

have developed in this area largely have their origins in preFederal Rules caselaw and take their modern day form by only

judicial application. Accordingly, we address the recognized

guidelines that so far have evolved before applying them to the

punitive damages claim here.

Courts generally agree that the pla intiffs' claims of right

must be "integrated," meaning that their respective rights to

damages arise from the same legal source. S ee Texas & Pac. Ry. v.

Gentry

, 163 U.S. 353, 362-63 (1896) (holding aggregation p roper

where plaintiffs "all claimed under one and the same title"). 5 The

application of this standard depends upon the history-laden notion

of what constitutes an individual cause of actio n. 6 Therefore, a

necessary first step is an examination of the configuration of the

state-law right at issue. S ee, e .g.

, A sociacion Nacional de

Pescadores a Pequena Escala o Artesanales de Colombia (AN PAC) v.

Dow Quimica de Colombia S.A.

, 988 F.2d 559, 563-64 (5th Cir. 1993)7 See Berman v. Narragansett Racing Ass'n , 414 F.2d 311, 316 (1st Cir.

1969) ("[I]t has long been settled that one factor of considerable importance

on the issue of whether the plaintiffs' interests are aggregable is whether

the defendant has an interest in how the fund will be apportioned if plaintiffs prevail."), cert. denied , 396 U.S. 1037 (1970). See also Green County

v. Thomas' Executor , 211 U.S. 598, 602 (1909) (finding aggregation proper

where defendant "has no interest or concern in the proper division of the

amount due . . . among those who are entitled to share the proceeds of the

verdict."); Gibson v. Shufeldt , 122 U.S. 27, 30 (1887) ("[T]he test is

whether they claim it under one common right, the adverse party having no

interest in its apportionment or distribution among them . . . ."); The

"Connemara" , 103 U.S. (13 Otto) 754, 755 (1881) ("It was a matter of no

consequence to the owners of the property saved how the money recovered was

apportioned among those who had earned it."); Sellers v. O'Connell , 701 F.2d

575, 579 (6th Cir. 1983) ("An identifying characteristic of a common and

undivided interest is that if one plaintiff cannot or does not collect his

shares, the shares of the remaining plaintiffs are increased.").

8 See Bullard v. City of Cisco , 290 U.S. 179, 188-89 (1933) (aggregation not prevented because recovery from bonds and coupons held in trust

(continued...)

7 (examining Texas state law to determine whether fishermen had

common property right in fishing stock harmed by oil spill), cert.

denied

, 114 S. Ct. 685 (1994) (hereinafter " ANPAC "). Again, the

purpose of this inquiry is to determine whether the state law claim

creates one right of recovery. Id. at 564.

Another factor that courts long have used to determine whether

a claim is common or separate is the apportionment of the award.

A claim is more likely to be integrated if the defendant has no

interest in the apportionment of an award among the plaintiffs. 7

Plaintiffs, of course, may have strong interests in the

eventual distribution of awards, but the ultimate separability of

a claim does not defeat its inte grated quality. "Occasionally,

plaintiffs seek to enforce a common interest that is separable

amongst themselves. In such cases, the common nature of the

plaintiffs' interest vis-a-vis the defendant dictates that

aggregation is proper." 1 M OORE

, supra , ¶ 0.97[3], at 921. 88 (...continued)

ultimately would go to beneficiaries); Clay , 138 U.S. at 479 ("The general

principle observed in all is, that if several persons be joined in a suit in

equity or admiralty, and have a common and undivided interest, though separable between themselves, the amount of the joint claim or liability will be the

test of jurisdiction.").

9 District courts in this circuit, however, have disagreed over the

question. In Lailhengue v. Mobil Oil Corp. , 775 F. Supp. 908, 910-14 (E.D.

La. 1991), the court held that punitive damages arising from a single refinery

explosion could be "aggregated." The court found that the plaintiffs had a

"common and undivided interest" in the damages, as their right to punitive

damages arose from a single event or act of conduct (the explosion), the

defendant's conduct was the same with respect to each plaintiff, and the

plaintiffs had a collective interest in creation of a fund sufficient to deter

any alleged misconduct in the future. Id. at 913. Moreover, if the claims

were treated as a class action, no individual plaintiff would have the right

to assert them individually. Id. at 913-14. Nor would plaintiffs' circumstances affect the award. Id. at 914. In sum, that court viewed punitive

damages as a policy-created, public interest owed to the class of plaintiffs

as a whole; the award is aimed at deterring wrongful conduct and is conceptually different from compensation for harm to any individual plaintiff. See

also In re N. Dist. of Cal. "Dalkon Shield" IUD Prods. Liability Litig. , 526

F. Supp. 887, 911 (N.D. Cal. 1981), vacated on other grounds , 693 F.2d 847

(9th Cir. 1982), cert. denied , 459 U.S. 1171 (1983); Martin v. Granite City

Steel Corp. , 596 F. Supp. 293, 297 (S.D. Ill. 1984).

A second class of cases treats punitive damages as individual awards

that are owed to each plaintiff in proportion to their total number. In

Granier v. Eparka Shipping Co. , No. 94-3990, 1995 U.S. Dist. LEXIS 2569 (E.D.

La. Mar. 1, 1995), the court held that no "common and undivided" interest

existed for a group of plaintiffs even if their punitive damages claims all

arose from the same event, because under state law each plaintiff could raise

a separate claim for punitive damages. Id. at *4. That court also relied

upon a reading of Lindsey v. Alabama Tel. Co. , 576 F.2d 593, 595 (5th Cir.

1978), in which we remanded a class action to state court on the ground that

the plaintiff had failed to allege the number of persons in the class, making

it impossible to determine the actual amount sought per plaintiff. Significantly, the language of the opinion suggests the court was including the total

of the punitive damages in this calculation. Id. ; see also Garrett v.

Blanton , No. 89-4367 1993 U.S. Dist. LEXIS 12196 (E.D. La. Aug. 27, 1993)

(treating punitive damage claims separately and distinguishing Lailhengue and

like cases on the ground that they were class actions where plaintiffs joined

to enforce common interest), appeal dism'd , 32 F.3d 567 (5th Cir. 1994) (per

curiam) (unpublished).

A final class of cases alternatively finds that punitive damages are

(continued...)

8 B.

Keeping these standards in mind, we must decide whether joint

claims for punitive damages under Mississippi law present a united

claim for a common and undivided interest. This question is an

issue of first impression on the appellate level in this circuit. 99 (...continued)

either not a common and undivided right or that the defendant's proof of the

quantum of damages is insufficient. See Chadwick v. Shell Oil Co. , 828 F.

Supp. 26, 28 (E.D. La. 1993) (speculating that aggregation might be proper,

but refusing to find jurisdiction because of insufficient proof of supporting

amount); Joseph v. Shell Oil Co. , No. 94-3005, 1994 U.S. Dist. LEXIS 18310

(E.D. La. Dec. 16, 1994) (holding that claim for punitive damages under

Louisiana law was not common and undivided and/or amount was speculative);

Clement v. Occidental Chem. Corp. , No. 94-1315, 1994 U.S. Dist. LEXIS 12387

(E.D. La. Aug. 26, 1994) (same); Becnel v. Marathon Oil Co. , No. 94-1838,

1995 U.S. Dist. LEXIS 4860 (E.D. La. April 10, 1995) (same); Anderson v.

Shell Oil Co. , No. 93-2235, 1994 U.S. Dist. LEXIS 17996 (E.D. La. Dec. 14,

1994) (insufficient proof of quantum).

10 See also Pacific Mut. Life Ins. Co. v. Haslip , 499 U.S. 1, 19 (1991)

(finding that under most states' laws, "punitive damages are imposed for

purposes of retribution and deterrence "); Gertz v. Robert Welch, Inc. , 418

U.S. 323, 350 (1974) (Punitive damages "are not compensation for injury.

Instead, they are private fines levied by civil juries to punish reprehensible

conduct and to deter its future occurrence."); R ESTATEMENT (S ECOND ) OF T ORTS § 908.

One commentary states that only the decisional law of Connecticut, Michigan,

and New Hampshire recognizes a compensatory function for punitive damages. 1

L INDA L

. S CHLUETER & K ENNETH R

. R EDDEN , P UNITIVE D AMAGES § 1.4(B), at 17 & n.3 (2d ed. 1989).

A more recent commentary adds Texas but omits New Hampshire. See 1 J AMES D

. G HIARDI & J OHN J

. K IRCHER , P UNITIVE D AMAGES L AW AND P RACTICE , tbl. 4-1, at 4-47 to 4-52 (1994)

(summary table on states' positions on punitive damages). In contrast to the

conclusion reached by Ghiardi and Kircher regarding Texas law, however, this

court in Estate of Moore v. Commissioner , 53 F.3d 712 (5th Cir. 1995), has

held that under Texas state law, punitive damages have no compensatory

purpose.

9 We begin by examining the nature of punitive damages.

Punitive damages punish. The almost unanimous rule is that

" [p]unitive damages by definition are not intended to compensate

the injured party, but rather to punish the tortfeasor whose

wrongful action was intentional or malicious, and to deter him and

others from similar extreme conduct." C ity of Newport v. Fact

Concerts, Inc. , 453 U.S. 247, 267 (1981). 10

Mississippi's controlling law on punitive damages follows the

majority rule. According to the Mississippi Supreme Court, a

reasonable instruction on the state's law of punitive damages is as

follows:

Punitive damages are added damages aw arded for public

service in bringing a wrongdoer to account, as an example11 These individual suits appear functionally separate, since caselaw,

albeit limited, supports the argument that previous awards would not limit the

ability of subsequent plaintiffs to be awarded further punitive damages. See

ABA S PECIAL C OMM. ON P UNITIVE D AMAGES , P UNITIVE D AMAGES: A C ONSTRUCTIVE E XAMINATION 71-85 (1986)

(continued...)

10 to warn and deter others from repeating t he same act.

They are never awarded to benefit the injured party or as

a matter of right, but rather to punish and to compel the

wrongdoer to have due and proper regard for the rights of

the public.

McGowan v. Estate of Wright

, 524 So. 2d 308, 310 (Miss. 1988); s ee

also Wesson v. United States

, 48 F.3d 894, 899-900 (5th Cir. 1995)

(examining nature of punitive damag e s under Mississippi law).

Mississippi's legislature recently codified this view of the law,

fully effecti ve as of July 1, 1994. S ee M ISS

. C ODE A NN

. § 11-1-65

(Supp. 1994).

Punitive damages in Mississippi therefore are fundamentally

collective; their purpose is to p rotect society by punishing and

deterring wrongdoing. I d. ; see 1 S CHLUETER & R EDDEN

, supra

, §§ 2.0 to

2.2 (examining purposes and policie s behind punitive damages).

Their focus is not any one individual plaintiff; instead, the award

is tailored to the defendant's wealth and wrongdoing. See Andrew

Jackson Life Ins. Co. v. Williams

, 566 So. 2d 1172, 11 90 (Miss.

1990) (examining factors that juries may consider in dete rmining

quantum of punitive damages award); s ee also M ISS

. C ODE A NN

. § 11-1-

65(1)(e) (listing factors for jury to consider). The benefits of

the award are meant to accrue to society.

Because punitive damages in Mississippi are not compensatory,

they are individual awards in fun ction only. While separate

plaintiffs may seek an award in separate cases, 11 the narrow right11 (...continued)

(examining the potential for multiple punitive damage award, "[o]ne of the

thorniest and most hotly contested issues in punitive damages today") ; Andrea

G. Nadel, Annotation, Propriety of Awarding Punitive Damages to Separate

Plaintiffs Bringing Successive Actions Arising Out of Common Incident or

Circumstances Against Common Defendant or Defendants ("One Bite" or "First

Comer" Doctrine) , 11 A.L.R.4th 1261 (1994) (collecting cases).

12 The R ESTATEMENT (S ECOND ) OF T ORTS § 908(b), for example, states that "[i]n

assessing punitive damages, the trier of fact can properly consider the

character of the defendant's act, the nature and extent of the harm to the

plaintiff that the defendant caused or intended to cause and the wealth of the

defendant." (Emphasis added.) Thus, while punitive damages are assessed in

part by measuring the harm to an individual plaintiff, that focus occurs

because that factor is relevant to the degree of the wrong. No principle

limits the measurement to the harm to one plaintiff where the defendant's

actions harmed many.

11 to seek such damages exists only because public policy as expressed

through state statutes and the common law so dictate. S ee

generally 22 A M

. J UR

. 2 D D AMAGES § 734, at 787 (1988) ("So viewed,

punitive damages are allowed on grounds of public policy and in the

interest of s ociety and for the public benefit.") (footnotes

omitted). An individual's damages or harm is relevant only to

assessing the defendant's wrongdoing. 12

Finally, the general rule is that a plaintiff does not have a

claim of right to punitiv e damages, and "it is always within the

discretion of the jury or trial judge to withhold them." W. P AGE

K EETON ET AL

., P ROSSER AND K EETON ON THE LAW OF T ORTS § 2, at 14 (5th ed.

1984); s ee Wirtz v. Switzer

, 586 So. 2d 775, 783 (Miss. 19 91)

("The award of punitive damages, along with the amount of such, are

[sic] withi n the discretion of the trier of fact."). In other

words, a claim for punitive damages is not by itself an independent

tort. Hence, it is only because of the unique nature of these

exemplary awards that they exhibit some of the characteristics of12

a separate claim of right.

C.

Accordingly, while punitive damages do not fall neatly into

either the "non-aggregation" caselaw or the "common and undivided

interest" exception, the unique nature of these awards requires, at

least in Mississippi, that the full amount of alleged damages be

counted against each plaintiff in determining the jur isdictional

amount. As punitive damages are collective awards, each plaintiff

has an integrated right to the full amount of an award. An award's

ultimate distribution does not change this result.

Punitive damages are, to use the language of the caselaw,

undivided claims of right with a potentially separable award.

Here, each of the 512 plaintiffs was empowered to bring a claim for

punitive damages separately. The fact that they choose not to

pursue their claims i ndividually does not limit each plaintiff's

alleged entitlement to the award; it only affects its distribution. The limiting factor here was the plaintiffs' decision to

file jointly.

O f course, a defendant's interest in seeing indiv idual

plaintiffs' cases fail is greatly affected by the pro cedural

posture of such claims. In class actions or multi-plaintiff suits,

the defendant's potential exposure to a large punitive damage award

is not affected by the failure of individual claims as long as one

plaintiff is successful. Accordingly, in that situation, the

defendant has no interest in the distribution of the award, a fact13 In Maxey , the district court examined the problem of punitive

damages in the mass torts and products liability area in some detail:

[W]hen a plaintiff attempts to recover punitive damages urging

willful conduct, a defendant feels the pinch of multiple exposure.

The pinch is that the amount of an exemplary award is not wholly

controlled by the extent of injury suffered by the immediate

plaintiff so that multiple cases can indeed by devastating. See

Roginsky v. Richardson-Merrell, Inc. , 378 F.2d 832 (2d Cir. 1967).

Arguably, substantive right has here outstripped its procedural

brother because there is no available device for distribution of

an exemplary damage award among all injured. But because exemplary damages do not have a compensatory function, difficulty in

equitably distributing awards is not the prime problem. In other

(continued...)

13 that has long supported the conclusion that the plaintiff's claims

of right are common and undivided. S ee, e.g.

, Berman

, 414 F.2d at

316.

Where a defendant faces a series of individual claims, it is

affected strongly by the success or failure of each individual

claim for punitive damages, because the general rule is that

previous awards are not a limiting factor on subsequent awards. We

thus recognize that while plaintiffs generally share an undivided

interest in being awarded punitive damages, that interest is not

common in the sense that there is one and only one award that they

would split equally.

Nonetheless, we do not find that the potential for multiple

liability makes the plaintiffs' claims separate. The seeming

anomaly of multiple exposures for punitive damages arising out of

the same conduct is justified because of its extreme potential to

punish and deter. S e e Maxey v. Freightliner Corp. , 450 F. Supp.

955, 962 (N.D. Tex. 1978) (Higginbotham, J.) (examining Texas state

law), aff'd

, 623 F.2d 395 (5th Cir. 1980), reh'g on other grounds

,

665 F.2d 1367 (5th Cir. 1982 ) (en banc). 1 3 Such a harsh, and to13 (...continued)

contexts, the windfall nature of exemplary awards is tolerated as

a price of private achievement of a public goal of deterrence.

But pointedly those cases are in procedural contexts which have

available devices for preventing deterrence from becoming destruction. This is not to denigrate the decision of the jury. Each

jury has before it only one case )) it is the aggregate effect of

several juries' faithful adherence to the law that poses risk of

ultimate destruction. This is true although each award of exemplary damages was by an accurately instructed and wholly fair

jury. The hazards presented by separate awards of exemplary

damages for design defects common to thousands of products are

real and apparent. Understandably, each plaintiff's counsel dons

the robes of the public interest. And the premise of the private

attorney general's role is that private interests of a plaintiff

and the public are parallel. The rub, however, is that after the

first award of exemplary damages, that parallelism is lost.

Present tort law accepts the idea that manufacturers ought to be

checked by deterrent based remedies. Yet we ought not in our

quest for public safety lose sight of the obvious )) with no products, there are no consumers.

450 F. Supp. at 962.

14 some absurd, result is "tolerated as a price of private achievement

of a public goal," not because it provides a windfall to individual

plaintiffs. Id. The award is not the plaintiffs' but society's.

Finally, under the accepted view of punitive damages as a

public good, no aggregation )) meaning the addition of sepa rate

claims )) is necessary, as each plaintiff's share of an award is not

added up to exceed $50,000 )) just as one award does not subtract

from a future claimant's entitlement. Instead, the claims, while

jointly tried, are treated as belonging to each plaintiff for

jurisdictional purposes. In sum, because of the collective scope

of punitive damages and their nature as individual claims under

Mississippi law, we hold that under Mississippi law the amount of

such an alleged award is counted against each plaintiff's required

jurisdictional amount.14 We recently have noted that this rule may allow plaintiffs to

manipulate federal jurisdiction if their pleadings do not limit the actual

damages they ultimately may collect. De Aguilar v. Boeing Co. , 47 F.3d 1404,

1410 (5th Cir. 1995) (hereinafter " de Aguilar II "). Accordingly, we held that

in cases where an exact amount has been pled, if a defendant can prove by a

preponderance of the evidence that the amount in controversy exceeds the

jurisdictional amount, removal is proper unless the plaintiff shows that at

the time of removal he was legally certain not to be able to recover that

amount. Id. at 1412. In other words, where the plaintiff's claims can be

proved to be of the type that are worth more than $50,000, they can be removed

unless the plaintiff can show he is legally bound to accept less.

15 III.

The plaintiffs also raise the issue of the proper burden of

proof for measuring a defendant's assertion of the jurisdictional

amount. While this issue has not been without some controversy in

this circuit, recent caselaw has settled much of it.

A.

While it is well settled that the removing party bears the

burden of establishing the facts necessary to s how that federal

jurisdiction exists, G aitor v. Peninsular & Occidental S.S. C o.

,

287 F.2d 252, 253-54 (5th Cir. 1961), we have applied different

standards of proof depending upon whether the complaint alleges a

dollar amount of damages. Where the plaintiff has alleged a sum

certain tha t exceeds the requisite amount in controversy, that

amount controls if made in good faith. S t. Paul Mercury Indem. Co.

v. Red Cab Co.

, 303 U.S. 283, 289 (1938). In order for a court to

refuse jurisdiction "it [must] appear to a legal certainty that the

claim is really for less than the jurisdictional amount." Of

c ourse, if a plaintiff pleads damages less than the jurisdiction

amount, he generally can bar a defendant from removal. 14 Thus, in16

the typical diversity case, the plaintiff remains the master of his

complaint.

The converse situation to St. Paul Mer cury is where a

plaintiff fails to specify the amount in controversy. This

situation )) not unusual in this circuit, as both Texas and Louisiana

state civil procedure disallows damage claims for specific amounts,

see T EX

. R. C IV

. P. 47; L A

. C ODE C IV

. P ROC

. A RT . 893 )) does not impose

the same "legal certainty" test. Instead, "[w]hen the plaintiff's

complaint does not allege a specific amount of damages, the

r emoving defendant must prove by a preponderance of the evide nce

that the amount in controversy exceeds $50,000." D e Aguilar v.

Boeing Co.

, 11 F.3d 55, 58 (5th Cir. 1993) (hereinafter " de

Aguilar I ").

We have never listed explicitly what types of proof are

acceptable under this standard. Some caselaw, however, guides the

district court's analysis. First, a court can determine that

removal was proper if it is facially apparent that the claims are

likely above $50,000. S ee de Aguilar I

, 11 F.3d at 57; c f. ANPAC

,

988 F.2d at 566 (holding, in part, that remand was proper where the

amount was not otherwise "facially apparent"). If not, a removing

attorney may support federal jurisdiction by setting forth the

facts in controversy )) preferably in the removal p etition, but

sometimes by affidavit ) ) that support a finding of the requisi t e

amount. See Garza v. Bettcher Indus. Inc. , 752 F. Supp. 753, 763

(E.D. Mich. 1990).

Removal, however, cannot be based simply upon conclus o ry17

allegations. G aus v. Miles, Inc.

, 980 F.2d 564, 567 (9th Cir.

1992). Finally, under any manner of proof, the jurisdictional

f acts that support removal must be judged at the time of the

removal, and any post-petition affidavits are allow able only if

relevant to that period of time. ANPAC , 988 F.2d at 565.

Here, plaint iffs dispute whether the district court applied

the proper burden of proof necessary to determine the "jurisdictional fac ts" for removal. This argument is made in two parts.

First, the plaintiffs spill much ink dissecting caselaw in order to

argue that this circuit does not have an established standard.

This argument is meritless, as de Aguilar I established that a

party seeking removal of a claim that does not allege a specific

amount need only prove the jurisdictional facts by a preponderance

of the evidence.

In the alternative, the plaintiffs argue that the district

court erred in applying de Aguilar I by requiring less than

"preponderance" proof. To support this argument, the plaintiffs

read the district court's order denying their motion for remand to

apply implicitly a "possibility of liability" standard. They also

cite language from the defendants' op position to the remand that

they believe is conclusionary.

The district court did not state explicitly what standard it

was applying, but only stated that "the magistrate judge's implicit

concl u sion that aggregated punitive damages could well exceed

$50,000 can certainly not be characterized as 'clearly erroneous'

or 'contrary to law.'" (emphasis added). A "could well" standard15 We note that the district court here did not make any explicit

factual findings, because the review it was engaged in focused solely upon the

face of the complaint. Accordingly, F ED. R

. C IV. P

. 52(a) does not apply, and we

are not limited in our review of the record. See Icicle Seafoods, Inc. v.

Worthington , 475 U.S. 709, 714 (1986) (holding that appellate court factfinding is not allowed even for determination of de novo question of law;

proper procedure is to remand for correct fact-finding).

16 The efficient procedure is to not require such "summary judgement"

proof until after the initial consideration of the face of the complaint.

This bifurcation of the process is justified under the general mandate of the

rules, F ED. R

. C IV. P

. 1, and the fact that such proof is irrelevant and wasteful

if jurisdiction is facially apparent.

18 sounds more like a "possibility" standard of proof, rather than a

"more likely or not" standard. As such, the district court's

conclusion and, hence, its order are based upon an erroneous view

of the law.

We need not remand the case, however. The application of our

proper standard of review ) ) an issue that we have never directl y

addressed )) allows us to affirm. The procedural posture of this

case is si milar to a F E D

. R. C IV

. P. 12(b)(6) motion or summary

judgment motion. We apply a like standard of review: d e novo

,

applying the same standard of review as should the district court. 15

In this case, where the district court is making the "facially

appar ent" determination, the proper procedure is to look only at

the face of the complaint and ask whether the amount in controversy

was likely to exceed $50,000. In situations where the facially

apparent test is not met, the district court can then require

parties to submit summary-judgment-type evidence, relevant to the

amount in controversy at the time of removal. 1 6 We would review

that determination in a fashion similar to our F ED R. C IV

. P. 56

review.19

In this case, the total claim for punitive damages is more

likely than not to be for $50,000 or more, as it involves three

companies, 512 plaintiffs, and a wide variety of harm allegedly

caused by wanton and reckless conduct. A court, in applying only

common sense, would find that if the plaintiffs were successful in

their punitive damages claim, they would collect more than $50,000.

Accordingly, we hold that the face of the complaint supports the

assertion of federal jurisdiction.

B.

The plaintiffs also sought to amend their complaint in order

to "clarify" the amount in controversy. This argument lacks merit

in lig ht of de Aguilar I , 11 F.3d at 57 (holding that amount in

controversy may be determined from face of the complaint), and St.

Paul Mercury

, 303 U.S. at 292 (holding that post-removal events

cannot deprive a court of jurisdiction once it has attached). Once

the district court found that it had jurisdiction, the jurisdiction

is deemed to have vested in the court at the time of removal. An

amendment to th e complaint limiting damages for jurisdictional

purposes cannot divest jurisdiction.

IV.

In conclusion, we hold that in Mississippi, a joint claim for

punitive damages by multiple plaintiffs should be assessed against

each plaintiff as a whole in determining the jurisdictional amount.

Here, a claim for punitive damages against three oil companies for20

wanton and reckless conduct that caused an oil well explosion, the

evacuation of a town, and harm to 512 people is, on its face, more

likely than not for more than $50,000. And, no post-petition

amendment of the complaint can divest the district court of

jurisdiction. We therefore AFFIRM.21

DeMOSS, Circuit Judge, dissenting:

There is much in the majority opinion with which I agree, but

there is more with which I disagree, particularly the ultimate

conclusions of the majority regar ding removability. I write

therefore to register my dissent.

I agree with the maj ority that the beginning point in

determining the propriety of removal of a case from state court to

federal court is to look at the "face of the complain t" in state

court and apply the "facially apparent" test. Looking at the

amended complaint last filed in state court before the notice of

removal, I conclude that the complaint was on its face not

removable for the following reasons:

a. All of the defendants in this case are corporations.

Under 28 U.S.C. § 1332(c)(1) "a corporation shall be deemed to

be a citizen of any state by which it has been incorporated

and of the state wher e it has its principal place of business". The allegations of the amended complaint state that

each corporate entity is a "Louisiana corporation", but there

is otherwise no allegation as to the state "by which it has

been incorporated". Furthermore, one of the defendants,

Farrar Oilfield Service and Equipment Co., Inc., is expressly

alleged in the amended complaint to have a "principal place of

business in the State of Mississippi". That allegation makes

this corp orate defendant a citizen of the State of Mississippi, which breaks the complete diversity between all

plaintiffs and all defendants required under 28 U.S.C. § 133222

and violates the requirement of 28 U.S.C. § 1441(b) that none

of the defendants be a citiz en of the state in which such

action is brought.

b. The amended complaint shows that it was filed on May

20, 1993, and contains express allegations that the well

blowout and fire which was the source of pla intiffs' damage

claims occurred on the afternoon of May 29, 1990. The

plaintiffs' conclusory allegations of injury and damage on the

face of the compl aint must be evaluated through the common

sense filter of the lapse of almost three years of time

between the occurrence of the casualty and the filing of the

complaint.

c. The amended complaint does not contain any express

allegation as to t he monetary amount of any damages, either

actual or punitive.

d. Exhibit A to the amended c omplaint sets forth the

names of all the variou s plaintiffs, consisting of approximately 143 family groups of adults and minor children who are

appearing through their mothers and next friends. All of

these plaintiffs are alleged to be citizens of the State of

Mississippi. Other than the grouping of these plaintiffs in

family groups by last name, there are no allegations in the

amended compl aint that there is any family relationship

between and among all of the plaintiffs. There are no

allegations establishing any criteria for a class action by

all the plaintiffs. There is no allegation that all of the23

plaintiffs are joint owners of any property nor that any group

of the plaintiffs are joint owners of any property. There is

no allegation that all of the plaintiffs are partners in any

business activity nor that any group of the plaintiffs are

partners in any busines s activity. There is no allegation

that any of the plaintiffs are shareholders of any corporate

entity which was the owner of any damaged property. And,

there is no allegation that any of the plaintiffs joined as

plaintiffs in this lawsuit pursuant to an agreement to share

recoveries to which they might individually be entitled with

any other plaintiffs.

On it s face, therefore, the original complaint was not removable

because it did not demonstrate complete d iversity between plaintiffs and defendants and it did not allege that there was at least

$50,000 in controversy in the lawsuit.

I agree with the language of the majority o pinion which

indicates (i) that it is well settled "that the removing party

bears the burden of establishing the facts necessary to show that

federal jurisdiction exists," Gaitor v. Peninsular & Occidental

S.S. Co.

, 287 F.2d 252, 253-54 (5th Cir. 1961); (ii) that when the

original state court complaint does not specify the dollar amount

in controversy, "the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds

$50,000"; De Aguilar v. Boeing Co. ( De Aguilar I ), 11 F.3d 55, 58

(5th Cir. 1993); and (iii) that multiple plaintiffs are not

permitted to add together "separate and distinct demands, united24

for convenience and economy in a single suit" to meet the requisite

jurisdictional amount, Snyder v. Harris

, 394 U.S. 332, 336 (1969).

I turn now to an analysis of whether the removing defendants

satisfied their burden of proving the jurisdictional facts.

The notice of removal in this case was filed by one of the

defendants, Tri-State Oil Services, Inc. In its removal petition

Tri-State made the following allegations:

a. That the case was removable because of complete

diversity between plaintiffs and defendants and because there

was at least $50,000 in controversy;

b. That each of the three corporate defendants "was a

corporation organized under the laws of the State of Louisiana, but had ceased to engage in any business activity" at the

time of filing suit;

c. That "upon information and belief Farrar [one of the

defendants] has not been served with a summons and copy of the

complaint"; and

d. T hat "R & H [another defendant] is currently

unrepresented by counsel but joins in this notice of removal".

The notice of removal was signed in behalf of Tri-State Oilfield

Service, Inc. by its counsel of record, but contains no signature

blank in behalf of defen dant R & H. Likewise, the truth of the

facts alleged in the notice of removal are not attested by any

affidavit. The notice of removal did contain a statement that

defendants "reserve the right to file additional support for this

notice of removal by way of affidavits, memorandum and argument",25

but , the record does not contain any further affidavits dealing

with jurisdictional facts. The plaintiffs timely filed a motion to

remand to the state court asserting that there was no showing that

the amount in controversy exceeded $50,000. At this point, it

seems to me, that there should have been some tender of evidence

upon which the district court could have resolved the disputed

jurisdictional facts. Both plaintiffs and defendants submitted

memoranda of authorities in support of their respective positions,

but I can find nothing in the way of a transcript of oral testimony, nor are there any affidavits or other summary judgment type

evidence in the record to resolve the disputed jurisdictional

facts. In my view the following jurisdictional facts are unresolved:

a. What happened to the defendant Farrar? Was Farrar

ultimately served in the state court proceeding? If so, its

joinder would be required in the notice of removal.

b. What does the allegation in the notice of removal

that all defendants have "ceased to engage in a ny business

activity" mean? Have these corporate entities been dissolved?

If so, who are the parties to whom assets and liabilities were

passed on dissolution and what is the residence of such

successors? If they have not been dissolved, where is the

principal place of busine ss of each corporation? Proof of

these facts regarding corporate status and activity requires

at the very least an affidavit of a corporate officer. The

general allegations of counsel in the notice of removal are26

not sufficient.

c. What is the nature and extent of the property damage

and personal injury sustained by each of the plaintiffs?

d. As between the three defendants, which entity had

the operational control and decision-making responsibility of

the wel l site, which would put that entity under a duty to

conduct its operations with due regard for the safety of

others and render it liable for a gross negligence and

reckless disregar d finding? If that entity was Farrar and

Farrar has never been served, then Farrar was not before the

district court and no punitive damages could be awarded.

All of these jurisdictional facts have been left esse ntially

unresolved. While there was some sort of a "hearing" before the

magistrate judge at which the parties were permitted to argue their

positions, no transcript was made of that hearing and no party

makes reference to any testimony tendered at that hearing. The

magistrate judge made no specific findings of fact nor conclusions

of law, but simply entered an "Order Overruling Motion to Remand"

which stated:

The court having heard and considered the plaintiffs'

motion to remand, briefs and a rguments of counsel and

authorities cited finds that each individual plaintiff

maintains a cause of action for punitive damages and that

under the circumstanc es and authorities the motion to

remand is not well taken and should be denied. (Citing

cases.)

The c ases cited in the magistrate judge's memorandum were two

federal district court decisions (one published, one not published)

from the Southern District of Mississippi dealing with jurisdic-27

tional amount s in declaratory judgment actions by an insurance

carrier against its insured where there is the potential of a

punitive damage claim based on bad faith by the carrier in dealing

wit h the claim. A llstate Ins. Co. v. Hilbun

, 629 F. Supp. 698

(S.D. Miss. 1988), and A tlanta Cas. Co. v. Jones , No. J90-

0459(L) (S.D. Miss. Feb. 11, 1991). The third case cited by the

magistrate judge, Lailhengue v. Mobil Oil Corp. , 775 F. Supp. 908

(E.D. La. 1991), has some factual similarities to the present case

(claims for damages from refinery explosion to nearby residents),

but relates to a casualty which occurred in Louisiana and would be

governed by Louisiana punitive damages law.

The plaintiffs applied for review of the magistrate judge's

ruling by the district judge. In deciding not to review the

magistrate judge's order, the district court based its decision on

the following conclusions of law:

a. "That in this case, aggregation of punitive damages

is proper in determining the issue of whether the amount in

controversy requirement for jurisdiction has been satisfied";

b. "While their claims for compensatory damages are

separate and divisible, the court, giving due consideration to

the nature and purpose of punitive damages, concludes that the

same cannot be said as to plaintiffs' punitive damages claim.

Punitive damages are sought for a single wrong to the plaintiffs who thus have a common and undivided interest in

punitive damages award"; and

c. That the "magistrate judge's implicit conclusion28

that aggregated punitive damages could well exceed $50,000 can

certainly not be characterized as `clearly erroneous' or

`contrary to law'." (Emphasis added.)

The district court offered no statutory or common law support for

any of these conclusions.

During the pendency of this lawsuit, the Mississippi Legislature adopted a statutory provision dealing with punitive damages,

M ISS

. C ODE A NN . § 11-1-65 (Supp. 1994). The relevant provisions of

that statute were made expressly applicable to this and all other

cases pending as of July 1, 1993. Nonetheless, neither the

magistrate judge's order nor the district court's order evaluates

the impact of the Mississippi statute on jurisdiction in this case.

The majority opinion makes only a passing reference to this statute

stating that it "codified" Mississippi law regarding punitive

damages. The majority, however, gives no substantive consideration

to the terms and provisio ns of this statute in arriving at its

conclusions that Mississippi regards punitive dama ges as an

"individual award in function only," and that, without regard to

any showing of compensatory damage, punitives can be relied upon to

satisfy the jurisdictional amount in this case. Because I believe

that Erie requires federal courts to give controll ing effect to

state law in cases where our jurisdiction could be based solely on

diversity of citizenship, and because I believe the Mississippi

punitive damage statute cannot possibly be interpreted to support

the conclusion reached by the majority in this case, I turn to a17 See generally John F. Corlew, An Historical Overview of

Punitive Damages in Mississippi , 63 Miss. L.J. 583 (1994).

29 detailed examination of that statute. 17

Section 11-1-65 actually changes Mississippi law in at least

two important ways. First and most importantly, the statute

requires proof by "clear and convinci ng evidence" of the conduct

which is made the subject of punitive damages. While this

heightened proof requirement may not be determinative by itself of

the availabil ity of punitive damages in this case, it clearly

indicates that the recovery of punitive damages will be tested by

proof over and above the previously applicable preponderance of the

evidence test. Second, the Mississippi statute on punitive damages

contemplates a bifurcated process for dealing with actual or

compensatory damages, on the one hand, and punitive damages, on the

other. Note that the statute expressly requires that the trier of

fact "shall first determine whether compensatory damages are to be

awarded and in what amount, before addressing any issues related to

punitive damages ". § 11-1-65(1)(b) (emphasis added). It further

states that "if but only if" compensatory damages have been

awarded, the court shall commenc e an evidentiary hearing to

determine whether punitive damages may be considered. If the court

then determines that punitive damages may be submitted to the trier

of fact, then the trier of fact determines "whether to award

punitive damages and in what amount". § 11-1-65(1)(d). In

addition, the Mississippi statute expressly defines factors which

the trier of fact may consider in determining whether to award18 While these last two statutory provisions, specifying

factors to be considered in computing punitive damages, may not

be applicable to this case, they are indeed codifications of

binding Mississippi precedent. See

, e.g.

, C & C Trucking Co. v.

Smith , 612 So.2d 1092 (Miss. 1992).

19 Interestingly, the original house bill, which ultimately

became § 11-1-65 contained the following provision in Section

3(d)(iii):

(iii) Only one (1) award for punitive damages may

be made against a defendant for the same act, decision,

omission or course of conduct.

(H.B. No. 1270, Regular Session, 1993). But this subpart (iii)

was deleted by the Judiciary Committee and does not appear in the

final bill as passed. To my mind, this is conclusive that the

Legislature intended that there be multiple claims for punitive

damages, such as those allegedly arising out of the well explosion in this case.

30 punitive damages and the amounts thereof, which include the nature

and extent of damages sustained by the c laimant, as well as the

financial condition of the party against whom punitive damages are

sought. Finally the Mississippi statute on punitive damages calls

for a rev iew by the court to determine the reasonableness of the

punitive damages and requires the court to consider "mitigation" of

punitive damages by considering civil penalties levied against the

defendant for the same conduct in other actions. 18

It is important also to note what the Mississippi statute on

punitive damages does not say. Nowhere in the statute is there

anything that says that there sha ll be only one single claim for

punitive damages arising out of any one set of circumstances. 1 9

There is nothing in the statute that says that if more than one

person sustains compensatory damages from a casualty, all of such

persons shall have a joint or common claim against the party guilty31

of punitive damage conduct. Nowhere in the statute is there any

language that says that a punitive damage award would be shared on

a per capita basis nor on a pro rated damage basis between several

parties who each sustain compensa tory damage out of a single

casualty. To the contrary, the overall thrust of the Mississippi

statute on punitive damages is that each claimant, who proves that

he suffered c ompensatory damages and who proves by "clear and

convincing" evidence that a defenda nt has committed conduct

authorizing the recovery of punitive damages, is entitled to a

submission to the jury of a punitive damage claim; and subject to

the court's review of the reasonableness of the jury's finding,

that individual is entitl ed to the recovery of those punitive

dam ages. Furthermore, nowhere does the statute use the words

"joint", "common", "collective", which are the key words relied

upon by the district court and the panel majority to justify

aggregation of all punitive damag e claims by all plaintiffs.

L ikewise, there is no Mississippi Supreme Court case involving

facts similar to the mass tort situation involved in this case

where the Mississippi Supreme Court has concluded that there is

some jointness, collectiveness or commonality to the claims of the

multiple plaintiffs in such actions. Accordingly, from my review

of the Mississippi cases and statute on punitive damages, I come to

the following conclusions:

a. Under Mississippi law, punitive damages are dependent upon and appurtenant to the existence of a recovery of20 This same conclusion was reached by another panel of

this court in the case of Greer v. Burkhardt, Inc. , No. 94-60306

(5th Cir. July 20, 1995), 58 F.3d 1070 (5th Cir. 1995), where on

facts and legal proceedings which reached final judgment prior to

the adoption of the Mississippi punitive damages statute, the

panel reviewed several Mississippi Supreme Court cases and

concluded that "in a case of zero actual damages, we believe that

Mississippi law does not allow him any punitive damages."

32 compensatory damages; 20

b. Absent an express holding of the Mississippi Supreme

Court that punitive damage claims of multiple plaintiffs are

to be determined on a joint or common basis, the plain reading

of the Mississippi punitive damage statute contemplates that

the punitive damage claim of each claimant w ill be separate

and distinct, just as the compensatory damage claims of that

claimant are separate and distinct;

c. Given the bifurcated procedure for first determining

compensatory damages and then determining punitive damages,

which is mandated by the Mississippi punitive damage statute,

each plaintiff in a multi-plaintiff case who was found to have

suffered compensatory damage would be entitled to a separate

submission of his claim for punitive damages, rather than a

blanket submission of a single issue of punitive damages as to

all such plaintiffs; because otherwise, the jury would be

depri ved of the opportunity to evaluate the differences in

character and amoun t s of compensatory damage which would

almost certainly exist between the multiple plaintiffs and

which the Mississippi punitive damage statute requires to be

considered as an element of fixing each claim of punitive33

damages. On the other hand, the blanket submission of a

single issue as to all punitive damages, as inferred by the

majority, would result in a lump sum award of a single amount

of punitive damages b ut with no basis in the statute nor in

Mississippi common law as to the formula by which such lump

sum award would be divided amongst the various multiple

plaintiffs. Some may say that the best policy is to divide a

lump sum punitive damage award on a per capita basis and

others may say that the best way to divide a lump sum punitive

damage award is in the proportion of the amount of each

individual claimant's compensatory damages to the total of all

compensatory damages. But, in any event, the choice is a

legislative choice which the Mississippi Legislature did not

make in the Mississippi punitive damage statute; and it is a

choice which the courts need never reach if they read the

Mississippi statute as requiring separate jury findings as to

the punitive damages of each individual plaintiff in a multiplaintiff suit, as it seems to so plainly say.

This is not a class actio n. Each of the plaintiffs have

joined in the original complaint in each of their respective names

to assert what the majority clearly recognizes are their respective

"separate and distinguishable" claims for compensatory damages.

Had there been no allegations regarding punitive damages, Snyder v.

Harris would clearly be the controlling law and removal from state

court to federal court would be valid only as to each plaintiff

whose compensatory damages were determined to likely exceed34

$50,000. The face of the original complaint in state court

certainly does not expressly quantify these compensatory damages of

each plaintiff and the burden therefore fell upon the removing

defendants to demonstrate by a prepon derance of the evidence the

nature and extent of each plaintiff's injuries and the li kely

amount of compensatory damages for such injuries. The defendants

wholly failed to satisfy this burden. Rather, the defendants

focused the attention of the magistrate judge and the district

judge on the general allegations regarding punitive damages. Here

again, the face of the original complaint contained no express

allegatio n as to the amount of punitive damages which each

plain tiff was claiming; and, therefore, the burden fell upon the

removing defendants again to establish by a preponderance of the

evidence that the quantum of punitive damages which each plaintiff

could reasonably exp ect to receive would produce an amount in

controversy exceeding $50,000 when added to the compensatory damage

of each respective plaintiff. This burden the defendants wholly

failed to satisfy. Rather, the removing defendants argued and the

d istrict court concluded that punitive damages are not "separate

and divisible" as to each plaintiff, but rather constitutes some

sort of a single claim for a "single wrong" in which all plaintiffs

have "a common and undivided interest". Additionally, the district

court concluded t hat the "implicit conclusion" of the magistrate

judge "that aggregated punitive damages could well exceed $50,000"

was not "clearly erroneous". All of these determinations were made

by the district court "based simply upon conclusory allegations" in35

the original complaint or the notice of removal which the panel

majority recognizes was not proper. But brushing aside the trial

court's errors and applying "common sense" to the task of interpreting "the face of the complaint", the panel majority concludes:

(1) "the total claim [singular] for punitive damages [plural] is

more likely than not to be for $50,000 or more" and (2) "if the

plaintiffs [plural] were successful in their [plural] p unitive

damages [plural] claim [singular], they [plural] would collect more

than $50,000". In my opinion, those conclusions by the majority

are in direct conflict with Mississippi statutory and case law in

that they purport to make all plaintiffs participate in one single

punitive damage claim; and through the semantical device of

labeling a punitive damage claim a collective claim for jurisdictional amount purposes, the panel majority avoids the clear mandate

of the United States Supreme Court that in suits involving multiple

plaintiffs, the jurisdictional amount is to be determi ned as to

each plaintiff, without aggregating claims among the plai ntiffs.

I respectfully dissent.