* Circuit Judge of the Eighth Circuit, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-40430

H & D TIRE AND AUTOMOTIVE-HARDWARE INC, ET AL,

Plaintiffs,

H & D TIRE AND AUTOMOTIVE-HARDWARE INC; BEARD PLUMBING CO;

JONES AND JONES, INC.,

Plaintiffs-Appellants,

versus

PITNEY BOWES INC, ET AL,

Defendants,

PITNEY BOWES INC; PITNEY BOWES CREDIT,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

April 30, 2001

ON PETITION FOR PANEL REHEARING

AND REHEARING EN BANC

(Opinion September 27, 2000, 5 th Cir. 2000, ____F.3d____)

Before POLITZ, GIBSON, * and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:1 See H &D Tire and Automotive Hardware, Inc. v. Pitney Bowes

Inc. , 227 F.3d 326 (5th Cir. 2000).

2 Pitney Bowes moved for panel rehearing and rehearing en banc,

following our decision to vacate this case for lack of

jurisdiction. 1 We remain convinced that the federal courts have no

jurisdiction over this case.

It began in a Texas state court in February of 1995.

Plaintiffs, H&D Tire, Beard, and Jones & Jones, sued on behalf of

a class of persons allegedly the vict ims of certain unauthorized

charges Pitney Bowes made when plaintiffs traded up from one piece

of leased equipment to another.

In their state court petition, plaintiffs alleged that their

individ ual damages from the trade-up charges “would not exceed

$30,000.” They also alleged, following Texas practice, that their

damages exceeded “the minimum jurisdictional limits” of the state

court. The plaintiffs also requested punitive damages and

attorneys’ fees. Pitney Bowes removed the case to federal court in

August of 1995. In its removal petition, Pitney Bowes alleged

that: the amount in controversy would exceed $50,000 (then the

jurisdictional minimum for diversity jurisdiction), that

“[p]resumably plaintiffs will seek substantial punitive damages

based upon [Pitney Bowes’] asse rted wealth,” and that punitive

damages could be aggregated across the class to satisfy the

jurisdictional amount.3

Plaintiffs moved for remand and supported their motion with a

declaration stating that each plaintiff’s individual claim “does

not, never did and never will exceed the sum or value of $50,000,”

which calculation included “any claim for actual, exemplary or

other damages.” This reaffirmed their earlier binding responses to

discovery requests filed in state court, which denied that any

individual clai m exceeded $50,000. The motion to remand was

referred to a mag istrate, who determined that punitive damages

could be aggregated across a class for purposes of computing the

jurisdictional amount. He therefore found that the jurisdictional

amount was met. The district court adopted that recommendation and

denied the motion to remand.

In October of 1997 the district court denied class

certification. In its Findings of Fact, the district court found

that H&D Tire’s trade-up charge was $72, that Beard’s was $254, and

that Jones & Jones’s was $990. After fourteen months of

inactivity, the district court ultimately granted Pitney Bowes

summary judgment. Plaintiffs appealed. On appeal, we determined

that federal subject matter jurisdiction was lacking because

aggregation of puniti ve damages was improper, and absent

aggregation the amount in controversy was not met, either on

removal or when judgment was entered in federal court. We vacated

and remanded to the district court with instructions to remand to

state court for lack of jurisdiction.2 See Caterpillar Inc. v. Lewis , 519 U.S. 61, 75-78 (1996).

3 63 F.3d 1326, 1329 (5th Cir. 1995).

4 See Allen v. R&H Oil & Gas Co.

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

(per curiam) (“[T]he panel is of the unanimous view that the

opinion in this case specifically r eflects 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.”).

4 We would not vacate if jurisdiction were present either at the

time of removal or at the time of judgment. 2 In this case,

h owever, the amount in controversy requirement was not met at

either time.

Aggregation was the only basis for sustaining removal in the

face of the capped claims on behalf of individuals. Yet damages of

individual class members cannot be aggregated across a class. That

is the law of the Fifth Circuit, even as regards punitive damages.

The case relied on by Pitney Bowes, Allen v. R&H Oil & Gas Co.

, 3 is

not to the contrary. A llen was limited

– by the panel that decided

it

– to the unique circumstances of Mississippi law, 4 and has no

application here. We cannot “interpret” Rule 23 of the Federal

Rules of Civil Procedure to alter the settled rule that distinct

claims cannot be aggregated to meet the amount in controversy

requirement. Nor have we been pointed to controlling law

establishing that, in claiming punitive damages, class members were

seeking “to enforce a single title or right in which they have a5 Snyder v. Harris , 394 U.S. 332, 335 (1969).

6 Id. at 339-42.

7 This declaration paralleled plaintiffs’ judicially binding

respon ses to interrogatories and requests for admission in state

court. As we have held, “[w]hen specifically contested in a motion

to remand, bare allegations by the remov ing party (much less

statements in passing) have been held insufficient to invest a

fe deral court with jurisdiction.” A sociacion Nacional de

Pescadores v. Dow Quimica

, 988 F.2d 559, 566 (5th Cir. 1993)

(Garwood, J.). Even if plaintiffs’ state court pleadings left

jurisdiction ambiguous, a post-removal affidavit violates no

principle of St. Paul Mercury Indemnity Co. v. Red Cab Co. , 303

U.S. 283 (1938). We make that plain in D ow Quimica

, explaining

5 common and undivide d interest.” 5 As Justice Black explains in

Snyder :

To overrule the aggregation doctrine at this la te date

would run counter to the congre ssional purpose in

steadily increasing through the years the jurisdictional

amount requirement. . . . If there is a present need to

expand the jurisdiction

. . . we cannot overlook the fact

that the Constitution specific ally vests that power in

the Congress, not in the courts. 6

S ome may chafe under this fundamental brought forward by Justice

Black. It remains sound, however ambitious and immodest of

judicial powers one’s view might be.

No individual class member stated a claim approaching the

jurisdictional requirement, then $50,000. The three named

plaintiffs affirmatively documented their damages as $72, $254, and

$990 respectively, and the district court found those damages as a

fact. Pitney Bowes does not challenge these numbers. As we

explained, attorneys for the plaintiffs stated in a declaration

filed with the district c ourt 7 that the amount in controversy forthat “under those circumstances, the court is still examining the

jurisdictional facts as of the time the case is removed, but the

court is consider ing information submitted after removal.” D ow

Quimica , 988 F.2d at 565.

8 In response to requests for admission in state court,

plaintiffs pleaded “Pl aintiff denies that Plaintiff is seeking

attorney fees [on behalf of individual class members] in this

case.” They swore that “plaintiffs’ counsel will request the court

to award attorney fees to plaintiffs’ couns el pursuant to the

common fund doctrine.” Later, in support of the motion to remand,

plaintiffs’ counsel stated “under penalty of perjury on behalf of

each of the Plaintiffs, I hereby confirm and stipulate that the

Plaintiffs are not seeking attorneys’ fees in this case and that

6 any individual plaintiff “doe s not, never did, and never will

exceed the sum or value of $50,000, exclusive of interest and

costs. This includes any claim for actual, exemplary or other

damages.” The plaintiffs further disclaimed any claim for attorney

fees on behalf of any individual class member, in favor of a common

fund rather than the Connecticut statute: As Pitney Bowes

described plain tiffs’ claim in its Brief in Support of Removal,

“[f]ees in a common fund case are extracted from the class damage

recovery, rather than obtained from the losing party.” Defendant’s

only answer to the disclaimer was that “prevailing plaintiffs have

the statutory means of shifting the costs of attorney fees to the

CUTPA defendant.” This is meritless. Defendant argued to the

district court that plaintiffs’ efforts to limit the amount claimed

on behalf of any class member were sufficiently ambiguous that

their pleadings should be ignored. As we explain, even if

plaintiffs’ pre-removal responses were ambiguous, the disclaimers

are clear and speak to the claim at the time of removal. 8Plaintiff’s counsel will request the Court to award attorneys’ fees

to Plaintiff’s counsel pursuant to the common fund doctrine.” We

remain persuaded that if attorneys fees for individual members were

claimed (contrary to the pla intiffs’ pleadings), to a legal

certainty attorneys fees approaching $50,000 for each of the claims

was not reason able. We need not rest there given the explicit

sworn disclaimer of plaintiffs’ counsel, clarifying any ambiguity

in the state court pleadings.

9 In A sociacion Nacional de Pescadores , 988 F.2d at 564 n.4,

in rejecting a similar argument, we observed regarding state

pleadings in a remand case: “The statement in their petition that

‘[d]amages far exceed the mini mum jurisdictional limits of this

court’ furnishes no basis for that inference. The minimum amount

in controv ersy for Texas district courts, although not entirely

clear following recent constitutional and statutory changes . . .

is certainly no more than $500

. . . . Moreover, the claims of all

plaintiffs are aggregated in determining whether this requirement

is met.” (citations omitted).

7 The amount in controversy requirement was not satisfied at the

t ime of judgment for the same reason. Of course the amount in

controversy could o nly be satisfied if at least one of the named

plaintiffs claimed damages in excess of $50,0 00. Yet the

plaintiffs affirmatively disclaimed any such claim, and documented

their actual damages as less than $1,000 each.

Defendants point to sections of the plaintiffs’ complaint that

alleges damages that exceed “the minimum jurisdictional limits of

this court.” 9 This ignores the fact that damages as claimed by the

class and damages claimed by individuals who were class members

were pleaded in separate parts of each of the amended complaints.

Speci fically, the provisions of the complaint relied upon by

defendants claim dama ges on behalf of the individual plaintiffs

and the plaintiff class. These allegations will not support10 See KVOS, Inc. v. Associated Press

, 299 U.S. 269, 277 (1936)

(holding that a general averment that damages will exceed the

jurisdictional requirement is sufficient unless the complaint

contains other averments which “qualify or detract from it in such

measure that when all are considered together it cannot fairly be

said that jurisdiction appears on the face of the complaint”);

Charles Alan Wright, Law of Federal Courts 479 (5th ed. 1994)

(“[A]n allegation that the matter in controversy exceeds, exclusive

of interest and costs, the sum of $50,000 (or whatever other sum a

particular statute may require) is suff icient unless the other

allegations of the complaint show that less than that amount is

involved.”).

8 jurisdict ion because, as we have explained, the claimed damages

cannot be aggregated across a class. In the separate section of

each of their amend ed complaints in which individual claims were

asserted, the plaintiffs alleged that “individual actual dama ges

would not exceed $30,000.” This pleading is not sufficient to

confer federal jurisdiction, and here these separate pleadings are

reinforced by the explicit disclaimer of any damages exceeding that

amount on behalf of any class member. 10

It is ordered that the petition for rehearing is DENIED.

The court having been polled at the request of one of the

members of the cour t and a majority of the judges who are in

regular active service not having voted in favor (Fed. R. App. P.

and 5th Cir. R. 35), the Motion for Rehearing En Banc is DENIED.