IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20561

Summary Calendar

FELICIA CARTER; ANGELLIA DOZIER; NEVALYN FARLEY, 

 Plaintiffs - Appellants

v.

WESTLEX CORPORATION; MCCALL-TL, INCORPORATED; PARK 

PLACE LX OF TEXAS, LIMITED; TOYOTA MOTOR SALES USA, 

INCORPORATED, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:14-CV-3644

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiffs–Appellants own vehicles that have suffered heat damage and 

filed this action individually and on behalf of a putative class of all Texas 

residents whose vehicles have suffered similar damage, alleging various 

theories of recovery. Defendants–Appellees removed this case to federal court, 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 8, 2016

Lyle W. Cayce

Clerk

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asserting that federal jurisdiction existed under the Class Action Fairness Act. 

Plaintiffs moved to remand the case to state court, but the district court denied 

the motion. Plaintiffs appeal, arguing that Defendants failed to establish that 

the amount in controversy exceeded the $5 million threshold as required by 

the Class Action Fairness Act when Defendants introduced evidence of the 

average costs of repairing class members’ vehicles and calculated a total 

amount in controversy of over $5 million. Because the district court committed 

no error in relying on the evidence and calculations of Defendants, we AFFIRM 

the judgment of the district court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs–Appellants Felicia Carter, Angellia Dozier, and Nevalyn 

Farley (collectively, “Plaintiffs”) filed suit against Toyota Motor Sales USA, 

Inc., (“TMS”) and several dealerships (collectively, “Defendants”) in Texas 

state court on November 6, 2014. Plaintiffs asserted, inter alia, claims of 

products liability, fraud, and breach of implied warranty based on alleged heat 

damage to the dashboards and other interior components of their Lexus and 

Toyota vehicles. Plaintiffs filed this action individually and on behalf of a 

putative class of all Texas residents who own a Toyota or Lexus vehicle that 

suffered from the alleged heat damage. Plaintiffs alleged that the putative 

class consisted of more than one thousand members, and although they did not 

specify a particular amount in controversy, Plaintiffs alleged that the collective 

damages exceeded $100,000. 

Defendants timely removed the case on December 19, 2014, arguing in 

their notice of removal that the district court had subject matter jurisdiction 

under the Class Action Fairness Act (“CAFA”). Defendants contended that 

CAFA jurisdiction existed because at least one member of the putative class 

was a citizen of a different state than at least one defendant and that the 

aggregate number of class members was at least 100. Defendants also argued 

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that the amount in controversy for all putative class members exceeded $5 

million. 

Defendants based their argument that the amount in controversy 

exceeded $5 million on the declaration of Mark Rhymer, who was the manager 

of the Body B/C Group in Customer Quality Services at TMS. Based on 

personal knowledge, he stated that the average cost to repair a heat-damaged 

dashboard on a Toyota or Lexus vehicle was “approximately $1,215.45” and 

that the cost to repair a heat-damaged door panel was “approximately

$1,663.42.” Noting that the average cost vehicle owners must pay was higher 

(because of the cost of parts), Defendants calculated that the total economic

damages Plaintiffs placed in controversy were at least $2,881,737.1 Noting 

that Plaintiffs also requested exemplary damages, Defendants calculated that 

at least $5,763,474 in exemplary damages were in controversy under Texas 

law, which limits exemplary damages to twice the amount of economic 

damages. Finally, Defendants noted that Plaintiffs requested attorney’s fees 

and, using twenty percent of total damages as a conservative benchmark, 

argued that attorney’s fees pushed the amount in controversy well beyond $5 

million. 

On January 14, 2015, Plaintiffs moved to remand the case to state court, 

challenging Defendants’ damages calculations and arguing that the amount of 

potential damages was not in excess of $5 million. In doing so, Plaintiffs did 

not challenge specific components of Defendants’ damages calculations or 

submit any evidence of their own. The district court denied the motion to 

remand on March 17, 2015. After Plaintiffs filed an amended complaint,

 

1 Defendants calculated this total cost based on 1,001 class members, as Plaintiffs 

alleged that the putative class exceeded 1,000 members. Defendants calculated a total of at 

least $2,881,737, but we note that: 1,001(1,215.45 + 1,663.42) = 2,881,748.87. 

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Defendants moved to dismiss the amended complaint.2 The district court 

granted Defendants’ motion to dismiss, dismissing all of Plaintiffs’ claims with 

prejudice on August 26, 2015. Plaintiffs timely appealed. On appeal, Plaintiffs 

challenge only the district court’s denial of their motion to remand.

II. STANDARD OF REVIEW

“CAFA gives federal courts jurisdiction over certain class actions . . . .” 

Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 552, (2014). 

This court reviews a district court’s denial of a motion to remand for lack of 

jurisdiction under CAFA de novo. Preston v. Tenet Healthsystem Mem’l Med. 

Ctr., Inc., 485 F.3d 793, 796 (5th Cir. 2007); see also Rainbow Gun Club, Inc. 

v. Denbury Onshore, L.L.C., 760 F.3d 405, 408 (5th Cir. 2014). Although 

federal courts often apply what the Supreme Court has called a presumption 

against removal, see, e.g., Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th 

Cir. 2000) (“[D]oubts regarding whether removal jurisdiction is proper should 

be resolved against federal jurisdiction.”), the Court has clarified that “no 

antiremoval presumption attends cases invoking CAFA, which Congress 

enacted to facilitate adjudication of certain class actions in federal court.” 

Dart, 135 S. Ct. at 554. 

III. CAFA JURISDICTION WAS PROPER

Because Plaintiffs have only challenged the district court’s conclusion

that Defendants established jurisdiction under CAFA on appeal, we only 

address whether the district court erred by not remanding this case to state 

court. Relevant to the instant case, CAFA grants subject matter jurisdiction 

to federal courts over a case where “the matter in controversy exceeds the sum 

or value of $5,000,000, . . . any member of a class of plaintiffs is a citizen of a 

 

2 As part of their motion to dismiss, Defendants noted that TMS had voluntarily 

agreed to extend the warranties of the affected vehicles to offer repairs for heat-damaged 

components, thereby mooting Plaintiffs’ claims.

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State different from any defendant,” and “the number of members of all 

proposed plaintiff classes in the aggregate is [not] less than 100.” 28 U.S.C. 

§ 1332(d)(2), (5)(B). Plaintiffs challenge only the district court’s conclusion 

that the amount in controversy exceeded $5 million, arguing that Defendants’ 

amount-in-controversy estimates, on which the district court relied, were 

grossly inflated.3 We disagree and find no error in the district court’s 

conclusion that jurisdiction under CAFA was appropriate in this case. Remand 

to state court was, therefore, not required. 

In Dart, the Supreme Court outlined the procedures and standards for 

asserting, challenging, and evaluating allegations concerning the amount in 

controversy for putative class actions removed under CAFA. First, “a 

defendant’s notice of removal need include only a plausible allegation that the 

amount in controversy exceeds the jurisdictional threshold,” Dart, 135 S. Ct.

at 554, and this “allegation should be accepted when not contested by the 

plaintiff or questioned by the court,” id. at 553; see also 28 U.S.C. § 1446(a). 

Next, “[i]f the plaintiff contests the defendant’s allegation,” then “both sides 

submit proof and the court decides, by a preponderance of the evidence, 

whether the amount-in-controversy requirement has been satisfied.” Dart, 135 

S. Ct. at 553–54; see also 28 U.S.C. § 1446(c)(2)(B) (“[R]emoval . . . is proper on 

the basis of an amount in controversy asserted [by the defendant] if the district 

 

3 We note that the district court committed no error in concluding that CAFA’s other 

jurisdictional requirements were satisfied in this case. Plaintiffs are citizens of Texas while 

TMS is a citizen of California, so minimal diversity exists here. See 28 U.S.C. § 1332(d)(2)(A). 

The proposed plaintiff class exceeds 100, as Plaintiffs propose a class of over 1,000 

individuals. See 28 U.S.C. § 1332(d)(5)(B). We further note that the “local controversy” 

exception to jurisdiction under CAFA does not defeat jurisdiction here. See 28 U.S.C. § 

1332(d)(4)(A). Because a “class action has been filed asserting the same or similar factual 

allegations against any of the defendants,” the district court was not required to decline 

CAFA jurisdiction in this case. 28 U.S.C. § 1332(d)(4)(A)(ii); see Perez v. G.F.B. Enters., 

L.L.C., No. 15-cv-21172-KING (S.D. Fla. filed Mar. 25, 2015) (involving a class action in 

which the plaintiffs assert similar allegations against some of the defendants in the instant 

case). 

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court finds, by the preponderance of the evidence, that the amount in 

controversy exceeds [the jurisdictional threshold].”). 

Here, Plaintiffs contested Defendants’ allegations as to the amount in 

controversy. But in doing so, Plaintiffs introduced no evidence of the amount 

in controversy themselves, and on appeal they only criticize Defendants’ 

evidence and the way in which the district court interpreted that evidence. 

Defendants’ primary evidence was the declaration of Mark Rhymer. Rhymer 

stated, based on personal knowledge, that the average costs to repair a heatdamaged dashboard and door panel were approximately “$1,215.45” and 

“$1,663.42,” respectively. Based on there being 1,001 class members and 

assuming each member required both repairs, Defendants calculated a total of 

at least $2,881,737 in economic damages and, based on Texas law limiting 

exemplary damages to twice the amount of economic damages, a total of at 

least $5,763,474 in exemplary damages. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 41.008(b) (allowing up to “two times the amount of economic damages” in 

exemplary damages). We see no error in the district court’s conclusion that 

Defendants established, by a preponderance of the evidence, that the amountin-controversy requirement was satisfied. 

Plaintiffs first criticize Defendants’ amount-in-controversy calculations 

as based solely on the unsupported, general, and conclusory declaration of 

Rhymer. However, Rhymer stated that he had personal knowledge of matters 

related to the repair of heat-damaged vehicle interiors, and Plaintiffs have 

introduced no evidence of any kind to suggest that Rhymer’s estimates were 

inaccurate. Accordingly, the district court committed no error in relying on 

these estimates. Plaintiffs further criticize Defendants’ estimates as based on 

the assumption that each class member would require both dashboard and 

other interior component repairs when Plaintiffs never alleged that all class 

members would require both types of repairs. However, in their state court 

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complaint, Plaintiffs clearly alleged that class members “suffered damage to 

the dashboard and various interior components” and that members “required 

repairs to the dashboard and interior” components. Given these allegations, 

we find no error in the district court’s reliance on Defendants’ calculations 

based on all class members requiring both types of repairs. See Robertson v. 

Exxon Mobil Corp., No. 15-30920, 2015 WL 9592499, at *2 (5th Cir. Dec. 31, 

2015) (noting that the required demonstration of the amount in controversy 

concerns “everything [the plaintiff] seeks,” not only what “the plaintiff is likely 

to win” (quoting Berniard v. Dow Chem. Co., 481 F. App’x 859, 862 (5th Cir. 

2010) (per curiam) (unpublished)). 

Plaintiffs also fault Defendants for including the maximum amount of 

exemplary damages in their amount-in-controversy calculations. As the court 

in Robertson explained, it is “what the plaintiff is claiming” and not what “the 

plaintiff is likely to . . . be awarded” that determines whether CAFA’s 

jurisdictional amount requirement is satisfied. Id. at *2 (quoting Berniard, 

481 F. App’x at 862); see also Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1337 

(5th Cir. 1995) (including punitive damages in the amount-in-controversy 

calculation). We find no error in including exemplary damages in the amountin-controversy calculation. Because we agree with Defendants that the 

combined economic and exemplary damages sought by Plaintiffs exceeded

CAFA’s jurisdictional threshold, we need not and do not consider what amount 

of attorney’s fees, if any, should be included in the amount-in-controversy 

calculation. 

Plaintiffs also argue that Defendants’ decision to voluntarily extend the 

warranties of vehicles affected by heat damage reduces the amount in 

controversy. This argument is unpersuasive because the existence of the 

“warranty enhancement program” did not affect what Plaintiffs sought in this 

case—the plaintiffs continued to seek economic and exemplary damages after 

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the establishment of this program. See Robertson, 2015 WL 9592499, at *2 

(noting that the amount in controversy is based on what the plaintiff seeks). 

Even if we were to accept Plaintiffs’ argument that the existence of this 

program affects the amount-in-controversy calculation, repairs under this 

program did not become available until after this case was removed. As the 

Supreme Court has explained “[e]vents occurring subsequent to the institution 

of suit which reduce the amount recoverable below the statutory limit do not 

oust jurisdiction.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 

289–90 (1938); see also Marcel v. Pool Co., 5 F.3d 81, 84 (5th Cir. 1993) (“[W]e 

evaluate jurisdictional amount as of the moment of removal”).4

Overall, Plaintiffs failed to introduce any evidence suggesting that 

Defendants’ evidence presented an inaccurate picture of the amount in 

controversy, and Plaintiffs have not demonstrated that the district court 

incorrectly interpreted Defendants’ evidence or calculations. Accordingly, we 

hold that the district court committed no error in concluding that jurisdiction 

under CAFA was proper or in denying Plaintiffs’ motion to remand. 

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

 

4 Finally, Plaintiffs contend that Defendants’ admission in a separate but related 

litigation that it was unclear whether the amount in controversy exceeded $5 million in that 

case demonstrates that the jurisdictional amount requirement was not satisfied here. We do 

not address this argument because it was not properly raised in the district court. FDIC v. 

Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (“If an argument is not raised to such a degree 

that the district court has an opportunity to rule on it, we will not address it on appeal.”).

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