REVISED, May 8, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 97-30148

___________________________

GERALDI NE ARD; LILLIE ATKINS; ANTHONY BANKS; MARY BANKS,

individually and as natural tutrix of her minor children, Earnest

Banks and Travis Thompson; ROOSEVELT BANKS; BERNICE BOND; JOE

BROWN; OTIS BURTON; CLARA BUTLER; FRED BUTLER, JR.; GEORGIA BUTLER,

individually and as natural tutrix of her minor children, Latilda

Butler and Ledell Butler; PHYLLIS BUTLER, individually and as

natural tutrix of h er minor children, Brice Butler and Travis

Butler; WILLIE PAUL BUTLER; CHELIS CAIN; JIMMIE COLEMAN; LOUJ

COLEMAN; JOHN COLEMAN; ALICENA CO LEMAN; JOSEPH COLEMAN; SAMUEL

COLEMAN; EDIS COLEMAN; SYLVIA COLEMAN, individually and as natural

tutrix of her minor child, Travis Duncan; ZOLA COLEMAN,

individually and as natural tutrix of her minor children, Broderick

Coleman and Kendra Coleman; DOROTHY DONAHUE; DE BRA DUNN,

individually and as natural tutrix of her minor children, Joseph

Dunn, Tiffany Dunn and Brittany Dunn; EARL FOREMAN; LISA FOREMAN;

SHIRLEY FOREM AN, individually and as natural tutrix of her minor

children, Shameka Foreman, Theressa Foreman, and Earl Foreman, Jr.;

ELOISE FOSKEY; TERA FOX, individually and as natural tutrix of her

minor child, Damon Fox; CATHERINE GLASS, in dividually and as

natural tutrix of her minor child, Chandra Glass; MARY GILMORE,

individually and as natural tutrix of her minor children, Datrice

Gilmore, Laketha Gilmore, Mona Gilmore and Lake Gilmore; STANLEY

GORDON; FELTON HALL; WARREANER HALL, indivi dually and as natural

tutor of his minor chil d, Alisha Bidon; PRISCILLA HALL,

individually an d as natural tutrix of her minor children, Lavert

Hall and Trendale Hall; JANICE HAMLER, individually and as natural

tutrix of her minor childr en, Aleisha Hamler and Gebrea Hamler;

MARTHA HAMLER, individually and as natural tutrix of her minor

chi ldren, Kaneka Hamler, Dwoyne Atkins, Daquarius Hamler and

Sheilia Hamler; SHARON D. HENDERSON; JEFF HITCHEN; FLOYD HITCHEN;

ROSE HITCHEN, individually and as natural tutrix of her minor

children, Alex D. Hitchen and Floyd Hitchen, Jr.; ARISE HITCHEN,

individually and as nat ural tutrix of her minor child, Tyeka

Hitchen; DAMITA HITCHENS, individually and as natural tutrix of her

minor child, Michael Holland, Jr.; EDWARD HITCHEN; HELEN HITCHEN,

indiv idually and as natural tutrix of her minor child, Lenora

Hitchen; RENA HITCHENS; TIRRELL HARRELL ; DEDRIC HARRELL; ELLISON

HARRELL; KIMBERLY HOLLINS; ROBERT HITCHENS; ELIZABETH HITCHENS;

BUNION HOLLAND; LEOLA HOLLAND, individually and as natural tutrix

of her minor children, Danielle Holland, Denise Holland, Delores

Holland and Stafford Holland, Jr.; HELEN HOLMES, individually and

as natural tutrix of her minor child, Randy Holmes; RIVERS HOLMES;

MIRQUIE HOLMES, individually and as natural tutrix of her minor

children, A. J. Jackson and Wanel l Armstrong; LEOLA HOOFKIN;

DARLENE HORTON; ERIC HUGHES; JOHN L. HUGHES; MELVIN HUGHES; SARAH2

HUGHES; PERCY HUTSON; WILMETA HUTSON, individually and as natural

tutrix of her minor child, Percy Hutson, Jr.; ANNA AUGUSTA JACKSON;

GLENDA C. JACKSON, individually and as natural tutrix of her minor

children, Dakeithi Jackson, Trenise Jackson and Kimberly Jackson;

CLARETHA JAMES , individually and as natural tutrix of her minor

children, Lenche Carter and Quenche Carter; CHARLIE JARRELL; CURTIS

JENKINS, JR.; MARIE JENKINS, individually and as natural tutrix of

her minor children, Mark Jenkins and Curtis Jenkins, III; FRANCIS

JOHNSON; LEVY JOHNSON; LEVY JOHNSON, JR., individually and as

natural tutor of his minor child, Chenea Johnson; KENNY JOHNSON;

LINDA V. JOHNSON, individually and as natural tutrix of her minor

children, Linda Charlene Johnso n and Victoria Johnson; LOUISE M.

JOHNSON, individually and as natural tutrix of her minor children

Dwola Johnson and Michael Johnson; MINNIE JOHNSON; NORWOOD JOHNSON;

VANESSA JOHNSON, individually and as natural tutrix o f her minor

children, Quentin J ohnson and Jeffrey Johnson; WILLIE JOHNSON;

DORIS JYLES, individually and as natural tutrix of he r minor

children , Derrick Jyles, Yasmine Jyles and LaQuinton Jyles;

EARNESTINE JYLES, individually and as natural tutrix of her minor

children, Lance Jyles, Jacqueline Jyles and Jacky Jyles; HERBERT

JYLES; JOSEPH JYLES; LEVERSE JYLES, JR.; RONNIE JYLES; SHEILA

JYLES, individually and as natural tutrix of her minor children,

Steaven Porter, Sheena Porter, Paul Porter and Jessica Port er;

SYLVIA M. JYLES, individually and as natural tutrix of her minor

children, Christi Jyles, Walter Jyles, La quhea Jyles and Jacqtta

Jyles; MARY KEMP, individually and as natural tutrix of her minor

child, Ches ter Kemp; SONIA KINZEY, individually and as natural

tutrix of her minor child, Laquita Knox; DOROTHY KNOX, individually

and as natural tutrix of her minor children, Felix Knox, Jr.,

Deborah Ann Knox and Demetria Knox; FELIX SR. KNOX; MARVIN LEE,

individually and as natural tutor of his minor childre n, Marvin

Lee, Jr. and Shemka Jyles; SHERRI LEE; BELINDA LONDON, individually

and as natural tutrix of her minor children, Brittney London and

Roneca London; FRED LONDON, JR.; JOE JAMES LONDON; LILLIE ROSE

LONDON; LORETTA LONDON, individually and as natural tutrix of her

minor child, Tyneshia London; JAMES MACK; IDELL MASON, individually

and as natural tutrix of her mino r children, Katressa Mason,

Heather Mason, Dairius Mason and Nadia Mason; NED M AYBERRY; MARY

MAYBERRY; LOIS MCCARTNEY; LEANDEROUS MCCLENDON; ANNETTE MCCLENDON,

individually and as natural tutrix of her minor children,

Leanderous McClendon, Jr., Lakisha McClendon and Temeka McClendon;

ROBERT MCCLENDON; PATRICIA MCCLENDON, individually and as natural

tutrix of her minor child, Shanankeia McClendon; SHIRLEY MCCLENDON,

individuall y and as natural tutrix of her minor child, Tyneisha

McClendon; VERNON MCMORRIS, JR.; LINDA K. PATTERSON, individually

and as natural tutrix of her minor children, Tif fany Patterson,

Darcell Rheams and Ernest Rheams; DERRY MITCHELL; DEB BIE PORTER,

individually and as natural tutrix of her m inor child, Andra

Porter; ELI PORTER; SARAH PORTER; FANNIE PORTER; GARY PORTER; JERRY

PORTER; MARY PORTER, individually and as natural tutrix of her

minor child, Jerrica Porter; THOMAS J. PORTER; JONESNESE PORTER,

individually and as natural tutrix of her minor children, Maranda

Porter, Nzinga Porter, Thomas Porter, Jr., Jarod Porter, Shandron

Porter, Ashley Porter and Myran Porter; WILLIE PORTER, individually3

and as natural tutor of his minor children, Kimberly Porter,

Jeremiah Porter, Danielle Porter, Nakia Porter and Daniel Porter;

ROBERT REESE, individually and as natural tutor of his minor child,

Octavia Reese ; CLARA RINGO; JAMES RINGO; CAROLYN RINGO,

individually and as natural tutrix of her minor children, Yolanda

Ringo and James Ringo, Jr.; MILDRED RINGO, individually and as

natural tutrix of her minor children, Terry Ringo and Tammy Ringo;

CARRIE ROBERTSON, individually and as natural tutrix of her minor

child, Jerome Robertson; GERTRUDE ROBINSON, individually and as

natural tutrix of her minor children, Chyneikah Robinson, Candis

Robinson, Corie Robinson, Jessica Robinson, Clarence Robinson and

Robert Robinson; CHANEY ROBERTSON, JR.; BERTHA LEE ROBERTSON,

individually and as natural tutrix of her minor child, Joseph

Rob ertson; RUBY ROBERTSON, individually and as natural tutrix of

her minor children, Lionel Jyles and Herbert Jyles; VERA ROBINSON,

ind ividually and as natural tutrix of her minor child, Allen

Robinson; EMANUEL ROSS; MELVIN ROSS; DELORIS H. SCOTT, individually

and as natural tutrix of her minor child, Joseph Scott; ROOSEVELT

S COTT; JENNIFER SCOTT, individually and as natural tutrix of her

minor child, Brianna Scott; JOHN E. SCOTT, individually and as

natural tutor of his minor child, John Scott; GUS SHROPSHIRE; SALLY

SHROPSHIRE, individually and as natural tutrix of her minor child,

Willie Shropshire; PAMELA SIMMONS, individually and as natural

tutrix of her minor children, La'Clarence Simmons and D'Trentta

Simmons; COLUMBUS SMALL; ARIZOLA SPEARS, individually and as

natural tutrix of her m inor child, Ashley Spears; WENDELL C.

STEWART, individually and as natural tutor of his minor children,

Shanderrecca Stewart and Wendolyn Stewart; GLORIA TANNER;

GLORISTINE T. TANNER; ANDREA TAYLOR, individually and as natural

tutrix of her minor child, Ashley Taylor; BARBARA TAYLOR,

individually and as n atural tutrix of her minor children, Sheena

Taylor and Shayna Taylor; EMMITT TAYLOR, JR.; PAMELA TAYLOR; MARTHA

H. THOMPSON; MELVINA TAYLOR; ROBERT TAYLOR; HARRIE T TAYLOR,

individually and as natural tutrix of her minor children, Darrick

Taylor, Robert Taylor, Jr., and Sharon Taylor; SHARON TAYLOR;

BOBBIE JEAN TILLIS, individually and as natural tutrix of her minor

children, Brikiyok Tillis and Alberta Tillis; LENARD TUCKER; MITTIE

M. TUCKER; MARY LOUISE TURNER, individually and as natural tutrix

of her minor children, Carlos Turner, Lee Turner and Donrico

Tur ner; LYLIE BELL WALLACE; JARON WHITE, individually and as

natural tutor of his minor child, Deionte White; VERIA C. WHITE,

individually and as natural tutrix of her minor children, Jaworsky

White and Deyondra White; WILLIE WHITE; LASHE L WILLIAMS,

individually and as natural tutrix of her minor children,

Christopher W illiams and Dowlin Williams; EMMA WRIGHT; S. A.

WRIGHT; LOUISE WRIGHT; BESSIE WYRE, individually and as natural

tutrix of her minor children, Clifford Wyre and Ashley Wyre; GERALD

WYRE; LEROY WYRE, individually and as natural tutor of his minor

child, Sharoy Wyre; ANGELA H. WRIGHT, individually and as natural

tutrix of her minor children, Bra dy Holmes and Arabia Wright;

MATTIE H. WYRE, individually and as natural tutrix of her minor

child, Leti s ha Pitt; QUAQUITTA MASON; BOBBY JACKSON; DEMETRIA

JACKSON, individually and as natural tutrix of her minor children,

Niescha Jackson, Lakesha Jackson, Bobby Jackson, J r

., Latrisa4

Jackson and Demetrius Jackson; MARION MYLES; ALEISHA MYLES; MELLA

WILLIAMS, individually and as natural tutrix of her minor children,

Nicholas Williams and Kendrick Williams; BRIDGET S. KNIGHTEN; ORA

L. KNIGHTEN; GLORIA COLLINS, individually and on behalf of her

deceased husba nd, Charles Collins, and as natural tutrix of her

minor children, Kendra Collins and Kelli Collins,

Plaintiffs-Appellants,

VERSUS

TRANSCONTINENTAL GAS PIPE LINE CORPORATION,

Defendant-Appellee.

___________________________________________________

Appeals from the United States District Court

For the Middle District of Louisiana

___________________________________________________ April 20, 1998

Before DAVIS, JONES and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Geraldine Ard and approximately 350 other plaintiffs challenge

the district court’s order refusing to remand this case to the

state court. The district court determined that the § 1332

jurisdictional amount was met by aggregating the punitive damage

claims. We reverse and remand for further proceedings consistent

with this opinion.

I.

Geraldine Ard initially filed suit against Transcontinental

Gas Pipe Line Cor poration (Transco) in Louisiana state court for

damages she suffered as a result of a natural gas pipeline

explosion. The natural gas pipeline was owned and operated by

Transco in St. Helena Parish. Approximately 350 individuals,

including several minors, permissively joined A rd’s suit as1 This cause of action arose before the new amount in

controversy requirement of $75,000 went into effect. Federal

Courts Improvement Act of 1996, Pub. L. No. 104-317, 110 Stat. 3847

(1996).

5 plaintiffs. The Plaintiffs sought both compensatory and punitive

damages. The Plaintiffs submitted affidavits to the state court

executed by each individual plaintiff which stipulated that each of

their claims was less than $50,000, and that they would not attempt

to recover an amount in excess of $50,000. In an ex parte order,

the state court accepted the stipulations and directed that they

were considered binding on each plaintiff.

Transco removed the case to federal district court, asserting

jurisdi ction based on diversity of citizenship under 18 U.S.C.

§ 1332. The Plaintiffs moved to remand the case to state court,

alleging that the jurisdictional amount was not satisfied due to

the state court “stipulations” regarding damages. Transco argued

that the punitive damages of all plaintiffs could be aggregated for

purposes of determining the amount in controversy under § 1332. In

the alternative, Transco argued that the Plaintiffs’ affidavits

limiting their recovery were lega lly insufficient, or in the

further alternative, that at least one plaintiff’s claim exceeded

$50,000 and the court w as able to exercise supplemental

jurisdiction over the remaining claims.

The district court denied the Plaintiffs’ Motion to Remand, on

grounds that the punitive damage claims of all Plaintiffs could be

aggregated for purposes of determining the amount in controversy.

The district cour t concluded that the aggregated amount exceeded

the $50, 000 jurisdictional requirement. 1 The district court then6

certified its interlocutory order denying the motion to remand as

suitable for appeal under 28 U.S.C. § 12 92(b). On February 12,

1997, this court granted the Plaintiffs’ Petition for Permission to

Appeal the interlocutory order.

II.

This court’s jurisdiction derives from the district court’s

certification of its interlocutory order denying the mo tion to

remand as suitable for appeal under 28 U.S.C. § 1292(b). Our

jurisdiction is therefore limited to the review of the district

court's determination that the Plaintiffs' punitive damage claims

can be aggregated for the purpose of determining jurisdict ional

amount.

A district court’s denial of a motion to remand is reviewed de

novo

. V asquez v. Alto Bonito Gravel Plant Corp.

, 56 F.3d 689, 692

(5th Cir. 1995).

Although the Supreme Court has never consid ered whether

punitive damage claims from separate plaintiffs may be aggregated

for determinations of jurisdictional am ount, it has considered

whether claims in general can be aggregated. S ee 14A Wright,

Miller and Cooper, Federal Practice a nd Procedure § 3705 (1985).

In Snyder v. Harris

, the Court considered “whether separate and

distinct claims presented by and for various claimants in a class

action may be added together to provide the $10,000 jurisdictional

amount in controver sy.” 394 U.S. 332, 333 (1969). The S nyder

Court upheld the settled rule that “the sepa rate and distinct

claims of two or more plaintiffs cannot be aggregated in order to

satisfy the jurisdictional amount requirement.” Id. at 335. The2 Although it is not important for our analysis, this Circuit

has recognized that Zahn ’s holding that each plaintiff must

independently satisfy the jurisdictional amount has been overruled

d ue to congressional amendment of 28 U.S.C. § 1367. S ee In Re

Abbott Laboratories

, 51 F.3d 524, 529 (5th Cir. 1995). Neither

this holding nor the premise which underlies it affects our analysis in this case.

3 For a somewhat analogous treatment of the aggregation

que stion, s ee Goldberg v. CPC International, Inc.

, in which the

Ninth Circuit held that the attorney’s fees claimed by members of

a class action cannot be aggregated for purposes of determining the

jurisdictional amount. 678 F.2d 1365, 1367 (9th Cir. 1982).

7 Court reaffirmed this principle in later cases. S ee, e.g.

, Zahn v.

International Paper Co.

, 414 U.S. 291 (1973) (reaffirming S nyder

and expanding the nonaggregation rule such that each plaintiff must

independently reach the jurisdictional amount). 2

The circuits have not taken a consistent position on this

question of whether the punitive damages claimed by m ultiple

plaintiffs can be aggregated, and the entire amount allocated to

each plaintiff, for the purpose of determining juris d ictional

amount. The Second Circuit held that punitives may not be

aggregated because “t he class members’ claims are ‘separate and

distinct.’” G ilman v. BHC Securities, Inc.

, 104 F.3d 1418, 1430

(2d Cir. 1997)). The Seventh Circuit followed the same reasoning

in Anthony v. Security Pacific Financial Services

. 75 F.3d 311

(7th Cir. 1996). The panel concluded that “[t]he plaintiffs in

this case would have to recover on average at least $47,118.36 in

punitive damages to satisfy 28 U.S.C. § 1332.” I d. at 315. It is

clear, theref ore, that the panel rejected the possibility of

aggregating the plaintiffs’ punitive da mage claims in order to

satisfy the jurisdictional amount requirement. 3

The Eleventh Circuit reached the opposite result in Tapscott8

v. MS Dealer Service Corp. 77 F.3d 1353 (11th Cir. 1996). In

Tapscott

, it held that due to the nature of punitive damages under

Alabama law an d the particular facts at issue, punitive damages

were properly aggregated. Id. at 1358-59.

Two panels in our own circuit took different ap proaches to

deciding whether to aggregate punitive damages and reached

different results. In L indsey v. Alabama Telephone Co. , the

plaintiffs brought a class action under Alabama law against two

telephone companies. 576 F.2d 593, 593 (5th Cir. 1978). The

plaintiff class alleged that the defendants wrongfully collec ted

deposits by threatening to discontinue service, wrongfully

discontinued services, and misrepresented their authority to charge

deposits. Id. at 593. The panel’s jurisdictional analysis began

with a reci tation of the Supreme Court rule that the claims of

class plaintiffs may not be aggregated to satisfy the

jurisdictional amount. I d. at 594 (citing Snyder v. Harris

, 394

U.S. 332 (1969)).

The panel then consider ed the plaintiffs’ claims to see

whether the $10,000 jurisdictional amount was met. The plaintiffs

claimed $2,000 in compensatory damages. The class sought

$1,000,000 in punitive damages so that the total amount claimed was

$1,002,000. In holding that the plaintiffs had failed to allege

jurisdictional amount, the panel stated “[s]ignificantly, the

complaint nowhere alleges the number of persons in the class, an

allegation that would hav e permitted the court to ascertain what

dollar amount represents the ‘amount in controversy’ for each

member of the class.” I d. The panel concluded that the defendant9

could not show that the class was small enough to result in a

division of the damages that would result in each plaintiff meeting

t he jurisdictional amount, and that the district court therefore

had no jurisdiction over the claim. Id.

Lindsey therefore applies Snyder 's reasoning that compensatory

damage claims cannot be aggregated for jurisdictional purposes to

the context of punitive damage claims.

In Allen v. R & H Oil & Gas Co.

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

this cou rt held that the nature of punitive damages under

Mississippi law required that the punitive damage claim of all

plaintiffs should be aggregated, and the entire amount allocated to

each plaintiff, to determine the jurisdictional amount. In A llen

,

512 plain tiffs joined together to assert tort claims in a

Mississippi state court against the defendants for damages

resulting from an explosion and release of toxic fumes. I d. at

1329. The plaintiffs sought both compensatory and punitive

damages, but did not allege specific amounts of damages. I d. The

action was removed to federal court based on diversity

jurisdiction. In finding the requisite jurisdictional amount, the

district court “reasoned that the aggregation of the potential

punitive d amages award was proper, as each plaintiff shared a

common and undivided interest in the claim.” Id.

The Allen panel held that under Mississi ppi law, punitive

damages are “fundamentally collective,” the purpose of which is “to

protect s ociety by punishing and deterring wrongdoing.” I d. at

1 333. The panel further concluded that in Mississippi, punitive

d amages are “not compensatory,” and therefore are “individual10

awards in function only,” and that they are awarded at the judge’s

discretion. I d. at 1333. The panel concluded: “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.” Id. at 1335.

The Allen panel emphasized, however, that its decision was

driven by the peculiar nature of punitive damages under Mississippi

state law. In response to a Petition for Rehearing and Suggestion

for Rehearing En Banc, the panel stated:

the panel is of the unanimous view that the opinion in

this case specifically reflects a result under the

Mississippi law of punitive damages and is not to be

construed as a comment on any similar case that might

arise under the law of any other state.

Allen v. R & H Oil & Gas Co. , 70 F.3d 26, 26 (5th Cir. 1995). It

is therefore clear to us that Allen departs from Lindsey solely

becau se of the peculiar nature of punitive damages under

Mississippi law, and does not purport to establish a precedent for

aggregation of punitive damage claims asserted under federal law or

the law of any other state.

In summary, Lindsey holds that ordinarily the punitive damage

claims of multiple plaintiffs may not be aggregated for purposes of

determining jurisdictional amount. In Allen , the panel held that

due to the peculiar nature of Mississippi law, it was appropriate

to aggregate puniti ve damage claims of multiple plaintiffs and

attribute the aggregated amount to each individual plaintiff. It

i s unclear to us what Mississippi law regarding punitive dama ges

drove the Allen panel to depart from Lindsey ’s rule, but we find no4 The Appellee also argues that some of the affidavits

Plaintiffs filed purporting to limit each claim to less than the

jurisdictional amount were not effective to accomplish this result

and therefore the affidavits cannot defeat removal. The district

court will have an opportunity to consider this argument on remand.

11 principle in Louisiana law regarding the nature of punitive damages

that permits us to depart from Lindsey

. We therefore hold that in

t his case, the punitive damage claims of the multiple plaintiffs

should not be aggregated, and once aggregated, attributed to each

individual plaintiff for determinations of jurisdictional amount.

We therefore disagree with the district court's conclusion

that Plaintiffs' punitive damage claims can be aggregated for

purposes o f determining jurisdictional amount. Accordingly, we

remand this case to the district court for further proceedings

consistent with this opinion. 4

REVERSED and REMANDED.