Ard v. Transcontinental Gas ( 1998 )

REVISED, May 8, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 97-30148
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GERALDINE 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 her minor children, Brice Butler and Travis
Butler; WILLIE PAUL BUTLER; CHELIS CAIN; JIMMIE COLEMAN; LOUJ
COLEMAN; JOHN COLEMAN; ALICENA COLEMAN; 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; DEBRA DUNN,
individually and as natural tutrix of her minor children, Joseph
Dunn, Tiffany Dunn and Brittany Dunn; EARL FOREMAN; LISA FOREMAN;
SHIRLEY FOREMAN, 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, individually 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, individually and as natural
tutor of his minor child, Alisha Bidon; PRISCILLA HALL,
individually and as natural tutrix of her minor children, Lavert
Hall and Trendale Hall; JANICE HAMLER, individually and as natural
tutrix of her minor children, Aleisha Hamler and Gebrea Hamler;
MARTHA HAMLER, individually and as natural tutrix of her minor
children, 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 natural 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,
individually 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 Wanell Armstrong; LEOLA HOOFKIN;
DARLENE HORTON; ERIC HUGHES; JOHN L. HUGHES; MELVIN HUGHES; SARAH
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 Johnson 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 of her minor
children, Quentin Johnson and Jeffrey Johnson; WILLIE JOHNSON;
DORIS JYLES, individually and as natural tutrix of her 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 Porter;
SYLVIA M. JYLES, individually and as natural tutrix of her minor
children, Christi Jyles, Walter Jyles, Laquhea Jyles and Jacqtta
Jyles; MARY KEMP, individually and as natural tutrix of her minor
child, Chester 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 children, 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 minor children, Katressa Mason,
Heather Mason, Dairius Mason and Nadia Mason; NED MAYBERRY; 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,
individually 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, Tiffany Patterson,
Darcell Rheams and Ernest Rheams; DERRY MITCHELL; DEBBIE PORTER,
individually and as natural tutrix of her minor 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, individually
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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
Robertson; RUBY ROBERTSON, individually and as natural tutrix of
her minor children, Lionel Jyles and Herbert Jyles; VERA ROBINSON,
individually 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
SCOTT; 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 minor 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 natural tutrix of her minor children, Sheena
Taylor and Shayna Taylor; EMMITT TAYLOR, JR.; PAMELA TAYLOR; MARTHA
H. THOMPSON; MELVINA TAYLOR; ROBERT TAYLOR; HARRIET 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
Turner; 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; LASHEL WILLIAMS,
individually and as natural tutrix of her minor children,
Christopher Williams 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, Brady Holmes and Arabia Wright;
MATTIE H. WYRE, individually and as natural tutrix of her minor
child, Letisha Pitt; QUAQUITTA MASON; BOBBY JACKSON; DEMETRIA
JACKSON, individually and as natural tutrix of her minor children,
Niescha Jackson, Lakesha Jackson, Bobby Jackson, Jr., Latrisa
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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 husband, 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.
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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 Corporation (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 Ard’s suit as
4
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
jurisdiction 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 legally insufficient, or in the
further alternative, that at least one plaintiff’s claim exceeded
$50,000 and the court was 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 court concluded that the aggregated amount exceeded
the $50,000 jurisdictional requirement.1 The district court then
1
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
certified its interlocutory order denying the motion to remand as
suitable for appeal under 28 U.S.C. § 1292(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 motion 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 jurisdictional
amount.
A district court’s denial of a motion to remand is reviewed de
novo. Vasquez v. Alto Bonito Gravel Plant Corp., 56 F.3d 689, 692
(5th Cir. 1995).
Although the Supreme Court has never considered whether
punitive damage claims from separate plaintiffs may be aggregated
for determinations of jurisdictional amount, it has considered
whether claims in general can be aggregated. See 14A Wright,
Miller and Cooper, Federal Practice and 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 controversy.” 394 U.S. 332, 333 (1969). The Snyder
Court upheld the settled rule that “the separate and distinct
claims of two or more plaintiffs cannot be aggregated in order to
satisfy the jurisdictional amount requirement.” Id. at 335. The
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Court reaffirmed this principle in later cases. See, e.g., Zahn v.
International Paper Co., 414 U.S. 291 (1973) (reaffirming Snyder
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 multiple
plaintiffs can be aggregated, and the entire amount allocated to
each plaintiff, for the purpose of determining jurisdictional
amount. The Second Circuit held that punitives may not be
aggregated because “the class members’ claims are ‘separate and
distinct.’” Gilman 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.” Id. at 315. It is
clear, therefore, that the panel rejected the possibility of
aggregating the plaintiffs’ punitive damage claims in order to
satisfy the jurisdictional amount requirement.3
The Eleventh Circuit reached the opposite result in Tapscott
2
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
due to congressional amendment of 28 U.S.C. § 1367. See 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
question, see 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
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 and the particular facts at issue, punitive damages
were properly aggregated. Id. at 1358-59.
Two panels in our own circuit took different approaches to
deciding whether to aggregate punitive damages and reached
different results. In Lindsey 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 collected
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 recitation of the Supreme Court rule that the claims of
class plaintiffs may not be aggregated to satisfy the
jurisdictional amount. Id. at 594 (citing Snyder v. Harris, 394
U.S. 332 (1969)).
The panel then considered 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 have permitted the court to ascertain what
dollar amount represents the ‘amount in controversy’ for each
member of the class.” Id. The panel concluded that the defendant
8
could not show that the class was small enough to result in a
division of the damages that would result in each plaintiff meeting
the 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 court 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 Allen,
512 plaintiffs 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. Id. at
1329. The plaintiffs sought both compensatory and punitive
damages, but did not allege specific amounts of damages. Id. 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 damages award was proper, as each plaintiff shared a
common and undivided interest in the claim.” Id.
The Allen panel held that under Mississippi law, punitive
damages are “fundamentally collective,” the purpose of which is “to
protect society by punishing and deterring wrongdoing.” Id. at
1333. The panel further concluded that in Mississippi, punitive
damages are “not compensatory,” and therefore are “individual
9
awards in function only,” and that they are awarded at the judge’s
discretion. Id. 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
because 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 punitive damage claims of multiple plaintiffs and
attribute the aggregated amount to each individual plaintiff. It
is unclear to us what Mississippi law regarding punitive damages
drove the Allen panel to depart from Lindsey’s rule, but we find no
10
principle in Louisiana law regarding the nature of punitive damages
that permits us to depart from Lindsey. We therefore hold that in
this 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 of determining jurisdictional amount. Accordingly, we
remand this case to the district court for further proceedings
consistent with this opinion.4
REVERSED and REMANDED.
4
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