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


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  •                  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 plaintiffs" or "plaintiffs") appeal the removal of their
    
    claims to federal court.         They contend that the district court
    
    erred in finding federal subject-matter jurisdiction under 28
    
    U.S.C. § 1332 (diversity of citizenship), because it improperly
    
    "aggregated" 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 plaintiffs
    challenge defendants' assertion of removal jurisdiction.    Because
    
    we find that each plaintiff has an undivided claim for the full
    
    amount 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-ranging, 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 court, asserting that there was complete
    
    diversity of citizenship between the set of plaintiffs and the set
    
    of defendants.   See 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.
    
    
                                     2
         The plaintiffs, in the discovery phase of the case before a
    
    magistrate judge, then moved to remand on the ground that the
    
    amount-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 individual 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 denying remand.              In
    
    upholding the order, the district court reasoned that the aggrega-
    
    tion 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 motion
    
    
         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 consid-
         eration 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
    likewise was denied on the ground that such post-petition amend-
    
    ments 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 district courts of the United States have original
    
    jurisdiction, may be removed by the defendant or the defendants, to
    
    the district 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.2
    
    
    
    
         2
             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 "citizen-
    ship" 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
                                              A.
    
          The Supreme Court has long interpreted § 1332's phrase "matter
    
    in controversy" not to allow multiple plaintiffs to add together
    
    "separate     and    distinct     demands,     unite[d]     for    convenience      and
    
    economy in a single suit," to meet the requisite jurisdictional
    
    level.     See Snyder v. Harris, 
    394 U.S. 332
    , 336 (1969) (quoting
    
    Troy Bank v. A.G. Whitehead & Co., 
    222 U.S. 39
    , 40 (1911));                        Zahn
    
    v. International 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 plain-
    
    tiffs, however, may be permitted in the limited situation where
    
    "two or more plaintiffs unite to enforce a single title or right in
    
    which they have a common and undivided interest."                  Snyder, 394 U.S.
    
    at 335.4    Unfortunately, the "common and undivided" test retains an
    
    amorphous quality.          In applying this standard, many courts have
    
    
    
          3
             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 Improve-
    ments 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 JAMES W. MOORE, MOORE'S FEDERAL PRACTICE
    ¶ 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
    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 pre-
    
    Federal 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 plaintiffs' claims of right
    
    must be "integrated," meaning that their respective rights to
    
    damages arise from the same legal source.           See Texas & Pac. Ry. v.
    
    Gentry, 
    163 U.S. 353
    , 362-63 (1896) (holding aggregation proper
    
    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 action.6              Therefore, a
    
    necessary first step is an examination of the configuration of the
    
    state-law right at issue.           See, e.g., Asociacion Nacional de
    
    Pescadores a Pequena Escala o Artesanales de Colombia (ANPAC) v.
    
    Dow Quimica de Colombia S.A., 
    988 F.2d 559
    , 563-64 (5th Cir. 1993)
    
    
    
          5
             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
    FED. R. CIV. 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 MOORE, 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
    (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 integrated 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 MOORE, supra, ¶ 0.97[3], at 921.8
    
    
          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 plain-
    tiffs 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) (aggrega-
    tion not prevented because recovery from bonds and coupons held in trust
                                                                 (continued...)
    
                                          7
                                           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.9
    
         8
          (...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 separa-
    ble 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' circum-
    stances 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 conceptu-
    ally 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. Signifi-
    cantly, 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
    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."                     City 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 awarded for public
           service in bringing a wrongdoer to account, as an example
    
           9
            (...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."); RESTATEMENT (SECOND) OF TORTS § 908.
    One commentary states that only the decisional law of Connecticut, Michigan,
    and New Hampshire recognizes a compensatory function for punitive damages. 1
    LINDA L. SCHLUETER & KENNETH R. REDDEN, PUNITIVE DAMAGES § 1.4(B), at 17 & n.3 (2d ed. 1989).
    A more recent commentary adds Texas but omits New Hampshire. See 1 JAMES D.
    GHIARDI & JOHN J. KIRCHER, PUNITIVE DAMAGES LAW AND PRACTICE, 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
           to warn and deter others from repeating the 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);                             see
    
    also Wesson v. United States, 
    48 F.3d 894
    , 899-900 (5th Cir. 1995)
    
    (examining nature of punitive damages under Mississippi law).
    
    Mississippi's legislature recently codified this view of the law,
    
    fully effective as of July 1, 1994.                    See MISS. CODE ANN. § 11-1-65
    
    (Supp. 1994).
    
           Punitive damages in Mississippi therefore are fundamentally
    
    collective; their purpose is to protect society by punishing and
    
    deterring wrongdoing.            Id.; see 1 SCHLUETER & REDDEN, supra, §§ 2.0 to
    
    2.2 (examining purposes and policies 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
    , 1190 (Miss.
    
    1990) (examining factors that juries may consider in determining
    
    quantum of punitive damages award);                  see also MISS. CODE ANN. § 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 function only.                              While separate
    
    plaintiffs may seek an award in separate cases,11 the narrow right
    
    
           11
                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 SPECIAL COMM. ON PUNITIVE DAMAGES, PUNITIVE DAMAGES: A CONSTRUCTIVE EXAMINATION 71-85 (1986)
                                                                               (continued...)
    
                                                  10
    to seek such damages exists only because public policy as expressed
    
    through      state   statutes        and     the    common   law   so   dictate.      See
    
    generally 22 AM. JUR. 2D DAMAGES § 734, at 787 (1988) ("So viewed,
    
    punitive damages are allowed on grounds of public policy and in the
    
    interest of society 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 punitive damages, and "it is always within the
    
    discretion of the jury or trial judge to withhold them."                           W. PAGE
    
    KEETON   ET AL.,   PROSSER   AND   KEETON   ON THE LAW OF   TORTS § 2, at 14 (5th ed.
    
    1984);       see Wirtz v. Switzer, 
    586 So. 2d 775
    , 783 (Miss. 1991)
    
    ("The award of punitive damages, along with the amount of such, are
    
    [sic] within 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 of
    
    
    
          11
               (...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 RESTATEMENT (SECOND) OF TORTS § 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
    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 jurisdictional
    
    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 individually does not limit each plaintiff's
    
    alleged entitlement to the award;        it only affects its distribu-
    
    tion.     The limiting factor here was the plaintiffs' decision to
    
    file jointly.
    
         Of    course,   a   defendant's   interest   in   seeing   individual
    
    plaintiffs' cases fail is greatly affected by the procedural
    
    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 fact
    
    
                                       12
    that has long supported the conclusion that the plaintiff's claims
    
    of right are common and undivided.         See, 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.       See 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).13            Such a harsh, and to
    
          13
             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 exem-
           plary damages do not have a compensatory function, difficulty in
           equitably distributing awards is not the prime problem. In other
                                                                  (continued...)
    
                                          13
    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 separate
    
    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.
    
    
    
    
         13
              (...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 destruc-
         tion. 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 exem-
         plary 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 prod-
         ucts, there are no consumers.
    450 F. Supp. at 962.
    
                                        14
                                        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 show that federal
    
    jurisdiction exists, Gaitor v. Peninsular & Occidental S.S. Co.,
    
    
    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 that exceeds the requisite amount in controversy, that
    
    amount controls if made in good faith.        St. 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
    
    course, if a plaintiff pleads damages less than the jurisdiction
    
    amount, he generally can bar a defendant from removal.14            Thus, in
    
    
    
         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
    the typical diversity case, the plaintiff remains the master of his
    
    complaint.
    
         The    converse       situation       to    St.   Paul      Mercury    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 TEX. R. CIV. P. 47;       LA. CODE CIV. PROC. ART. 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
    
    removing defendant must prove by a preponderance of the evidence
    
    that the amount in controversy exceeds $50,000."                          De 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.        See de Aguilar I, 11 F.3d at 57;                cf. 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 petition, but
    
    sometimes by affidavit))that support a finding of the requisite
    
    amount.    See Garza v. Bettcher Indus. Inc., 
    752 F. Supp. 753
    , 763
    
    (E.D. Mich. 1990).
    
         Removal, however, cannot be based simply upon conclusory
    
    
                                                16
    allegations.   Gaus v. Miles, Inc., 
    980 F.2d 564
    , 567 (9th Cir.
    
    1992).   Finally, under any manner of proof, the jurisdictional
    
    facts that support removal must be judged at the time of the
    
    removal, and any post-petition affidavits are allowable only if
    
    relevant to that period of time.      ANPAC, 988 F.2d at 565.
    
         Here, plaintiffs dispute whether the district court applied
    
    the proper burden of proof necessary to determine the "jurisdic-
    
    tional facts" 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' opposition 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
    
    conclusion 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" standard
    
    
                                     17
    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 directly
    
    addressed))allows us to affirm.             The procedural posture of this
    
    case is similar to a FED. R. CIV. P. 12(b)(6) motion or summary
    
    judgment motion.       We apply a like standard of review:            de novo,
    
    applying the same standard of review as should the district court.15
    
    In this case, where the district court is making the "facially
    
    apparent" 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.16              We would review
    
    that determination in a fashion similar to our FED R. CIV. P. 56
    
    review.
    
    
          15
             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, FED. R. CIV. 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 fact-
    finding 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, FED. R. CIV. P. 1, and the fact that such proof is irrelevant and wasteful
    if jurisdiction is facially apparent.
    
                                           18
         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 light 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 the 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 for
    
    
                                    19
    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.
    
    
    
    
                                        20
    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 regarding removability.                       I write
    
    therefore to register my dissent.
    
         I   agree    with   the   majority      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 complaint" 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 where it has its principal place of busi-
    
         ness".      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 corporate defendant a citizen of the State of Missis-
    
         sippi,      which   breaks   the   complete     diversity      between      all
    
         plaintiffs and all defendants required under 28 U.S.C. § 1332
    
    
                                            21
    and violates the requirement of 28 U.S.C. § 1441(b) that none
    
    of the defendants be a citizen 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 plaintiffs' damage
    
    claims occurred on the afternoon of May 29, 1990.                  The
    
    plaintiffs' conclusory allegations of injury and damage on the
    
    face of the complaint 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 the monetary amount of any damages, either
    
    actual or punitive.
    
         d.      Exhibit A to the amended complaint sets forth the
    
    names of all the various plaintiffs, consisting of approxi-
    
    mately 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   complaint   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 the
    
    
                                  22
         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 business 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 its face, therefore, the original complaint was not removable
    
    because it did not demonstrate complete diversity between plain-
    
    tiffs 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 opinion 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 preponder-
    
    ance 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, united
    
    
                                         23
    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 Louisi-
    
         ana, 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.     That   "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 defendant 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",
    
    
                                          24
    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 testi-
    
    mony, 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 unre-
    
    solved:
    
               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 any 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 business 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 are
    
    
                                    25
         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 well 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 disregard 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 essentially
    
    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 arguments of counsel and
         authorities cited finds that each individual plaintiff
         maintains a cause of action for punitive damages and that
         under the circumstances and authorities the motion to
         remand is not well taken and should be denied. (Citing
         cases.)
    
    The cases 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-
    
    
                                         26
    tional amounts 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
    
    with the claim.        Allstate Ins. Co. v. Hilbun, 
    629 F. Supp. 698
    
    (S.D.   Miss. 1988),        and    Atlanta 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 plain-
    
         tiffs    who    thus   have   a   common    and   undivided   interest   in
    
         punitive damages award"; and
    
                 c.     That the "magistrate judge's implicit conclusion
    
    
                                            27
         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 Legisla-
    
    ture adopted a statutory provision dealing with punitive damages,
    
    MISS. CODE ANN. § 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 provisions of this statute in arriving at its
    
    conclusions   that   Mississippi   regards    punitive   damages   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 controlling 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 a
    
    
    
    
                                       28
    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 convincing 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 availability 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   commence   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 award
    
    
         17
            See generally John F. Corlew, An Historical Overview of
    Punitive Damages in Mississippi, 63 Miss. L.J. 583 (1994).
    
                                                   29
    punitive damages and the amounts thereof, which include the nature
    
    and extent of damages sustained by the claimant, 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 review 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 shall be only one single claim for
    
    punitive damages arising out of any one set of circumstances.19
    
    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 guilty
    
    
         18
            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 explo-
    sion in this case.
    
                                     30
    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 compensatory 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 compensatory damages and who proves by "clear and
    
    convincing"      evidence   that   a   defendant   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 entitled to the recovery of those punitive
    
    damages.    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 damage claims by all plaintiffs.
    
    Likewise, 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 depend-
    
         ent upon and appurtenant to the existence of a recovery of
    
    
    
    
                                           31
         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 will 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
    
         deprived of the opportunity to evaluate the differences in
    
         character and amounts 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 punitive
    
    
         20
            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
         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 but 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 multi-
    
         plaintiff suit, as it seems to so plainly say.
    
         This is not a class action.        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   exceed
    
    
                                       33
    $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 preponderance of the evidence the
    
    nature and extent of each plaintiff's injuries and the likely
    
    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
    
    allegation   as   to   the   amount   of   punitive   damages   which   each
    
    plaintiff 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 expect 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
    
    district 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 that 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" in
    
    
                                          34
    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 inter-
    
    preting "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] punitive
    
    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 jurisdic-
    
    tional 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 determined as to
    
    each plaintiff, without aggregating claims among the plaintiffs.
    
    I respectfully dissent.
    
    
    
    
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