H&D Tire & Automotive-Hardware Inc. v. Pitney Bowes Inc.

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                             No. 99-40430




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

                                                          Plaintiffs,

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

                                              Plaintiffs-Appellants,

                                versus

PITNEY BOWES INC, ET AL,

                                                          Defendants,

PITNEY BOWES INC; PITNEY BOWES CREDIT,

                                                Defendants-Appellees.




             Appeal from the United States District Court
                   for the Eastern District of Texas


                            April 30, 2001

                   ON PETITION FOR PANEL REHEARING
                         AND REHEARING EN BANC

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


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

PER CURIAM:

     *
         Circuit Judge of the Eighth Circuit, sitting by designation.
     Pitney Bowes moved for panel rehearing and rehearing en banc,

following    our    decision     to     vacate   this       case    for    lack    of

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

jurisdiction over this case.



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

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

a class of persons allegedly the victims of certain unauthorized

charges Pitney Bowes made when plaintiffs traded up from one piece

of leased equipment to another.

     In their state court petition, plaintiffs alleged that their

individual damages from the trade-up charges “would not exceed

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

damages exceeded “the minimum jurisdictional limits” of the state

court.      The    plaintiffs    also    requested      punitive        damages   and

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

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

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

jurisdictional       minimum     for     diversity       jurisdiction),           that

“[p]resumably plaintiffs will seek substantial punitive damages

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

damages could      be   aggregated      across   the    class      to   satisfy   the

jurisdictional amount.

     1
       See H&D Tire and Automotive Hardware, Inc. v. Pitney Bowes
Inc., 227 F.3d 326 (5th Cir. 2000).

                                         2
       Plaintiffs moved for remand and supported their motion with a

declaration stating that each plaintiff’s individual claim “does

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

which calculation included “any claim for actual, exemplary or

other damages.” This reaffirmed their earlier binding responses to

discovery requests filed in state court, which denied that any

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

referred to a magistrate, who determined that punitive damages

could be aggregated across a class for purposes of computing the

jurisdictional amount.          He therefore found that the jurisdictional

amount was met. The district court adopted that recommendation and

denied the motion to remand.

       In   October      of     1997    the       district     court     denied     class

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

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

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

inactivity, the district court ultimately granted Pitney Bowes

summary judgment.        Plaintiffs appealed.             On appeal, we determined

that   federal       subject    matter    jurisdiction         was   lacking      because

aggregation      of     punitive       damages      was      improper,    and      absent

aggregation the amount in controversy was not met, either on

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

and remanded to the district court with instructions to remand to

state court for lack of jurisdiction.



                                              3
     We would not vacate if jurisdiction were present either at the

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

however, the amount in controversy requirement was not met at

either time.

     Aggregation was the only basis for sustaining removal in the

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

individual class members cannot be aggregated across a class. That

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

The case relied on by Pitney Bowes, Allen v. R&H Oil & Gas Co.,3 is

not to the contrary.     Allen was limited – by the panel that decided

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

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

Rules of Civil Procedure to alter the settled rule that distinct

claims cannot be aggregated to meet the amount in controversy

requirement.      Nor   have   we   been   pointed   to   controlling   law

establishing that, in claiming punitive damages, class members were

seeking “to enforce a single title or right in which they have a




     2
         See Caterpillar Inc. v. Lewis, 519 U.S. 61, 75-78 (1996).
     3
         63 F.3d 1326, 1329 (5th Cir. 1995).
     4
       See Allen v. R&H Oil & Gas Co., 70 F.3d 26 (5th Cir. 1995)
(per curiam) (“[T]he panel is of the unanimous view that the
opinion in this case specifically 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.”).

                                     4
common and undivided interest.”5          As Justice Black explains in

Snyder:

     To overrule the aggregation doctrine at this late date
     would run counter to the congressional purpose in
     steadily increasing through the years the jurisdictional
     amount requirement. . . . If there is a present need to
     expand the jurisdiction . . . we cannot overlook the fact
     that the Constitution specifically vests that power in
     the Congress, not in the courts.6

Some may chafe under this fundamental brought forward by Justice

Black.     It   remains   sound,   however   ambitious   and   immodest   of

judicial powers one’s view might be.

     No individual class member stated a claim approaching the

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

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

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

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

explained, attorneys for the plaintiffs stated in a declaration

filed with the district court7 that the amount in controversy for


     5
         Snyder v. Harris, 394 U.S. 332, 335 (1969).
     6
         Id. at 339-42.
     7
       This declaration paralleled plaintiffs’ judicially binding
responses to interrogatories and requests for admission in state
court. As we have held, “[w]hen specifically contested in a motion
to remand, bare allegations by the removing party (much less
statements in passing) have been held insufficient to invest a
federal court with jurisdiction.”        Asociacion Nacional de
Pescadores v. Dow Quimica, 988 F.2d 559, 566 (5th Cir. 1993)
(Garwood, J.).   Even if plaintiffs’ state court pleadings left
jurisdiction ambiguous, a post-removal affidavit violates no
principle of St. Paul Mercury Indemnity Co. v. Red Cab Co., 303
U.S. 283 (1938). We make that plain in Dow Quimica, explaining

                                     5
any individual plaintiff “does not, never did, and never will

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

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

damages.” The plaintiffs further disclaimed any claim for attorney

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

fund       rather   than   the   Connecticut     statute:    As   Pitney   Bowes

described plaintiffs’ claim in its Brief in Support of Removal,

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

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

only answer to the disclaimer was that “prevailing plaintiffs have

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

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

district court that plaintiffs’ efforts to limit the amount claimed

on behalf of any class member were sufficiently ambiguous that

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

plaintiffs’ pre-removal responses were ambiguous, the disclaimers

are clear and speak to the claim at the time of removal.8


that “under those circumstances, the court is still examining the
jurisdictional facts as of the time the case is removed, but the
court is considering information submitted after removal.” Dow
Quimica, 988 F.2d at 565.
       8
       In response to requests for admission in state court,
plaintiffs pleaded “Plaintiff denies that Plaintiff is seeking
attorney fees [on behalf of individual class members] in this
case.” They swore that “plaintiffs’ counsel will request the court
to award attorney fees to plaintiffs’ counsel pursuant to the
common fund doctrine.” Later, in support of the motion to remand,
plaintiffs’ counsel stated “under penalty of perjury on behalf of
each of the Plaintiffs, I hereby confirm and stipulate that the
Plaintiffs are not seeking attorneys’ fees in this case and that

                                         6
     The amount in controversy requirement was not satisfied at the

time of judgment for the same reason.              Of course the amount in

controversy could only be satisfied if at least one of the named

plaintiffs   claimed   damages   in       excess   of   $50,000.   Yet   the

plaintiffs affirmatively disclaimed any such claim, and documented

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

     Defendants point to sections of the plaintiffs’ complaint that

alleges damages that exceed “the minimum jurisdictional limits of

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

class and damages claimed by individuals who were class members

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

Specifically, the provisions of the complaint relied upon by

defendants claim damages on behalf of the individual plaintiffs

and the plaintiff class.         These allegations will not support



Plaintiff’s counsel will request the Court to award attorneys’ fees
to Plaintiff’s counsel pursuant to the common fund doctrine.” We
remain persuaded that if attorneys fees for individual members were
claimed (contrary to the plaintiffs’ pleadings), to a legal
certainty attorneys fees approaching $50,000 for each of the claims
was not reasonable.    We need not rest there given the explicit
sworn disclaimer of plaintiffs’ counsel, clarifying any ambiguity
in the state court pleadings.
     9
       In Asociacion Nacional de Pescadores, 988 F.2d at 564 n.4,
in rejecting a similar argument, we observed regarding state
pleadings in a remand case: “The statement in their petition that
‘[d]amages far exceed the minimum jurisdictional limits of this
court’ furnishes no basis for that inference. The minimum amount
in controversy for Texas district courts, although not entirely
clear following recent constitutional and statutory changes . . .
is certainly no more than $500 . . . . Moreover, the claims of all
plaintiffs are aggregated in determining whether this requirement
is met.” (citations omitted).

                                      7
jurisdiction because, as we have explained, the claimed damages

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

each of their amended complaints in which individual claims were

asserted, the plaintiffs alleged that “individual actual damages

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

confer federal jurisdiction, and here these separate pleadings are

reinforced by the explicit disclaimer of any damages exceeding that

amount on behalf of any class member.10

     It is ordered that the petition for rehearing is DENIED.

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

members of the court and a majority of the judges who are in

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

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




     10
       See KVOS, Inc. v. Associated Press, 299 U.S. 269, 277 (1936)
(holding that a general averment that damages will exceed the
jurisdictional requirement is sufficient unless the complaint
contains other averments which “qualify or detract from it in such
measure that when all are considered together it cannot fairly be
said that jurisdiction appears on the face of the complaint”);
Charles Alan Wright, Law of Federal Courts 479 (5th ed. 1994)
(“[A]n allegation that the matter in controversy exceeds, exclusive
of interest and costs, the sum of $50,000 (or whatever other sum a
particular statute may require) is sufficient unless the other
allegations of the complaint show that less than that amount is
involved.”).

                                8