United States District Court for the District of Columbia
January 12, 2004.
IN RE LORAZEPAM & CLORAZEPATE ANTITRUST LITIGATION This Opinion applies to: DOROTHY KENDRICK, et al., Plaintiffs,
MYLAN LABORATORIES, INC. et al., Defendants
The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District
Pending before the Court is Plaintiffs' Motion to Remand ("Motion").
Upon careful review of Plaintiffs' motion, Defendants' opposition, and
the entire record herein, the Court will deny the motion.
Plaintiffs initially filed this action in the Circuit Court for Hinds
County, Mississippi, on December 31, 2002, demanding, inter alia,
compensatory damages in an amount less than $74,975 per plaintiff, plus
statutory penalties pursuant to Miss. Code § 75-21-9. See Complaint
at 10. An Amended Complaint was filed on March 23, 2003, and sought
additional relief in the
form of punitive damages plus attorneys' fees and all other expenses and
costs. See Amended Complaint at 10-11. On May 5, 2003, Defendants removed
the case to the United States District Court for the Southern District of
Mississippi based upon complete diversity of the parties and, in light of
the claim for punitive damages and attorneys fees, the fact that the
complaint on its face sought relief in excess of $75,000. See Notice of
Removal at 2-4. On June 4, 2003, Defendants filed a Motion for Judgment
on the Pleadings, arguing, inter alia, that punitive damages are not
recoverable under the Mississippi Antitrust Act ("Act"). See Motion for
Judgment on Pleadings at 8-10. On June 20, 2003, Plaintiffs filed a
pleading in which they "stipulate[d] to Defendants' assertion that
punitive damages (and the related attorneys fees) are not applicable in
this case. . . . [T]herefore, the claims of the Plaintiffs fall below the
$75,000 jurisdictional threshold" and so this case should be remanded.
Opposition to Defendants' Motion for Judgment on the Pleadings at 1.*fn1
Finally, on June 26, 2003, Plaintiffs filed the Motion to Remand, in
which they argue that since "they have bound themselves by the wording of
the Complaints and the stipulation that they are not entitled to punitive
damages," the amount in controversy does not exceed $75,000 per plaintiff
as is required by 28 U.S.C. § 1332. Motion at 2.
"Where both actual and punitive damages are recoverable under a
complaint each must be considered to the extent claimed in determining
jurisdictional amount." Bell v. Preferred Life Assur. Soc. of
Montgomery, Ala., 320 U.S. 238, 240 (1943). "It is well settled that
punitive damages are included in the calculation of the amount in
controversy." Amos v. CitiFinancial Corp., 243 F. Supp.2d 587, 590 (N.D.
Miss. 2003) (citing, inter alia, St. Paul Reinsurance Co., Ltd, v.
Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)). Moreover, "under
Mississippi law the amount of such an alleged award [of punitive damages]
is counted against each plaintiff's required jurisdictional amount."
Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.
1995). This is because
the unique nature of [punitive damages] 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.
Id. at 1333-34. It is also clear that attorney's fees should be factored
into the jurisdictional amount. See Foret v. Southern Farm Bureau Life
Ins., 918 F.2d 534
, 537 (5th Cir. 1991).
In light of the above legal standard, Plaintiffs' demand for relief in
the Amended Complaint leaves no doubt that the alleged amount in
controversy, for jurisdictional purposes, exceeds $75,000 per plaintiff.
If awarded, attorneys' fees combined with the desired compensatory
damages of an amount less than $74,975 per plaintiff could clearly cause
the monetary amount to exceed the jurisdictional limit. Punitive damages,
if warranted, would do the same.
When this case was removed to federal district court on May 5, 2003,
the relief sought in the Amended Complaint of March 23, 2003 controlled
the jurisdictional limit. Plaintiffs may not "return the Complaint to
the damages sought on December 31, 2002 [which were] below $75,000 per
Plaintiff." Motion at 1. The Supreme Court has long ago provided guidance
for a situation such as this:
[I]f, upon the face of the complaint, it is obvious
that the suit cannot involve the necessary amount,
removal will be futile and remand will follow. But the
fact that it appears from the face of the complaint
that the defendant has a valid defense, if asserted,
to all or a portion of the claim, or the circumstance
that the rulings of the district court after removal
reduce the amount recoverable below the jurisdictional
requirement, will not justify remand. And though, as
here, the plaintiff after removal, by stipulation, by
affidavit, or by amendment of his pleadings, reduces
the claim below the requisite amount, this does not
deprive the district court of jurisdiction.
Thus events occurring subsequent to removal which
reduce the amount recoverable, whether beyond the
plaintiff's control or the result of his volition, do
not oust the district court's jurisdiction once it has
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283
, 292-93 (1938)
(footnotes omitted). Plaintiffs themselves indicate the tenuousness of
their argument when they state that "Defendants cannot show that the
amount in controversy now exceeds $75,000 per Plaintiff." Motion at 2
(emphasis added). As previously explained, this is not the standard by
which amount in controversy is measured. "To determine whether the
jurisdiction is present for removal, [courts] consider the claims in the
state court petition at the time they existed at the time of the
removal." Manguno v. Prudential Prop. and Cas. Co., 276 F.3d 720
(5th Cir. 2002).
For the reasons stated above, the Court denies Plaintiffs' Motion to
Remand. An appropriate Order will accompany this Opinion.
Pending before the Court is Plaintiffs' Motion to Remand.[fn1a] For the
reasons stated in the accompanying Memorandum Opinion, it is hereby
ORDERED that the motion is DENIED.