The opinion of the court was delivered by: Foreman, Chief Judge:
Plaintiffs filed this action in the Circuit Court, Third
Judicial Circuit, Madison County, Illinois, alleging that the
defendants, by recycling coal by-products into their coke
ovens, intentionally exposed the plaintiffs to toxins and
carcinogens. The plaintiffs seek to represent a class of all
persons who have worked for the Granite City plant since June
of 1982 and all non-employees who have lived within a five
mile radius of the plant since June of 1982. The Complaint
specifically alleges that some class members have suffered
damages less than $10,000 and some have suffered damages in
excess of $15,000. In addition, the plaintiffs seek punitive
damages, attorney's fees, and equitable relief in that the
defendants be required to provide and pay for complete
physical testing and medical attention to all class members,
and that the defendants cease the recycling procedure. The
defendants removed the case to the United States District
Court for the Southern District of Illinois.
The main motion before the Court is plaintiffs' Petition to
Remand. Plaintiffs contend that since some class members'
claims are for less than $10,000, the case cannot be removed.
Defendants argue that the prayer for punitive damages,
attorney's fees, and full medical attention bring the claims
of these class members over the $10,000 barrier, but that in
any event, this Court has jurisdiction over the less than
$10,000 claims pursuant to 28 U.S.C. § 1441(c) since these
claims are separate and independent.
28 U.S.C. § 1441(a) provides 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 defendants to
the federal district court embracing the place where the state
action is pending. Since this is not a federal question case,
the Court would have proper removal jurisdiction if the case
met the requirements of a diversity action. Generally, a
diversity action requires that there be complete diversity of
citizenship between the parties and that the amount in
controversy exceeds $10,000. See 28 U.S.C. § 1332. The removing
party has the burden of establishing diversity of citizenship
together with the requisite jurisdictional amount. McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80
L.Ed. 1135 (1936).
There appears to be complete diversity in this case. In a
class action,*fn1 the courts look only to the citizenship of
the representative parties. Snyder v. Harris, 394 U.S. 332,
340, 89 S.Ct. 1053, 1058, 22 L.Ed.2d 319 (1969). Hence, the
named plaintiffs are all residents of Illinois. The two named
defendants are Granite City Steel Company and Granite City
Steel Division of National Steel Corporation. Granite City
Steel Division is a Delaware corporation with its principal
place of business in the State of Pennsylvania. Granite City
Steel Company is an Illinois corporation. However, the
defendants have moved to drop Granite City Steel Company as a
misjoined party stating that it is merely a holding company,
and as such is not a necessary, indispensable, or real party in
interest. Plaintiffs respond by asking that the motion to drop
a misjoined party be
denied until such time as the plaintiffs have an opportunity
to discover the role of the holding company. In any event, the
plaintiffs did not raise the citizenship problem in their
Petition to Remand. Further, this Court has already held that
Granite City Steel Company (the holding company) has no
interest in such a lawsuit. Niemeyer v. Granite City Steel
Company, No. 83-3333 (S.D.Ill. Dec. 16, 1982) (order denying
motion to remand). Therefore, the defendants' motion to drop
the misjoined party is granted.
The Supreme Court has held that for class actions all class
members must meet the amount in controversy requirement when
jurisdiction is asserted on the basis of § 1332. Zahn v.
International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d
511 (1974). The principle is equally applicable to remand
situations. See 1A Moore's Federal Procedure ¶ 0.157. The
defendants do not contest this fact, but rather assert that
punitives, attorney's fees, and the value of equitable relief
sought should be included in determining whether the amount in
controversy requirement has been met.
With regard to attorney's fees, they may be included in the
jurisdictional sum if they are allowed by statute or provided
for by contract. Wright, Miller & Cooper, Federal Practice and
Procedure: Jurisdiction § 3712. Additionally, [w]hen the
applicable substantive law makes the award of attorney's fees
discretionary, a claim that this discretion should be exercised
in favor of the plaintiffs makes the requested fee part of the
amount in controversy. Id. One court has held, however, that
when the court's discretion forms the basis for the award of
attorney's fees, the plaintiff must allege a specific amount.
Blank v. Preventive Health Programs, Inc., 504 F. Supp. 416
(S.D.Ga. 1980). In an event, under Illinois law, there exists
no statutory authorization for attorney's fees nor does the
Court have the power to award them. Therefore, attorney's fees
cannot be included in the calculation.
With respect to punitive damages, the Supreme Court has held
that they can be included in determining the amount in
controversy requirement if under the governing law of the suit
they are recoverable. Bell v. Preferred Life Assurance Soc.,
320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943). Thus, if the
plaintiffs can recover punitive damages under Illinois law, the
amount of such damages must be included in the calculation.
Jeffries v. Silvercup Bakers, Inc., 434 F.2d 310 (7th Cir.
Punitive damages are allowed in Illinois where a defendant
has acted wilfully or with such extreme negligence as to
indicate reckless disregard for the safety of others.
Hazelwood v. Illinois Central Gulf R.R., 114 Ill. App.3d 703,
71 Ill.Dec. 320, 450 N.E.2d 1199 (1983). The plaintiffs in the
instant case seek punitive damages because the defendants acted
intentionally. Therefore, punitive damages must be taken into
account in determining the amount in controversy.
With regard to the equitable relief sought, a valuation of
the amount in controversy is a complex task. A court must not
only undertake to evaluate intangible rights, but it must
decide what rights are involved in the controversy and from
whose viewpoint their value is to be measured. McCarty v. Amoco
Pipeline Company, 595 F.2d 389 (7th Cir. 1979). In McCarty, the
Seventh Circuit adopted the "either viewpoint rule" for removal
of cases. Under this rule, the test for determining the amount
in controversy is the pecuniary result of either party which
the judgment would directly produce.
In Count II of their Complaint, the plaintiffs ask for
"full, complete, and proper medical attention for all class
members" and that the Court take "any action it deems
necessary and proper to prevent future injuries to the class
members." The defendants, by way of affidavit, state that the
costs for a detailed physical examination would be in excess
of $150.00 per person, amounting to $450,000 for all of its
employees. They also state that it would cost them in excess
of $10,000 each year to
dispose of the by-products rather than recycle them. Thus,
under the "either viewpoint rule," the Court must take into
consideration over $450,000 as the valuation of the equitable
Hence, based on the above discussion, the Court must add an
amount for punitive damages and an amount for the equitable
relief sought to the compensatory damages in determining
whether the jurisdictional minimum has been met. This final
total must appear to a "legal certainty" to be less than the
jurisdictional amount to justify remand. 1A Moore's Federal
Practice ¶ 0.157.
In the present case, the Court is ever mindful of the fact
that awards for punitive damages can reach staggering amounts.
Although the plaintiffs do not seek a specific dollar figure
for the punitive damages the Court will assume for purposes of
this determination that this amount may be "staggering" if the
plaintiffs' allegations are true. Therefore, in viewing the
claims for compensatory damages, punitive damages, and
equitable relief, together with an estimate for the number of