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
class members, this Court cannot say to a legal certainty that
the total award will not yield more than $10,000 to each
Alternatively, the jurisdictional amount is met under an
exception to the rule against aggregation of claims by
multiple parties. The settled rule is that "when several
plaintiffs unite to enforce a common and undivided interest,
it is enough if their interests collectively equal the
jurisdictional amount." Pinel v. Pinel, 240 U.S. 594, 596, 36
S.Ct. 416, 60 L.Ed. 817 (1916); see also C. Wright, Law of
Federal Courts 139 n. 8 (3d ed. 1976). The plaintiffs in the
present case have a common and undivided interest in the
recovery of punitive damages against the defendant. In Re
Northern District of California "Dalkon Shield" IUD Products
Liability Litigation, 526 F. Supp. 887 (N.D.Cal. 1981), vacated
and remanded on other grounds, 693 F.2d 847 (9th Cir. 1982).
While no individual plaintiff has a right to an award of
exemplary damages, all plaintiffs have a collective interest in
the creation of a fund sufficient to punish and deter any
alleged misconduct on the part of the defendant. Accordingly,
the Court must look to the amount of the potential fund, and
not the individual awards, for the determination of the amount
in controversy. Id. at 911. Additionally, the plaintiffs
have a common and undivided interest in enjoining the recycling
activity. Based on the above discussion, it is clear that these
amounts exceed the $10,000 requirement. Therefore, this Court's
removal jurisdiction is proper. The Court does not reach the
defendants' contention that § 1441(c) confers jurisdiction over
the less than $10,000 claimants.
Accordingly, plaintiffs' Petition for Remand (Document No.
9) is hereby DENIED. Defendants' Motion to Drop Misjoined
Party (Document No. 3) is hereby GRANTED. Granite City Steel
Corporation is hereby DISMISSED from this case.
IT IS SO ORDERED.