in other unnamed national papers. Advertising in two prominent national newspapers, as defendants suggest, may be found to be the best method of informing the putative class members of the potential radiation dangers. Based on the evidence of the advertising costs submitted by defendants, this court agrees with defendants that their cost to satisfy the injunctive relief requested could exceed $ 50,000. The individual cost to comply with the injunctive relief, however, could be minimal to each class member since the class would probably exceed 100,000 members.
Defendants rely on McCarty v Amoco Pipeline Co.'s "either viewpoint" rule to argue that this court has subject matter jurisdiction because the cost to defendants would exceed $ 50,000. 595 F.2d 389, 393-95 (7th Cir 1979). In McCarty, the defendant removed a state action under diversity of citizenship. Although the benefit to the plaintiff of the injunctive relief in question did not satisfy the requisite amount in controversy, the Court of Appeals for the Seventh Circuit held that a defendant could satisfy the jurisdictional amount in controversy by showing that either the plaintiff's benefit from the injunctive relief or the defendant's cost of complying with the injunctive relief satisfied the amount.
McCarty, however, did not involve a class action, and courts have not applied the "either viewpoint" rule to class actions as defendants request. Defendants argue that "treating class actions as an exception to the "either viewpoint" rule would run afoul of the very policy considerations which compelled the Seventh Circuit to adopt the test in the first place."
With regard to injunctive relief in class actions, this court agrees with the Court of Appeals for the Ninth Circuit that the "'total detriment' is basically the same as aggregation." Snow v Ford Motor Co., 561 F.2d 787, 790 (9th Cir 1977). What defendants seek here is to use the "either viewpoint" rule to aggregate the cost of the injunctive relief in order to satisfy the amount in controversy. That result would "run afoul" of the Supreme Court's rulings that parties cannot aggregate their claims to satisfy the amount in controversy. See Zahn v International Paper Co., 414 U.S. 291, 301, 38 L. Ed. 2d 511, 94 S. Ct. 505 (1973); Snyder v Harris, 394 U.S. 332, 335, 22 L. Ed. 2d 319, 89 S. Ct. 1053 (1969).
The court next addresses the argument that plaintiffs have a common and undivided interest in the relief they request. As the Supreme Court stated in Snyder, parties can aggregate claims in "cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest." The Court, however, never defined "common and undivided interest." As a result, the phrase "common and undivided interest" remains amorphous, with different courts reaching different conclusions when confronting similar issues.
Suits seeking injunctive relief usually present common questions of law or fact. Establishing that common questions exist, as required to satisfy Rule 23(a)(2), however, does not necessarily establish the class members having a common and undivided interest. To establish a common and undivided interest, the moving party must show that the plaintiffs' claims "derive from rights which they hold in group status." Potrero Hill Community Action Committee v Housing Authority of San Francisco, 410 F.2d 974, 978 (9th Cir 1969). In other words, a class has a common and undivided interest "where only the class as a whole is entitled to the relief requested." Poindexter v National Mortgage Corp., 1991 U.S. Dist. LEXIS 19643 at *5 (ND Ill Dec 23, 1991). A court "must look to the underlying causes of action giving rise to a judgment in order to determine whether the plaintiffs' claims can be aggregated to satisfy the jurisdictional amount." Griffith v Sealtite Corp, 903 F.2d 495, 498 (7th Cir 1990).
If the parties claim individual injuries from the underlying causes of action, the claims are separate and distinct and aggregation is not allowed. In this case, only the class, and not individual class members, could request the injunctive relief. See In re Ford Motor Co. Bronco II Liability Litigation, 1996 U.S. Dist. LEXIS 6769 at *21 (ED La May 16, 1996); Earnest v General Motors Corp., 923 F. Supp. 1469, 1472-73 (ND Ala 1996). This court therefore finds that putative class members have a common and undivided interest in the injunctive relief requested.
Having established that plaintiffs have a common and undivided interest in the injunctive relief requested, this court again looks to the "either viewpoint" rule for subject matter jurisdiction. Because the defendants' cost of complying with the requested injunctive relief satisfies the amount in controversy, this court has subject matter jurisdiction over the case. Plaintiffs' motion to remand is denied.
ORDERED: Plaintiffs Carmel Loizon's and Patrick Loizon's motion to remand is denied.
GEORGE W. LINDBERG
DATED: DEC 18 1996